Gujarat High Court

Hiraben Wd/O Ishwarbhai Nathabhai ... vs Nandaben Wd/O Amarsinh Motibhai Parmar on 25 April, 2025

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                              C/SCA/5059/2025                            ORDER DATED: 25/04/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/SPECIAL CIVIL APPLICATION NO. 5059 of 2025

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                            HIRABEN WD/O ISHWARBHAI NATHABHAI PATEL (DELETED VIDE
                                  ORDER DATED 16.10.2018 VIDE EXH. 141) & ANR.
                                                    Versus
                               NANDABEN WD/O AMARSINH MOTIBHAI PARMAR & ORS.
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                       Appearance:
                       MR. JAY M THAKKAR(6677) for the Petitioner(s) No. 1,2
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                          CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                     Date : 25/04/2025

                                                      ORAL ORDER

1. Learned advocate Mr.Jay M. Thakkar tenders a draft

amendment. The amendment is taken on record and it is

hereby allowed and to be carried out forthwith by the

petitioners.

2. Learned advocate Mr. Thakker has also submitted that

an additional affidavit of the petitioners dated 24.04.2025

whereby it has been contended that apropos to the order

impugned in the present writ application, the petitioners have

submitted an application below Exhibit 199 on 23.04.2025 in

the Special Civil Suit No.109 of 2000 before the Trial Court,

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thereby, the Trial Court was requested to draw the decree as it

has dismissed the suit on merits as well.

2.1. Learned advocate Mr. Thakker would submit that Trial

Court vide its order dated 23.04.2025 has rejected such

application of petitioners, thereby refused to draw the decree,

and in that situation, petitioners would not be in a position to

prefer an appeal. Initially, the present writ application is filed

seeking following relief:-

"a. YOUR LORDSHIPS may be pleased to admit and allow the present Special Civil Application;

b. YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction and thereby be pleased to quash and set aside the impugned order dated 20.03.2025 passed below Exh.1, 190 & 193 by learned Principal Senior Civil Judge, Anand in Special Civil Suit No. 109/2000 (Annexure 'A') and thereby be pleased to reject the application vide exh.190 and allow the application vide exh. 193, in the interest of justice;

c. YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction and thereby be pleased to quash and set aside the impugned order dated 12.01.2023 passed below Exh.172 by learned Principal Senior Civil Judge, Anand in Special Civil Suit No. 109/2000 (Annexure 'B') and further be pleased to allow application below Exh. 172, in interest of justice;

d. Pending hearing and final disposal of present Application, YOUR LORDSHIPS may be pleased to stay the effect, implementation and execution of the impugned order dated 20.03.2025 passed below Exh.1, 190 & 193 by learned Principal Senior Civil Judge, Anand in Special Civil Suit No.

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109/2000, in interest of justice;

e. By way of ad-interim relief, YOUR LORDSHIPS may be pleased to extend the relief granted vide order dated 21.03.2025 in an application below exh. 196 by learned Principal Senior Civil Judge & Additional Chief Judicial magistrate, Anand (Annexure - 'J'), in the interest of justice;

f. YOUR LORDSHIPS may be pleased to grant any other and further relief(s) as this Hon'ble Court deems fit and proper, in the interest of justice."

2.2. Thereafter, during the pendency of the present writ

application, the Trial Court appears to have passed an order on

23.04.2025 below Exhibit 199 which is also sought to be

challenged by way of draft amendment which is today allowed

by this Court.

2.3. Learned counsel Mr. Thakker, under the instruction of

his clients, would not pass the present writ application. So far

as prayers made in original writ application being para 15a to

f but restricting the writ application so far as para 14-CC.

2.4. Learned advocate Mr. Thakker would also seek liberty

of this Court to permit the petitioners to challenge the order

dated 20.03.2025 passed by the Trial Court below Exhibit 1

read with Exhibit 191 and 193 by way of substantive regular

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civil appeal as well as the order dated 20.01.2023 passed

below Exhibit 172 by the Trial Court before the Appellate

Court.

3. The permission, as sought for, is hereby granted. It is

open for the petitioner to challenge the aforesaid order before

the Appellate Court by way of substantive Regular Civil Appeal

as available under Section 96 read with Order XLI of the Civil

Procedure Code, 1908 (hereinafter referred to as "CPC").

4. Now, the present writ application is confined to the order

dated 23.04.2025 passed by the Trial Court, thereby it refused

to draw the decree. It is deplorable state of affair on the part

of Trial Court not to draw the decree when it has dismissed

the suit on merits as observed in the impugned order dated

23.04.2025 impugned in the writ application. It is worth to

reproduce a cryptic order passed by the Trial Court below

Exhibit 199 which reads as under:-

"Heard Shree P.P. Patel Ld. Advocate for Plaintiff. Plaintiff in original Special Civil Suit No.109/2000 has

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preferred the present application. Perused the application. Special Civil Suit No.109/2000 has been dismissed by passing the order on merits below exhibits-1, 190 & 193 on 20.03.2025. So, the present application can not be entertained, accordingly disposed of. Order accordingly."

5. It is incumbent upon the Trial Court to draw decree once

it decides the suits on merits and passed the judgment. It is

worth to note two provisions of CPC, which cast such duty

upon the Trial Court, i.e., Section 33 read with Order 20 Rule

6-A of CPC, which reads as under:-

"33. Judgment and decree.--The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.

ORDER XX Judgment and decree

[6A. Preparation of decree.--(1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced. (2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the court shall for the purposes of rule 1 of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose."

6. Thus, we have much dwell into the matter and this Court

can only observe the Trial Court failed in its duty to draw

decree once it dismissed the suit on merits.

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7. Thus, in view of the aforesaid facts and the provision of

law, it is clear like a day that the impugned order dated

23.04.2025 passed below Exhibit 199 in Special Civil Suit

no.109 of 2000 by the Principal Senior Civil Judge, Anand, is

hereby quashed and set aside. Consequently, the Trial Court is

hereby directed draw decree within a week from the date of