Gujarat High Court

Shantaben Wd/O Chelji Kalidas Patel vs Nareshbhai Narayanbhai Patel on 8 August, 2025

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                           C/SCA/11025/2021                                    ORDER DATED: 08/08/2025

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                   R/SPECIAL CIVIL APPLICATION NO. 11025 of 2021

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                                   SHANTABEN WD/O CHELJI KALIDAS PATEL & ANR.
                                                    Versus
                                     NARESHBHAI NARAYANBHAI PATEL & ANR.
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                     Appearance:
                     MR DA SANKHESARA(5955) for the Petitioner(s) No. 1,2
                     MR VISHVAJITSINH D CHAUHAN(10160) for the Respondent(s) No. 1
                     MR.KISHAN PRAJAPATI(7074) for the Respondent(s) No. 1
                     NOTICE SERVED for the Respondent(s) No. 2
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                       CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                        Date : 08/08/2025

                                                         ORAL ORDER

1. Rule returnable forthwith. Learned Advocate Mr. Divyang

Joshi waives service of notice of Rule on behalf of respondent

No.1.

2. Heard learned Advocate Mr. D. A. Sankhesara for the

petitioners and learned Advocate Mr. Divyang Joshi for the

respondent No.1. Though served, none appears for the

respondent No.2.

3. The present writ application is filed under Article 227 of the

Constitution of India, seeking the following reliefs:

"A. The Hon'ble Court may be pleased to issue writ of certiorari and /or any other appropriate writ, direction and order to quash and set aside the order dated 19.6.2021 passed by the learned Principal

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Senior Civil Judge, Idar, on the application filed at Exh. 14 in Special Summary Suit No. 2 of 2018 and further be pleased to grant unconditional leave to the defendants to defend in Special Summary Suit No. 2 of 2018;

B. Pending hearing and final disposal of the petition, Your Lordships be pleased to stay the implementation, operation and execution of the 19.6.2021 passed by the learned Principal Senior Civil Judge, Idar, on application filed at Exh. 14 in Special Summary Suit No. 2 of 2018 and further be pleased to stay further proceedings of Special Summary Suit No. 2 of 2018;

C. To pass such other and further order/s necessary in the interest of justice."

4. As far as possible, the parties will be referred to as per their

original positions before the Trial Court.

5. The short facts of the case appear to be that:

5.1. The petitioners herein are the original defendant Nos. 1 and

3 in Summary Suit No. 2 of 2018, which was filed by

respondent No. 1 herein. Upon service of the summons for

judgment, leave to defend application came to be filed by the

petitioners. After hearing the parties, the Trial Court vide the

order dated 19th June, 2021, has granted conditional leave to

defend in favour of the petitioners, thereby directing the

petitioners to deposit a sum of Rs.4,00,000/- with the Trial

Court.

5.2. Feeling aggrieved and dissatisfied with impugned order, the

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original defendant Nos.1 and 3 have preferred the present

writ application.

6. At the outset, learned Advocate Mr.Sankhesara submitted

that the attention of the Trial Court was drawn to the fact

that the drawer of the cheque i.e. Cheljibhai Kalidas Patel,

who happens to be husband and father of the petitioners

herein, died in the year 2017. Post-dated cheque dated 6th

June, 2018 was deposited by the plaintiffs and was

dishonoured on 11th August, 2018, when the drawer of the

cheque died prior to its presentation, no liability could have

casted upon the defendants, being his family members.

7. It is further submitted that despite the aforesaid facts was

brought to the notice of the Trial Court while submitting the

leave to defend application, no reasons was assigned by Trial

Court while passing the impugned order. Learned Advocate

Mr.Sankhesara submits that the order is non-speaking to the

extent having not dealt with the grounds of leave to defend

application, which ought to have been taken care of, while

granting leave to defend in favour of the defendants.

8. Per contra, learned Advocate Mr. Joshi, appearing for the

plaintiffs, would submit that as such there is no error, much

less any gross error of law, committed by the Trial Court

while granting conditional leave to defend. It is submitted

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that against the amount of cheque of Rs.14,00,000/-, only

Rs.4,00,000/- is directed to deposited by defendants as a

condition for leave to defend the summary suit, which is

neither perverse nor erroneous. Learned Advocate Mr. Joshi

further submitted that the defendants have agreed in

presence of late Chelji Kalidas Patel that the amount which is

mentioned in the cheque will be honoured at the time of its

presentation and when such cheque was dishonoured, the

liability of defendants would arise and thus, they are liable to

pay the amount. Nonetheless, learned Advocate Mr.Joshi is

unable to countenance the fact that there is no specific

reasons assigned by the Trial Court dealing with the ground

raised in the leave to defend application. So, he would

request this Court that if the impugned order is quashed and

set-aside, the matter may be remanded back to the Trial

Court for its proper adjudication on its merits after giving an

opportunity of hearing to all parties concerned.

9. Having heard the learned Advocates appearing for the

respective parties, prima facie, it appears that the grounds

which are raised in the leave to defend application are not

discussed by Trial Court while partly allowing the leave to

defend application. The issue which is germane in the matter

is whether defendants would be held liable to pay any

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amount towards a cheque which was drawn by late Chelji

Kalidas Patel during his lifetime in favour of plaintiffs, which

was undisputedly presented after his death. Such aspect of

the matter is not at all discussed and answered by Trial Court

while giving conditional leave to defend the suit in favour of

the defendants. To that extent, the impugned order is

erroneous and perverse and requires interference by this

Court. After examining the matter in detail and also the

submissions made by learned Advocates for the respective

parties, this Court is of the opinion that impugned order is

required to be quashed and set-aside and the matter is

required to be remanded back to the Trial Court to decide

leave to defend and summons for judgment applications

afresh.

10. In view of the foregoing reasons, the impugned order dated

19th June, 2021 passed by Principal Senior Civil Judge, Idar

below Exh.14 and below Exh.22 in Special Summary Suit

No.2 of 2018 is hereby quashed and set-aside. Both these

impugned applications i.e. Exh.14 and Exh.22, filed in Special

Civil Suit No.2 of 2018 are restored back on their original

file.

11. The Trial Court is hereby directed to hear and decide afresh

both these applications (Exh.14 and Exh.22) filed in Special

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Civil Suit No.2 of 2018 at the earliest after giving an

opportunity of hearing to all parties concerned, but the same

shall be adjudicated not later than 31st December, 2026.

12. It is further made clear that this Court has neither gone into

nor examined the merits of the matter, but has quashed the

impugned order only on the ground that it does not found any

reasons for granting conditional leave in favour of the

petitioners. Therefore, the Trial Court is requested to decide

both the aforesaid applications independently, without being

influenced by any of the observations made by this Court or

made in the impugned order itself, but will have to decide the

matter in accordance with law by passing reasoned order.