Gujarat High Court
Kantaben Manjibhai Detroja vs Shantaben Devjibhai Savaliya on 25 August, 2025
NEUTRAL CITATION
C/SCA/11789/2025 ORDER DATED: 25/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11789 of 2025
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KANTABEN MANJIBHAI DETROJA
Versus
SHANTABEN DEVJIBHAI SAVALIYA & ORS.
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Petitioner(s) No. 1
MR RAHUL K DAVE(3978) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 25/08/2025
ORAL ORDER
1. Heard learned advocate Mr. Kirtidev R. Dave for the
petitioner.
2. At the outset, this Court raised the query about the
maintainability of the impugned application filed before the
appellate Court concerned being CMA No. 12 of 2023
thereby, the petitioner herein sought for relief of final
decree is concerned.
3. Learned advocate Mr. Dave candid in his submission
that instead of filing such application before the trial Court
concerned, inadvertently, the petitioner happens to be
original plaintiff had preferred the impugned application
before the appellate Court, thereby, requested to pass final
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C/SCA/11789/2025 ORDER DATED: 25/08/2025
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decree on the basis of preliminary decree. He would thus
request this Court that in view of such inadvertent mistake,
the petitioner may be permitted to withdraw the impugned
application so filed before the appellate Court with a liberty
to file an appropriate application seeking appropriate relief
of final decree before the trial Court concerned.
3.1 At the same time, learned advocate Mr. Dave would
request this Court that in case where such an application will
be filed by the petitioner herein- original plaintiff before the
trial Court concerned, the same may be decided by the trial
Court independently, without being influenced by any
observations so made by the appellate Court in its judgment/
order dated 11.04.2025, as the impugned application itself is
not maintainable and, therefore, any order passed by the
appellate Court would be a non-est order in the eye of law.
4. Having heard learned advocate Mr. Dave for the
petitioner and upon consideration of the query raised by this
Court, prima facie, it appears that the impugned application
being CMA No. 12 of 2023, filed by the petitioner before the
appellate Court seeking a final decree, is not maintainable.
Inasmuch as the suit was filed before the trial Court wherein
no preliminary decree was passed in favour of the plaintiff,
thereby they had approached the appellate Court, who
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C/SCA/11789/2025 ORDER DATED: 25/08/2025
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accepted the prayer thereby passed preliminary decree,
which was confirmed by this Court while dismissing the
second appeal.
5. Nonetheless, the fact remain that final decree ought to
have been passed by the trial Court not by the appellate
Court concerned. To that extent, the impugned application
itself is misconceived before the appellate Court and
unfortunately, without noticing such aspect of the matter,
the appellate Court has decided it on its merit which it could
not have done so.
6. It is now well settled legal position of law that if any
application/ appeal is not maintainable before the Court
concerned and any order is passed, such order has no effect
in the eye of law and it would be treated as nonest order as
it is without jurisdiction.
7. In view of the same, permission as prayed for is hereby
granted. It is open for the petitioner/plaintiff of Regular Civil
Suit No. 25 of 1977 filed before the Civil Judge (Junior
Division), Visavadar to file an appropriate application seeking
appropriate relief praying for passing of final decree before
the trial Court concerned. Once, such an application will be
filed by the petitioner herein, the same shall be considered
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by the trial Court in accordance with law after giving
opportunity of hearing to all the parties concerned and
requires to decide such application without being influenced
by any observation so made by the the appellate Court vide
its judgment and order dated 11.4.2025 passed in Misc.
Application No. 12 of 2023.
8. In view of the aforesaid, the present writ application is
disposed of with the aforesaid observation, direction and
liberty reserved in favour of the petitioner. It is made clear
that this Court has neither gone into nor examined the
merits of the matter.
9. This Court is conscious of the fact that such order is
passing without hearing the other side, in a case where the
respondents herein are aggrieved by passing of this order, it
is open for them to file necessary application seeking
modification/ recalling of this order within a period of one
month from the date of receipt of copy of this order.
Direct service is permitted.
(MAULIK J.SHELAT,J)
SALIM/
