Gujarat High Court
Yashika Sandeep Budhrani vs Sandeep Baldev Budhrani on 20 February, 2025
NEUTRAL CITATION
C/SCA/15220/2019 ORDER DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15220 of 2019
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF)
NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 15220 of 2019
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YASHIKA SANDEEP BUDHRANI & ORS.
Versus
SANDEEP BALDEV BUDHRANI
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Appearance:
MR.ADITYA J PANDYA(6991) for the Petitioner(s) No. 1,2,3
NISHITH P ACHARYA(9308) for the Petitioner(s) No. 1,2,3
MR VIVEK V BHAMARE(6710) for the Respondent(s) No. 1
P V BRAHMBHATT(7659) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 20/02/2025
ORAL ORDER
1. The present application is filed under Article 227 of the
Constitution of India asking for the following reliefs:-
"(A) YOUR LORDSHIP be pleased to allow this petition and be
pleased to quash and set aside the order dated 30.08.2019 passed
below exhibit 14 in Summary Suit No. 6 of 2019 by the Id. 7th
Addl. Senior Civil Judge, Vadodara and be further pleased to grant
unconditional leave to the defendants to defend the Summary Suit
No. 06 of 2019.
(B) During the pendency and till final disposal of this petition,
YOUR LORDSHIP be pleased to stay the further proceedings of
Summary Suit NO. 6 of 2019 pending before the Id. 7th Add.
Senior Civil Judge, Vadodara.
(C) YOUR LORDSHIP be pleased to grant any other further remedy
that may deem fit in the eyes of justice, equity and good
conscience."
2. At the outset, learned advocate Mr. Vivek V. Bhamare
appearing for the respondent No.1 - original plaintiff, under the
NEUTRAL CITATION
C/SCA/15220/2019 ORDER DATED: 20/02/2025
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instructions of his client, states that the original plaintiff does not
press the summon for judgment filed by the plaintiff below Exh.11
in Special Summary Suit No. 06 of 2019 pending before the
Principal Senior Civil Judge, Vadodara.
3. In view of the above, the impugned order passed below
Exh.40 in a leave to defend application filed by the defendant
would not survive. The impugned order dated 30.08.2019 passed
below Exh.14 by 7th Additional Senior Civil Judge, Vadodara in
Special Summary Suit No.06 of 2019 is hereby quashed and set
aside.
4. Now, the learned advocate Mr. Bhamare, at this stage, would
further request this Court that in inadvertence and under the
mistake and belief, the plaintiff had filed a summary suit before the
civil court instead of filing such suit before the family court under
the Family Courts Act, 1984.
5. So, the learned counsel Mr. Bhamare for the plaintiff submits
that the plaintiff may be permitted to withdraw the Special Civil
Suit No.06 of 2019 wrongly filed before the Civil Court, Vadodara
with a liberty to file fresh suit before the family court concerned as
per the provisions of the Family Courts Act, 1984 and further,
requested that benefit of Section 40 of the Limitation Act, 1963
may also be granted in favour of the plaintiff.
6. Per contra, learned counsel Mr. Aditya J. Pandya appearing
for the petitioner - defendant would state that it is open for the
plaintiff to withdraw the summary suit filed by him and he may file
an appropriate suit before the family court.
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C/SCA/15220/2019 ORDER DATED: 20/02/2025
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7. Nevertheless, the learned counsel Mr. Pandya would submit
that so far as the period of limitation is concerned in filing this
fresh suit before the family court concerned, with prejudice to the
rights and contentions to defend the applicability of Section 14 of
the Limitation Act, 1963 to such fresh suit to be filed by the
plaintiff / husband, an appropriate order may be passed by this
Court.
8. After hearing the learned advocates for the respective
parties, I am of the view that let the respondent - plaintiff herein
may apply to the Civil Court, Vadodara for withdrawal of Special
Summary Suit No. 06 of 2019 seeking a liberty to file fresh family
suit before the family court as per the provisions of Family Courts
Act, 1984.
9. If such an application is filed by the plaintiff before the Civil
Court, it is requested to the Civil Court to grant such permission in
the interest of justice as considering the nature of controversy
involved in the suit and considering the provisions of Sections 7
and 8 of the Family Courts Act, 1984, a competent Court of law
would be the family court and not the civil court to decide the
nature of controversy involved in this suit.
10. Once such Special Summary Suit No.06 of 2019 will be
withdrawn by the plaintiff, as aforesaid, it is open for the plaintiff to
file necessary family suit before the competent family court as per
the provisions of Family Courts Act, 1984 wherein, it is also open
for the plaintiff to seek an exemption / condonation of delay in filing
such suit by seeking a prayer to exclude the period as per Section
14 of the Limitations Act, 1963.
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C/SCA/15220/2019 ORDER DATED: 20/02/2025
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11. If such prayer is made by the plaintiff / husband, after
hearing the petitioner herein - wife, an appropriate order may be
passed by the Family Court on such application in accordance with
law.
12. It is made clear that this Court has neither gone into nor
examined the merits of the suit and impugned order has been
quashed and set aside as the original plaintiff has not pressed /
withdrawn his summon for judgment.
13. Thus, in view of the aforesaid, the present petition is
disposed of accordingly, with no order as to costs. In view of the
disposal of the main matter, the connected civil application stands
disposed of.
(MAULIK J.SHELAT,J)
SAHIL S. RANGER
