Gujarat High Court
Patel Narendrakumar Trikamlal vs Chimanbhai Naranbhai Patel on 24 July, 2025
NEUTRAL CITATION
C/SCA/9915/2025 ORDER DATED: 24/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9915 of 2025
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PATEL NARENDRAKUMAR TRIKAMLAL
Versus
CHIMANBHAI NARANBHAI PATEL & ORS.
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Appearance:
MR KUNAL S SHAH(5282) for the Petitioner(s) No. 1
MR KIRTIDEV R DAVE(3267) for the Respondent(s) No. 1
MR RAHUL K DAVE(3978) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/07/2025
ORAL ORDER
1. Heard learned Advocate Mr. Kunal S. Shah for the
petitioner and learned Advocate Mr. Kirtidev R. Dave for the
respondent No.1 appearing on caveat.
2. The present application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"9. YOUR LORDSHIPS may be pleased to issue an appropriate writ,
order, direction, or writ in nature of certiorari,
a. To admit and allow this petition;
b. To set aside the order dated 2-7-2025 passed below Exhibit-562 in
Special Civil Suit No.933/2010 by the Additional Senior Civil
Judge, Dholka, which is at Annexure-A, and be pleased to grant
the relief prayed for in the application Exhibit-562, which is at
Annexure-A.
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C/SCA/9915/2025 ORDER DATED: 24/07/2025
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c. Pending admission, hearing and final disposal of this petition, be
pleased to stay the implementation, operation, and effect of the
order dated 2-7-2025 passed below Exhibit-562 in Special Civil
Suit No. 933/2010 by the Additional Senior Civil Judge, Dholka,
which is at Annexure-A and stay the further proceeding of Special
Civil Suit No. 933/2010 pending in the Court of Additional Senior
Civil Judge, Dholka;
d. Pending admission, hearing and final disposal of this petition, be
pleased to grant ad interim relief in terms of paragraph (c) above;
e. Pass any such other and/or further orders that may be thought just
and proper, in the facts and circumstances of the present case."
3. At the outset, learned Advocate Mr. Shah would submit that
despite the law laid down by the Division Bench of this
Court in the case of Bharat Heavy Electronics Limited V/s.
INEOS Styrolution Ltd reported in 2021 AIR Gujarat 12
followed by learned Single Judge of this Court in the case of
Bhavesh Nareshchandra Amin V/s. Dilipbhai Bhaktiprasad
Doshi reported in 2023 (3) GLR 2404 , an impugned
application filed for issuance of witness-summons by the
petitioner, who happens to be defendant No.3 in the suit
came to be rejected by the Trial Court.
4. Per contra, learned Advocate Mr. Dave appearing for the
original plaintiff would submit that a plain reading of
impugned application is nothing but a declaration given by
defendant No.3, who intends to examine the persons/
witnesses shown in the impugned application and has not
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made any request for issuance of any witness-summons to
those persons.
5. Learned Advocate Mr. Dave would further submit that as
such impugned application cannot be treated as a formal
application for issuance of witness-summons, but it is a
declaration and through pursis, it was filed before the Trial
Court.
6. Learned Advocate Mr. Dave would further submit that as
per Order 16, Rule 1 read with Rule 3 of Code of Civil
Procedure (hereinafter referred to as "CPC"), defendant
No.3 was required to assign reasons for the examination of
witnesses, which is missing in the said declaration-cum-
pursis.
7. After hearing the parties, prima facie, it appears that
impugned application filed below Exh.562 in Special Civil
Suit No.933 of 2010 pending before the Principal Senior
Civil Judge, Dholka is not an application for praying for
issuance of witness-summons, but only a declaration that
defendant No.3 intends to examine those persons stated in
such declaration.
8. It is true that as per the judgments cited by the learned
Advocate Mr. Shah appearing for the petitioner i.e. Bharat
Heavy Electronics Limited (supra) and Bhavesh
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C/SCA/9915/2025 ORDER DATED: 24/07/2025
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Nareshchandra Amin (supra), if any application filed under
Order 16, Rule 1 of CPC by the party to the suit requires to
be allowed, but at the same time, the party needs to follow
the procedure as set out in Order 16, Rule 1 read with Rule
3 of CPC, which appears to have not been followed in the
present case.
9. At this stage, learned Advocates appearing for the
respective parties are ad idem that let petitioner/defendant
No.3 file an appropriate application before the Trial Court
seeking appropriate relief regarding issuance of witness
summons to the witnesses which defendant No.3 intends to
examine and such application may be decided by the Trial
Court in accordance with law.
10. Having heard the learned Advocates appearing for the
respective parties and after analysing the aforesaid facts
and as such, there is a consensus ad idem to the fact that
petitioner/defendant No.3 is required to file an appropriate
application, seeking prayer for issuance of witness
summons, it is hereby ordered that the petitioner/defendant
No.3 shall file an appropriate application within seven days
from the date of receipt of the copy this order with all
particulars as required under law by serving an advance
copy to the respondent No.1/plaintiff.
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11. It is open for the respondent No.1/plaintiff to file any
objection, if any. After hearing the parties, the Trial Court
shall decide such application in accordance with law without
being influenced by any of its observations and anything
observed hereinabove, albeit to decide it as per law.
12. With the aforesaid observations and directions, nothing
more requires to be done at this stage in the present case.
Accordingly, the present writ application is disposed of. No
order as to costs. Direct service is permitted.
(MAULIK J.SHELAT,J)
Nilesh
