Gujarat High Court
Karsandas Bhagwanji Makadia vs Bhagwanji Devraj Makadia Since ... on 1 July, 2025
NEUTRAL CITATION
C/SCA/8578/2025 ORDER DATED: 01/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8578 of 2025
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KARSANDAS BHAGWANJI MAKADIA
Versus
BHAGWANJI DEVRAJ MAKADIA SINCE DECEASED THROUGH & ORS.
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Appearance:
MR. S. M. GOHIL(3785) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 01/07/2025
ORAL ORDER
1. Learned Advocate Mr.S.M. Gohil for the petitioner.
2. The present application is filed under Article 227 of the
Constitution of India seeking the following relief:_
"A. This Hon'ble Court be pleased to admit and allow the present
Petition;
B. This Hon'ble Court be Pleased to Issue an appropriate Writ,
Order and/or Direction quashing an setting aside the Order dated
08/05/2025 passed in Special Civil Suit No. 24 of 2017 [Old
number S.C.S 114 of 2012] by the Hon'ble Principal Senior Civil
Judge, Vanthali after calling for and examining the records and
proceedings of the said case,; (Annex:A.).
C. That pending hearing and Final disposal of the present Petition,
this Hon'ble Court be pleased to Stay the further proceedings in
Special Civil Suit No. 24 of 2017 [Old number S.C.S 114 of 2012]
by the Hon'ble Principal Senior Civil Judge, Vanthali; (Annex.).
D. That Ex Parte Ad-Interim Reliefs in terms of Para C above may
kindly be granted and confirmed after notice to the Respondents;
E. Be pleased to pass any such further other reliefs that in the facts
and circumstances, may be deemed fit in the interests of justice.
3. At the outset, learned advocate Mr. Gohil stated that at
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C/SCA/8578/2025 ORDER DATED: 01/07/2025
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the fag end of the suit proceedings, the Trial Court vide its
order dated 8th May 2025, passed the impugned order
whereby an additional issue is framed, which has caused great
inconvenience and delayed the disposal of the suit, which
ultimately reached at the stage of judgment as the arguments
of both sides were already over.
3.1. Learned Advocate Mr. Gohil would submit that by
framing such an issue, which is, of course, a pure question of
law, the Trial Court would surely allow the parties to lead
evidence, which is not appropriate mode to decide such an
issue.
3.2. So, learned advocate Mr. Gohil would submit that this
Court may interfere with the matter and pass an appropriate
order, thereby, the adjudication of the suit may not be delayed
further.
4. Prima facie, the apprehension expressed by learned
Advocate Mr. Gohil is not correct, as the Trial Court is
empowered to frame an issue before passing a final
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C/SCA/8578/2025 ORDER DATED: 01/07/2025
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judgment/decree. The Trial Court, having found from the
pleadings and evidence that a necessary issue which, according
to the Trial Court, was left out, was framed. At the same
time, a plain reading of the issue framed by the Trial Court as
regards the right of execution of Will by the father of
defendant No. 2 is concerned, appears to be a pure question of
law. Nothing further is mentioned in the order whereby it can
be assumed that the Trial Court has permitted defendant No. 2
and/or called upon the plaintiff to lead evidence on such an
additional issue.
5. Be that as it may, it is open for the petitioner herein to
submit an appropriate application before the Trial Court to
decide such an additional issue, being purely question of law,
on the strength of the pleadings and evidence available on
record. If such an application is filed, after giving an
opportunity of being heard to all the parties concerned, the
Trial Court is requested to decide this application in
accordance with law.
6. At this stage, this Court would not like to interfere with
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the order impugned in the present application, except as
observed hereinabove.
7. In view of the aforesaid, Advocate Mr. Gohil, under
instructions from his client, does not press the present
application, seeking the aforesaid liberty as observed
hereinabove.
8. Request of learned Advocate Mr. Gohil is accepted.
9. The present application is disposed of reserving liberty in
favour of the petitioner to file an appropriate application as
observed hereinabove.
10. Direct service is permitted.
(MAULIK J.SHELAT,J)
MOHD MONIS
