Gujarat High Court
Laxmiben Wd/O Manibhai Somabhai Patel vs Sanjay Chunilal Sheth on 14 July, 2025
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C/SCA/9421/2025 JUDGMENT DATED: 14/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9421 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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LAXMIBEN WD/O MANIBHAI SOMABHAI PATEL & ORS.
Versus
SANJAY CHUNILAL SHETH & ANR.
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Appearance:
MR JINESH H KAPADIA(5601) for the Petitioner(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 14/07/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Jinesh H. Kapadia for the
petitioners.
2. The present application is filed under Article 227 of the
Constitution of India, seeking the following relief:
"A. Issue an appropriate writ, order, or direction, including a
writ in the nature of certiorari, quashing and setting aside
the order dated 1/5/2025 passed by the Learned Additional
Senior Civil Judge, Chikhali below application at exhibit 41
in RCS No.44/2021 (Annexure-G);
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B. Stay the implementation, operation, and execution of the
impugned order dated 1/5/2025 passed by the Learned
Additional Senior Civil Judge, Chikhali below application at
exhibit 41 in RCS No.44/2021 during the pendency of the
present petition (Annexure-G);
C. Grant interim relief in terms of prayer clause (B) above;
D. Grant such other and further reliefs as may be deemed
just, fit, and proper in the interest of justice."
3. The parties will be referred to as per their original positions
before the Trial Court.
4. The short facts:
4.1. The petitioners herein are original plaintiffs whereas the
respondents herein are original defendants. The suit is filed
seeking declaration and injunction and as such, the plaintiffs
have categorically mentioned in para-12 of their plaint that
on 27th June, 2021, the defendants have threatened the
plaintiffs Nos.3 and 4 at the place called Nanak Cloth Stores
situated at Vaniyavad Area, Village : Chikhali which falls
under District - Navsari whereby, defendants told plaintiffs
that if they will not hand over the possession of suit property
to defendants, plaintiffs would have to face the
consequences.
4.2. The defendants have not only objected to the plaint but came
out with the specific plea that there is no such place like
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Nanak Cloth Store in Vaniyavad Area, Village Chikli, District
- Navsari and there is an elusive cause of action created by
plaintiffs to maintain the suit. According to the case of
defendants, Nanak Cloth Store is situated in Bazar Street and
not at Vaniyavad, Village - Chikhali.
4.3. It further appears that the defendants have also filed an
application under Order 7, Rule 11 on such basis that there is
an elusive cause of action stated in the plaint which of course
denied by plaintiffs by filing the reply explaining that there
are several branches of Nanak Cloth Stores in Chikhali and
as such, there is no different places like Vaniyawad / Bazar
Street.
4.4. At that stage, impugned application came to be filed by the
defendants below Exh.41 under Order 10, Rule 2, 3, 4 read
with Section-94(e) read with Section-151 of CPC. The
plaintiffs have responded to such application contending
interalia that it is premature application as it can not be
submitted prior to the first day of hearing i.e. Framing of
issues by the Court, which is yet to be taken place.
4.5. After hearing the parties at length, the Trial Court, vide its
order dated 1st May, 2025, allowed impugned application
filed by the defendants.
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5. Being aggrieved and dissatisfied with the impugned order
passed by the Trial Court, plaintiffs have preferred the
present application.
6. Submission of the petitioner - plaintiffs:
6.1. Learned Advocate Mr. Kapadia would submit that Trial Court
has committed jurisdictional error by allowing impugned
application, wherein observed that to obtain the admission
and to determine the matter in controversy, evidence of
plaintiff needs to be recorded thereby plaintiffs need to be
examined by the Court.
6.2. Learned Advocate Mr. Kapadia would further submit that as
such, at the stage of examining party, in the present case,
Court cannot exercise its power under Order 10, Rule 2 of
CPC to get admission of plaintiff but only to elucidate the
dispute between the parties, such right can be exercised.
6.3. Learned Advocate Mr. Kapadia would submit that as such
plaintiffs would not have any grievance about passing of
impugned order but about certain observations which are
made in the impugned order as regards, forming an opinion
by the Court that whatever replied by the plaintiffs during his
examination by Court would be considered as their admission
which is incorrect and not sustainable in law.
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6.4. Learned Advocate Mr. Kapadia would further submit that
there is no vagueness in the pleading of the plaintiffs and the
cause of action is clearly stated by plaintiffs with all
particulars.
6.5. To buttress his arguments, he would rely upon the decision of
the Hon'ble Supreme Court of India in the case of Kapil
Corepacks Private Limited and others V/s. Harbans Lal
(Since Deceased) Through Lrs. reported in (2010) 8
Supreme Court Cases 452.
6.6. Making the above submissions, learned advocate Mr.
Kapadia for the petitioner prayed that the writ application be
allowed.
7. No other and further submissions are made.
POINTS FOR DETERMINATION
8. Whether in the facts and circumstances of the present case,
is there any error much less any gross error of law and/or
jurisdictional error committed by Trial Court while allowing
the impugned application filed under Order 10, Rule 2, 3, 4
read with Section-94(e) read with Section-151 of CPC ?
ANALYSIS
9. The facts which are recorded hereinabove are not in dispute.
Prima facie, it appears from reading impugned application,
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the principal grievance raised by defendants that there is no
place of Nanak store in Vaniyavad and there is an elusive
cause of action stated by plaintiffs to maintain the suit.
Whereas, according to plaintiffs having so explained such
facts stated in the cause of action in para-12 by filing their
reply to Order 7, Rule 11 application that place called
Vaniyavad is large area and as such there is no different
places like Vaniyavad or Bazar Street in Chikhali.
10. The arguments which are canvassed before this Court are not
germane from the impugned order in as much as before the
Trial Court, the plaintiffs have confined their objection
against impugned application, claimed it to be a premature
one as according to the plaintiffs, such application cannot be
filed and entertained at this stage inas much as the first day
of hearing i.e. framing of issues, yet to be reached. It is true
that the Court has not framed issues. Such objection of
plaintiffs was answered by the Trial Court in its impugned
order by placing reliance upon judgment of the Honourable
Supreme Court of India, in the case of Vikas Agrawal Vs.
Anubha, reported in (2002) 4 SCC 468. As such,
objections raised by plaintiffs have no legs to stand on in the
eye of law in light of direct decision of Honourable Supreme
Court of India in a case of Vikas Agrawal (supra).
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11. The Trial Court has all the rights to call upon the parties
under Order 10, Rule 2 to ascertain the real controversy
germane in the suit and to elucidate the dispute, such power
can be exercised by vigilant court which appears to have
been done so in the present case thereby, no fault can be
found with the Trial Court.
12. At the same time, apprehensions so expressed by petitioners-
plaintiffs that certain observations which are made by Trial
Court while passing impugned order, thereby Court observed
that to get admission from the plaintiffs and to determine the
matter in controversy, anything which may be
answered/replied by the plaintiffs during such examination by
Court, that would cause harm and injustice to the plaintiffs, is
ill founded.
13. Prima facie, reading impugned order as it is, such
apprehension is not appropriate and as such premature
because after examining the plaintiffs as ordered by the Trial
Court under Order 10, Rule 2 of CPC, Trial Court is always
required to take into account the reply coming forth from
plaintiffs and to judge it in light of the law laid down by the
Hon'ble Supreme Court of India in the case of Kapil
Corepacks Private Limited (Supra). The Trial Court has not
expressed anything further but gave prima facie opinion as to
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why a necessity arise to examine the plaintiffs in the present
case while exercising its power under Order 10, Rule 2 of
CPC.
14. According to this Court, at this stage, it would be premature
to say that there is any final opinion expressed by Trial Court
as regards the reply received from the plaintiffs during the
examination by the Trial Court as to be considered as an
admission / evidence. As such, the things which is not
permissible in law and not sustainable in law, cannot be
undertaken by Trial Court at any point of time as the Trial
Court is required to exercise its power within its jurisdiction
and the law settled by the Hon'ble Supreme Court of India.
15. So far as the submissions made by learned Advocate
Mr.Kapadia that there is no vagueness in the pleading of
plaintiffs thereby, the Trial Court should not have exercised
its power under Order 10, Rule 2 of CPC, such arguments
cannot be canvassed at this stage, as it was not pressed into
the service before the Trial Court for which, no fault can be
found with the Trial Court. It is settled that when specific
plea not been taken up before the Trial Court, a new plea at
this stage in the present application cannot be allowed.
16. Thus, at this stage, after taking into account the entire facts
and circumstances of present case, I do not find any gross
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error of law and or any jurisdictional error committed by
Trial Court which requires any interference by this court
while exercising its power under Article 227 of Constitution
of India, which is otherwise very limited and to be sparingly
exercised by this Court. [See Sameer Suresh Gupta TR PA
Holder vs. Rahul Kumar Agarwal, reported in 2013 (9)
SCC 374 (Para 6 and 7) and Garment Craft v. Prakash
Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and
16)]
CONCLUSION
17. In the upshot of the aforesaid observations, discussions and
reasons, I do not find any merit in the present writ
application, which requires to be rejected, which is hereby
rejected. No order as to costs.
(MAULIK J.SHELAT,J)
Nilesh
