Gujarat High Court
Rameshbhai Umakant Sharma vs Ashaben Kamleshkumar Modi Through Poa ... on 16 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1728 of 2025
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RAMESHBHAI UMAKANT SHARMA
Versus
ASHABEN KAMLESHKUMAR MODI THROUGH POA KAMLESHKUMAR
RAMANLAL MODI & ORS.
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Appearance:
MR VIJAL P DESAI(5505) for the Petitioner(s) No. 1
MS ISHITA V DESAI(5975) for the Petitioner(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 3,5
MR DHRUV H PANCHAL(12742) for the Respondent(s) No. 1
MS SNEHA A JOSHI(2156) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,4,6
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 16/06/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Ms.Sneha A.
Joshi waives service of Rule on behalf of respondent no.1.
2. Heard learned advocate Mr.Vijal P Desai appearing for
the petitioner and learned advocate Ms.Sneah A. Joshi with
learned advocate Mr.Dhruv H. Panchal appearing for the
respondent No.1. Though served, none appears for rest of the
respondents.
3. The present writ application is filed seeking following
reliefs:-
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"(a) Admit this Special Civil Application.
(b) Allow this Special Civil Application by issuing writ of
certiorari or writ in nature of certiorari or any other
appropriate writ, order or direction and be pleased to
quash and set aside the condition, imposed in the
impugned order, to deposit the security amount of Rs.
75,00,000/- before the executing court passed by the 5th
additional district judge, Panchmahals at Godhra dated
28/11/2024 passed below Exh.-5 application in Regular
Civil Appeal No.119/2024, annexed at Annexure-A, in the
interest of justice.
(c) Pending hearing and final disposal of this Special Civil
Application, the implementation, operation and execution
of Condition to deposit a security amount of Rs.
75,00,000/-before the executing court impose in the order
at "Annexure-A" herein may kindly be ordered to be
stayed.
(d) Any other and/or further orders that may be deemed
necessary in the interest of justice may kindly be passed."
4. Learned advocate Mr.Vijal P. Desai appearing for the
petitioner would submit that while granting stay, thereby,
judgment and decree stayed by Appellate court, an enormous
condition has been imposed, thereby, the Appellate Court
directed the petitioner to deposit Rs.75,00,000/- within a
period of 15 days from the date of order impugned in the
present impugned application.
4.1. Learned advocate Mr.Desai would submit that while
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imposing such condition, no reason has been assigned as to
how the Appellate Court had arrived at a finding that
Rs.75,00,000/- is the market value of suit property.
4.2. Learned advocate Mr.Desai would submit that as such,
there is nothing on record to substantiate that as on today, the
market value of suit property is Rs.75,00,000/-, thereby,
condition imposed by Appellate Court is erroneous, perverse
and arbitrary and requires to be quashed and set aside.
5. Per contra, learned advocate Ms.Joshi appearing with
learned advocate Mr.Dhuruv H. Panchal appearing for the
respondent no.1 has placed reliance upon an affidavit in reply
filed by the respondent no.1, thereby, would contend that the
valuation report dated 3rd March, 2025, does suggest that as on
today, the market value of suit property is around
Rs.84,24,000/-.
5.1. Nonetheless, learned advocate Ms.Joshi would fairly
submit that such valuation report was not available on record
of Appellate Court and as such, there is no documentary
evidence available with the Appellate Court when it has passed
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the impugned order.
6. Making the above submission, learned advocates
appearing for the respective parties arrived at a consensus ad
idem that let the matter be remanded back to the Appellate
Court so as to decide the issue of imposition of condition of
deposit of amount by the petitioner.
7. After going through the order impugned in the present
writ application and after appreciating the submissions made
by learned advocates appearing for the respective parties that
the Appellate Court without any documents and material
available on the record of appeal, fixed market value of suit
property as Rs.75,00,000/-, thereby, directed the petitioner -
appellant to deposit a sum of Rs.75,00,000/- as stay was
granted in favour of petitioner with condition.
8. When such imposition of condition is found to be
erroneous, perverse and considering the request made by
learned advocate appearing for the respective parties, I am of
the view that matter requires to be remanded back to the
Appellate Court in relation to fixation of condition so imposed
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by it in operative part of Para 1 (i) is concerned.
9. Thus, in view of the aforesaid, the order impugned is
hereby quashed and set aside. The matter is remanded back to
the Appellate Court for hearing and redeciding injunction
application so filed by petitioner herein below Exh.5 in Regular
Civil Appeal No.119 of 2024 afresh.
10. The Appellate Court is hereby requested to decide the
aforesaid injunction application without being influenced by
any of its observations so made in order impugned in present
application and / or made before this Court while passing this
order.
11. It is open for the respective parties to submit necessary
documentary evidence in relation to market value of suit
property.
12. After giving reasonable opportunity of hearing of all
parties concerned, the Appellate Court is requested to decide
afresh the injunction application filed below Exh.5 within
period of 3 months from the date of receipt of the order and
so also, if parties to the appeal desirous to let the appellate
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Court finally heard and decided the appeal filed by petitioner,
it is open for them to request the Appellate Court for
expeditious hearing of the appeal. The Appellate Court may
decide such request in accordance with law.
13. With the aforesaid observation, the present application is
partly allowed accordingly. Rule is made absolute to the
aforesaid extent. No order as to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
