Gujarat High Court
Urmilaben Bhogilal Rajput D/O ... vs Meenaben Jayntibhai Harishbhai on 3 November, 2025
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Reserved On : 15/10/2025
Pronounced On : 03/11/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11645 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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URMILABEN BHOGILAL RAJPUT D/O HARISHBHAI NAROTTAMBHAI &
ANR.
Versus
MEENABEN JAYNTIBHAI HARISHBHAI & ORS.
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Appearance:
S M KIKANI(7596) for the Petitioner(s) No. 1,2
MR MJ MEHTA(5797) for the Respondent(s) No. 22,23,24,25,26
MR NIRAD D BUCH(4000) for the Respondent(s) No. 22,23,24,25,26
MR SAURABH J MEHTA(2170) for the Respondent(s) No. 22,23,24,25,26
MRS. BHAVINI N. BUCH(5403) for the Respondent(s) No. 22,23,24,25,26
NOTICE SERVED for the Respondent(s) No. 16
RULE SERVED for the Respondent(s) No.
1,10.1,10.2,10.3,11.1,11.2,11.3,12,13,14,15,17,18,19,2,20,21,3,4,5.1.1,5.1.2,
5.1.3,6,7,8,9.2,9.3,9.4,9.5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
1. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
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"(A) YOUR LORDSHIPS may be pleased to admits and allow this
Special Civil Application in the interest of justice;
(B) YOUR LORDSHIPS be pleased to issue an appropriate writ, order
or direction, quashing and setting aside the order dated 03.08.2019
passed below Exh.1 by the Ld. 9th Additional Senior Civil Judge,
Surat pursuant to the purses filed by the plaintiffs at Exh.81, in the
interest of justice and equity;
(C) YOUR LORDSHIPS may be pleased to restore the suit and
thereby allow the Petitioners to file an appropriate application to get
them transpose as plaintiff in place of present respondent no.1 to 4
herein in Special Civil Suit No.158 of 2016, in the interest of justice
and equity.
(D) YOUR LORDSHIPS be pleased to restrain the Ld. Trial court from
drawing decree pursuant to its impugned order dated 03.08.2019 as
being without jurisdiction. Further, be pleased to grant the interim
relief as prayed for in the Special Civil Suit No.158 of 2016, pending
the admission, hearing and final disposal of this petition;
(E) YOUR LORDSHIPS be pleased to grant such other and further
reliefs as deemed fit in the interest of Justice."
2. Though served except respondent Nos. 22 to 26, no other
respondents appeared. As far as possible, the parties will be
referred to as per their original positions before the Trial Court.
3. THE SHORT FACTS OF THE CASE APPEAR TO BE
THAT:
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3.1. The petitioners herein are original defendant Nos. 20 and 21,
whereas, respondent Nos. 1 to 4 are the original plaintiffs and
respondent Nos. 5 to 26 are original defendant Nos. 1 to 19 of
Special Civil Suit No. 158 of 2016 filed before the Principal
Senior Civil Judge, Surat. The suit filed seeking declaration,
injunction, cancellation of sale deed and also sought for
partition of suit properties.
3.2. As per the case of the plaintiffs, the suit properties so
mentioned in the plaint are ancestral properties and they are
class-I legal heirs of late Jayantibhai Harishbhai who died on
17th January, 2015, whereas predecessor of late Jayantibhai i.e.
Harishbhai Narottambhai died on 6th December, 1993. The
defendant Nos. 20 and 21 happen to be daughters of late
Harishbhai there becomes his class-I legal heirs, but having not
done anything in regards to challenge sale deeds, joined as
defendants.
3.3. It is further stated that the suit properties came to be sold by
their predecessor on 18th August 1989, in favour of defendant
Nos. 1 to 14, who in turn appear to have sold it in favour of
defendant Nos. 15 to 19 on 28th September 2011.
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3.4. It is the case of the plaintiffs that the suit properties being
ancestral ones, their predecessor had no exclusive right to sell it
to defendant Nos. 1 to 19, respectively. Hence, the suit came to
be filed with a prayer to declare that the sale deeds in question
so referred in para-8 of the plaint be declared as null and void,
and the suit properties be partitioned, accordingly, the plaintiffs
may be given their share in the suit properties. The prayer of
prohibitory injunction is also made in the plaint.
3.5. The defendants appear to have filed their respective written
statements. The defendant Nos. 20 and 21 (petitioners herein)
have filed their written statement contending inter alia that they
have an equal right in the suit properties and as such, disputed
the sale deeds. They have cleared admitted in their reply that
they are not opposing the prayers so made in the suit.
3.6. It appears that during the pendency of the suit, one application
below Exhibit 80 came to be filed by the plaintiffs on 29th July
2019 with their signatures, thereby, requested the Trial Court to
take up the suit on board, as suit was coming upon board on 9 th
August, 2019. Thereafter, the plaintiffs filed withdrawal
purshish below Exhibit 81 on 29th July 2019 itself, thereby,
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requested the Trial Court to allow the plaintiffs to
unconditionally withdraw the suit as according to them, the
matter is amicably settled between the parties. It further
appears that such purshish came to be filed with the signatures
of all plaintiffs, albeit without serving its copy to the
defendants. The suit was taken up on board by the Trial Court
due to aforesaid request of the plaintiffs, albeit prior to its said
adjourned date, and aforesaid withdrawal purshish recorded by
the Trial Court on 29th August, 2019.
3.7. The suit appears to have been listed before the Lok Adalat held
on 3rd August 2019 and as per the order impugned in the
present writ application, the Trial Court vide its impugned
order dated 3rd August 2019 disposed of the suit on the basis of
the aforesaid unconditional withdrawal purshish filed by the
plaintiffs below Exhibit 81 in the suit.
3.8. Having so observed hereinabove, the copy of application filed
below Exhibit 80 and withdrawal purshish below Exhibit 81
were not served upon the defendants, they were unaware about
the disposal of the suit in Lok Adalat. Having come to know
about such disposal of the suit in lok adalat, the defendant Nos.
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20 and 21 have challenged said impugned order by way of the
present writ application.
4. SUBMISSIONS ON BEHALF OF THE PETITIONERS
(DEFENDANT NOS. 20 AND 21):
4.1. Learned Advocate Mr. S. M. Kikani would vehemently submit
that the order impugned in the matter passed by the Trial Court
in violation of the principles of natural justice and requires to
be quashed and set aside by this Court exercising its power
under Article 227 of the Constitution of India. It is submitted
that the petitioners completely unaware about the filing of the
withdrawal purshish and so also the order passed thereon. It is
further submitted that the impugned order passed in complete
violation of the rule of procedure, equity, fairness and natural
justice, cannot be allowed to stand.
4.2. Learned Advocate Mr. Kikani would respectfully submit that,
as per the rules of procedure, the plaintiffs require to serve the
copy of the application and withdrawal purshish filed below
Exhibits 80 and 81 respectively to the petitioners, thereby, they
could have objected such withdrawal on all permissible grounds
available to them. It is submitted that the suit in question came
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to be filed seeking relief of partition and as well as challenging
the sale deeds executed by the predecessor of the original
plaintiffs and defendant Nos. 20 and 21 - petitioners, whereby,
they have a right to be transposed themselves as plaintiffs.
4.3. Learned Advocate Mr. Kikani would further submit that the
suit came to be withdrawn/disposed of by the Trial Court in
Lok Adalat, but before passing impugned order, as per Section
20 of the Legal Services Authorities Act, 1987 (hereinafter
referred to as "the Act, 1987"), the Trial Court was required to
either issue notice or give reasonable opportunity of hearing to
the petitioners. It is submitted that when the mandatory
requirement as provided under Section 20 was not followed by
the Trial Court while passing the impugned order, impugned
order having being passed in complete violation of the
principles of natural justice and dehors the mandatory
provisions of the Act, 1987, requires to be quashed and set
aside.
4.4. Learned Advocate Mr. Kikani would further respectfully
submit that the prayer made in the suit is in relation to
partition of the suit properties, as the plaintiffs are claiming
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their share in the suit properties being ancestral ones, wherein,
undisputedly, the defendant Nos. 20 and 21 have also equal
share, thereby, the suit could not have been permitted to be
withdrawn by the Trial Court. It is submitted that, as per the
settled legal position of law, in a suit for partition, the positions
of plaintiffs as well as defendants are the same, inasmuch as, all
defendants would be treated as plaintiffs and likewise, the
plaintiffs would be treated as defendants, as the case may be. It
is further submitted that in several authorities, it has been
clearly held by the Hon'ble Apex Court and/or different High
Courts, that in a case of suit for partition, plaintiffs cannot be
permitted to withdraw the suit even unconditionally, which
otherwise permissible in other suits.
4.5. Learned Advocate Mr. Kikani would further respectfully
submit that, as per Order XXIII Rule 1 sub-rule (5) of the Code
of Civil Procedure (hereinafter referred to as "CPC"), without
taking the consent of all plaintiffs, the suit cannot be
withdrawn. It is submitted that in a partition suit, as defendants
are also plaintiffs, consent of defendant Nos. 20 and 21 in the
case on hand required, which undisputedly not obtained by the
original plaintiffs, thereby also, the Trial Court committed
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serious error of law in permitting the plaintiffs to withdraw the
suit.
4.6. Learned Advocate Mr. Kikani would further submit that as the
plaintiffs and defendant Nos. 20 and 21 are having common
interest in the suit properties being ancestral one, also disputing
the sale deeds executed in favour of other defendants, even if
plaintiffs original plaintiffs wants to withdraw the suit,
defendant Nos. 20 and 21 have right to be transposed as
plaintiffs. It is submitted that had there been an opportunity
given to them before passing the order by the Trial Court, as
per Order XXIII Rule 1-A of the CPC, defendant Nos. 20 and
21 could have applied for transposition as plaintiffs. It is
submitted that the plaintiffs could not have been allowed to
submit withdrawal purshish without serving copy to the
defendants and as such, the suit taken up on board out of turn,
inasmuch as, the suit was adjourned on 9th August 2019, were
last listed on 26th July 2019 but due to an application filed
below Exhibit 80 on 29th July 2019 filed by plaintiffs, the Trial
Court taken up the suit out of turn on board on 29th July 2019,
and accordingly recorded the withdrawal purshish filed below
Exhibit 81 by the plaintiffs. So, it is respectfully submitted that
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defendant Nos. 20 and 21 require to be given one opportunity
to submit their request to be transposed as plaintiffs.
4.7. To buttress his arguments, learned Advocate Mr. Kikani has
relied upon following decisions:
(i). Smt. Gowramma V/s. Nanjappa and others reported in 2002
AIR(Karnataka) 76 (para-6, 7, 10 to 16 & 18);
(ii). Bangaru Pattabhirmayya and others V/s. Bangaru
Gopalakrishnayya and others reported in AIR 1986 (AP) 270
(para-1, 2, 5, 8, 10, 11 and 12);
(iii). K. G. Shankara Babu V/s. M. Chandra Shekar in Writ
Petition No.23410 of 2025 dated 11th August 2025, High
Court of Karnataka at Bengaluru;
(iv). R. Dhanasundari alias R. Rajeswari V/s. A. N. Umakanth
and others reported in (2020) 14 SSC page 1;
(v). Bhargavi Constructions and another V/s. Kothakapu
Muthyam Reddy and others reported in (2018) 13 SCC page
4.8. Making the above submissions, learned Advocate Mr. Kikani
would request this Court to allow the present writ application.
5. SUBMISSIONS ON BEHALF OF THE RESPONDENTS
(DEFENDANT NOS. 15 TO 19):
5.1. Per contra, learned Advocate Mr.S.J.Mehta would vehemently
oppose the present writ application, contending inter alia that
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the present writ application is not maintainable, inasmuch as, it
is not filed under Article 226 of the Constitution of India. It is
submitted that the impugned order passed by the Trial Court in
Lok Adalat as per the Act, 1987, unless petition filed under
Article 226 of the Constitution of India challenging such order,
the impugned order should not be interfered by this Court
while exercising its power only under Article 227 of the
Constitution of India in which present writ application filed.
5.2. Learned Advocate Mr. Mehta would respectfully submit that
plaintiffs have an exclusive right to withdraw the suit when
withdrawal is unconditional one. It is submitted that, as per the
settled legal position of law, wherever plaintiffs seek
unconditional withdrawal of the suit, the Court requires to
accept such request and the defendants have no right to object
such unconditional withdrawal.
5.3. Learned Advocate Mr. Mehta would further submit that as
such, suit cannot be treated as a partition suit, inasmuch as, the
suit properties were already sold by the predecessor of the
plaintiffs/defendant Nos. 20 and 21 long back in the year 1989
and thereafter, purchased by defendant Nos. 15 to 19 in the
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year 2011. It is submitted that when the suit properties are no
longer owned by plaintiffs and defendant Nos.20 and 21 then,
they have no right to sought for its partition.
5.4. Learned Advocate Mr. Mehta would further submit that when
there is no preliminary decree came to be passed by the Trial
Court in the suit, no right accrued in favour of defendant Nos.
20 and 21 (petitioners herein) and to claim any share in the suit
properties. It is respectfully submitted that as per settled law,
unless and until there is any right accrued in favour of
defendants who happen to be co-sharers of the suit properties,
the plaintiffs have an indefeasible right to withdraw such suit
even if it is filed seeking partition of the suit properties.
5.5. Learned Advocate Mr. Mehta would further submit that under
law, there is no requirement to give any copy of withdrawal
purshish to the defendants in a case where plaintiffs want to
withdraw the suit unconditionally. It is submitted that once
withdrawal purshish came to be filed, on that very moment, the
suit is deemed to have been withdrawn. It is further submitted
that the defendants only have a right to claim costs of the suit
being joined and no other right to object withdrawal of the suit.
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5.6. Learned Advocate Mr. Mehta would further submit that when
the suit properties were already sold by the predecessor of the
plaintiffs/defendant Nos. 20 and 21, neither plaintiffs nor
defendant Nos. 20 and 21 have any claim against defendant
Nos. 1 to 19 in relation to challenge of the sale deeds in
question. It is submitted that when defendant Nos. 20 and 21
have no right to question the sale deeds in question, they could
not have right to be transposed themselves as plaintiffs. It is
respectfully submitted that none of the decisions so cited by the
learned Advocate for the petitioners would be applicable to the
facts of the case, inasmuch as, the suit in question was neither a
partition suit nor plaintiffs had any right to file it as not
holding any title over suit properties.
5.7. Lastly, learned Advocate Mr. Mehta would respectfully submit
that the impugned order passed by the Trial Court is in
accordance with law and not requires to be interfered by this
Court while exercising its powers under Article 227 of the
Constitution of India.
5.8. To buttress his arguments, learned Advocate Mr. Mehta has
relied upon various decisions:
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(i) R. Ramamurthi Iyer V/s. Raja V. Rajeswara Rao reported in
1972 (2) SCC 721;
(ii). P. T. Thomas V/s. Thomas Job reported in (2005) 6 SCC
478;
(iii). Vishwesh Jitendra Gajjar V/s. Neha Himanshu Gajjar and
others reported in 2025 GUJHC 34982; 2025 Lawsuit(Guj)
2043.
5.9. Making the above submissions, learned Advocate Mr. Mehta
would request this Court to reject the present writ application.
6. No other and further submissions are made.
7. POINT FOR DETERMINATION
(i) Whether the present writ application having filed only
under Article 227 of the Constitution of India, questioning
the impugned order passed by the Trial Court in Lok
Adalat is maintainable?
(ii) Whether the Trial Court could have referred/placed the
suit in Lok Adalat without affording reasonable
opportunity of being heard to the defendants?
(iii) Whether in the facts and circumstances of the case, the suit
could have been disposed of as withdrawn in Lok Adalat
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on the basis of withdrawal purshish filed by the plaintiffs
below Exhibit 81 in the suit?
ANALYSIS
POINT NO.1
8. The impugned order is undisputedly passed by the Trial Court
in Lok Adalat and accordingly, a decree has been drawn in the
suit. As per Section 21 of the Act, 1987, any award made by the
Lok Adalat shall be final and binding on all parties to the
dispute, and no appeal shall lie to any court against such
award.
9. As such, the objection raised by learned Advocate Mr. Mehta
regarding non-maintainability of the present writ application
filed only under Article 227 of the Constitution of India is
already settled down by the Full Bench of the Hon'ble Apex
Court in the case of State of Punjab and Another V/s. Jalour
Singh and others reported in (2008) 2 SCC 660 , which is
subsequently followed in the case of Bhargavi Constructions
(supra), wherein observed and held thus:
"22. The question arose before this Court
(three-Judge Bench) in State of Punjab [State
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of Punjab v. Jalour Singh, (2008) 2 SCC 660 :
(2008) 1 SCC (Civ) 669 : (2008) 1 SCC (Cri) 524
: (2008) 1 SCC (L&S) 535] as to what is the
remedy available to the person aggrieved of the
award passed by the Lok Adalat under Section 20
of the Act. In that case, the award was passed
by the Lok Adalat which had resulted in
disposal of the appeal pending before the High
Court relating to a claim case arising out of
the Motor Vehicles Act. One party to the appeal
felt aggrieved of the award and, therefore,
questioned its legality and correctness by
filing a writ petition under Articles 226/227 of
the Constitution of India. The High Court
dismissed the writ petition holding it to be
not maintainable. The aggrieved party,
therefore, filed an appeal by way of special
leave before this Court. This Court, after
examining the scheme of the Act allowed the
appeal and set aside the order of the High
Court. This Court held that the High Court was
not right in dismissing the writ petition as
not maintainable. It was held that the only
remedy available with the aggrieved person was
to challenge the award of the Lok Adalat by
filing a writ petition under Article 226 or/and
Article 227 of the Constitution of India in the
High Court and that too on very limited
grounds. The case was accordingly remanded to
the High Court for deciding the writ petition
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filed by the aggrieved person on its merits in
accordance with law."
(emphasis supplied)
10. So, in view of the aforesaid clear pronouncement of law by the
Hon'ble Apex Court, there is no cavil that a writ application
filed only under Article 227 of the Constitution of India is also
maintainable when the petitioners have questioned/challenged
the order passed in Lok Adalat. It is not so held that such writ
petition requires to be filed bother under Article 226 & 227 of
the Constitution of India, rather it clearly observed that writ
petition can be filed under Article 226 or/and 227 of the
Constitution of India.
11. Thus, in view of the aforesaid, according to my view, the
present writ application though filed only under Article 227 of
the Constitution of India, whereby, the original defendant Nos.
20 and 21 have questioned/challenged the impugned order
passed by the Trial Court in Lok Adalat, is maintainable. Point
No. 1 is answered accordingly.
12. The facts which are observed hereinabove are not in dispute. It
is clear from the documents so made available with the present
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writ application that the suit in question though adjourned to
9th August 2019, on a request being made by the original
plaintiffs on 29th July 2019 by way of filing an application
below Exhibit 80, the Trial Court taken up the suit on board on
said date. On the very day, an unconditional withdrawal
purshish came to be filed below Exhibit 81 by the plaintiffs
which was recorded by the Trial Court.
13. It is undisputed fact that neither the application filed below
Exhibit 80 nor the unconditional withdrawal purshish filed
below Exhibit 81 served upon the defendants. So, they were
totally kept in the dark. Further, there is nothing on record to
show that before placing the matter in Lok Adalat, any prior
intimation or opportunity given to the defendants by the Trial
Court. Thus, no response of defendants received by Trial Court
before placing the suit before Lok Adalat.
14. At this stage, it would be apt to refer the relevant provisions of
the Act, 1987, which read as under -
" CHAPTER VI
LOK ADALATS
Section-19. Organisation of Lok Adalats.-...........
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(5) A Lok Adalat shall have jurisdiction to determine
and to arrive at a compromise or settlement
between the parties to a dispute in respect of -
(i) any case pending before; or
(ii) any matter which is falling within the
jurisdiction of, and is not brought before, any
Court for which the Lok Adalat is organised:
Provided that the Lok Adalat shall have no
jurisdiction in respect of any case or matter
relating to an offence not compundable under any
law."
"Section-20. Cognizance of cases by Lok Adalats.-
(1) Where in any case referred to in clause (i) of sub-
section (5) of section 19,-
(i)(a) the parties thereof agree; or
(b) one of the parties thereof makes an
application to the Court, for referring the
case to the Lok Adalat for settlement and if
such court is prima facie satisfied that there
are chances of such settlement; or
(ii) the court is satisfied that the matter is
an appropriate one to be taken cognizance
of by the Lok Adalat, the Court shall refer
the case to the Lok Adalat:
Provided that no case shall be referred to
the Lok Adalat under sub-clause (b) of
clause (i) or clause (ii) by such court except
after giving a reasonable opportunity of
being heard to the parties.
(2) Notwithstanding anything contained in any other
law for the time being in force, the Authority or
Committee organising the Lok Adalat under sub-
section (1) of section 19 may, on receipt of an
application from any one of the parties to any
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matter referred to in clause (ii) of sub-section (5)
of section 19 that such matter needs to be
determined by a Lok Adalat, refer such matter to
the Lok Adalat, for determination:
Provided that no matter shall be referred to the
Lok Adalat except after giving a reasonable
opportunity of being heard to the other party.
(3) Where any case is referred to a Lok Adalat under
sub-section (1) or where a reference has been
made to it under sub-section (2), the Lok Adalat
shall proceed to dispose of the case or matter and
arrive at a compromise or settlement between the
parties.
(4) Every Lok Adalat shall, while determining any
reference before it under this Act, act with utmost
expedition to arrive at a compromise or
settlement between the parties and shall be
guided by the principles of justice, equity, fair play
and other legal principles.
(5) Where no award is made by the Lok Adalat on the
ground that no compromise or settlement could
be arrived at between the parties, the record of
the case shall be returned by it to the court, from
which the reference has been received under sub-
section (1) for disposal in accordance with law.
(6) Where no award is made by the Lok Adalat on the
ground that no compromise or settlement could
be arrived at between the parties, in a matter
referred to in sub-section (2), that Lok Adalat shall
advice the parties to seek remedy in a court.
(7) Where the record of the case if returned under
sub-section (5) to the court, such court shall
proceed to deal with such case from the stage
which was reached before such reference under
sub-section (1).]"
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15. The bare reading of the aforesaid provisions of the Act, 1987,
would indicate that before referring the matter in Lok Adalat,
either at the application of one of the parties or by the court
having so satisfied that the matter can be placed before Lok
Adalat, in that eventuality, it would obligatory on the part of
the court to give reasonable opportunity of being heard to the
other parties.
16. It is further clear that in a case of non-agreement/settlement
between the parties, the record of the case shall be returned by
the Lok Adalat to the Court concerned and the same shall have
to be disposed of in accordance with law. The principles of
justice, equity, fair play and other legal principles requires to be
observed by the Lok Adalat when received the reference.
17. It is remained undisputed that the suit in question was not
referred in Lok Adalat at the instance of all the parties to the
suit. So, the case on hand would not fall under Section-20 (1) (i)
(a) of the Act, 1987, but would surely fall either under Section
20 (1) (i) (b) or (ii) of the Act, 1987.
18. Thus, the suit in question could not have been referred in Lok
Adalat by the Court without giving a reasonable opportunity to
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the petitioners - defendant Nos. 20 and 21. Point No. 2 is
answered accordingly.
POINT NO.3
19. Having so observed above, that before referring the suit in
question in Lok Adalat, no such reasonable opportunity being
offered to the petitioners/defendant Nos. 20 and 21 by the
Court concerned and as such, the impugned order came to be
passed, albeit in Lok Adalat, without observing the principles
of natural justice, equity, and fair play, thus, it requires to be
quashed and set aside solely on this ground alone.
20. It can be gainsaid that when plaintiffs unconditionally
withdraw the suit, in that event, defendants have right to
sought for cost of litigation. But in a case where defendants not
made aware about such unconditional withdrawal, their right
to even claim cost would get abrogate. To that extent also,
defendants requires to be heard.
21. It is true that, whenever any award is passed by a Court in Lok
Adalat, its challenge would be on limited grounds. But at the
same time, when this Court observed that such award passed in
Lok Adalat dehors the mandatory provisions of the Act, 1987
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and having so passed in violation of the principles of natural
justice, such award requires to be interfered with by this Court
even though having limited jurisdiction to interfere with it,
under Article 226 and/or 227 of the Constitution of India.
22. It is trite that any order, be it administrative or judicial, passed
in violation of the principles of natural justice, whereby
seriously affected rights of the parties, requires to be quashed
and set aside as it is passed against the basic principles of
justice, equity and fair play which otherwise embodied in any
judicial process.
23. It would be apt to refer and rely upon pertinent observation so
made by Hon'ble Apex Court in a case of Ranjit Singh & Ors.
V/s State of Uttarakhan reported in 2024 INSC 724, decision
dated 12/09/2024 passed in Civil Appeal No. 2394/2023 & others ,
wherein observed and held thus:
"[5] On 1st July, 2002, the defendants applied
for setting aside the order dated 3rd May, 2002
by which their defence was struck out. The
application proceeds on the allegation that on
3rd May, 2002, the Court proceeded to strike
out the defendants' defence without giving them
an opportunity of being heard and the hearing
was conducted ex parte. Very interestingly, a
reply was filed to the said application by the
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plaintiffs in which a stand has been taken that
as the suit was directed to proceed ex parte,
there was no occasion to give an intimation to
the defendants or their counsel that the
application will be taken up on 3rd May, 2002.
Therefore, it is an accepted position that the
application for striking out the defence of the
defendants was taken up on the cause list on
3rd May 2002 without issuing notice to the
defendants, though on 22nd April, 2002, the
next date was already fixed as 30th May 2002.
The application for setting aside the order
dated 3rd May, 2002 was rejected. At this
stage, we must clarify the legal position. Even
if a defendant does not file a written statement
and the suit is ordered to proceed ex parte
against him, the limited defence available to
the defendant is not foreclosed. A defendant
can always cross-examine the witnesses examined
by the plaintiff to prove the falsity of the
plaintiff's case. A defendant can always urge,
based on the plaint and the evidence of the
plaintiff, that the suit was barred by a statute
such as the law of limitation.
Therefore, notwithstanding an order
passed earlier to proceed ex parte, while
deciding an application for striking out the
defence, it was the duty of the Court to give
an opportunity of being heard to the
defendants. However, that was not done. As the
suit was fixed on 30th May, 2002, the defendants
were entitled to a notice that the suit would
be taken up on an earlier date for hearing the
application for striking out the defence. When
the defendants had appeared in the suit, the
act of preponing the date without notice to
them or their advocate was completely illegal
and contrary to elementary principles of
natural justice. Therefore, it follows that the
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order striking out the defendants' defence is
completely illegal, and the said order deserves
to be set aside."
(emphasis supplied)
24. Thus, in view of the aforesaid facts and position of law
discussed above, impugned order not only suffers from
procedure illegality but it passed in complete violation of
principles of natural justice, thereby cannot allow to stand in
eye of law.
25. So far as the other submissions being made by learned
Advocate Mr. Kikani for the petitioners that the petitioners
could have objected such withdrawal of the suit and sought
transposition as plaintiffs as well as suit requires to be
considered/treated as partition suit are concerned, at this stage,
the same are not requires to be dealt with, inasmuch as, this
Court would incline to quash the impugned order solely on the
ground that it passed in violation of principles of natural justice
and so also the rule of procedure prescribed under Section 20 of
the Act, 1987.
26. Likewise, the counter submissions being made by learned
Advocate Mr. Mehta that once unconditional withdrawal
purshish filed by the plaintiffs, the suit deemed to have been
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withdrawn on that very day and as such, the suit could not have
been treated as a partition suit are concerned, the same also left
open to be decided by the Trial Court while considering the
objections of defendant Nos. 20 and 21 against the withdrawal
of the suit.
27. Having so observed and held as above, that the impugned order
is passed contrary to the provisions of the Act, 1987 and also
passed in violation of the principles of natural justice, the order
impugned requires to be quashed and set aside. According to
me, any expression/opinion of this Court on other legal
submissions than dealt with above would damage the case of
respective parties.
28. According to my view, as discussed herein above, the suit in
question could not have been disposed of as withdrawn in Lok
Adalat and to that extent, the impugned order is not
sustainable in law. It would be in the interest of justice that suit
be restored back on its original file and requires to be
proceeded further from stage at which plaintiffs filed
unconditional withdrawal purshish below Exhibit 81. Point No.
3 is answered accordingly.
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CONCLUSION
29. The upshot of the aforesaid observations, discussions and
reasons, would lead to following conclusion;-
(i). The present writ application filed only under Article 227
of the Constitution of India, challenging the impugned
order dated 3rd August 2019 passed by the learned 9th
Additional Senior Civil Judge, Surat, below Exhibit 1 in
Special Civil Suit No. 158 of 2016 in Lok Adalat, is
maintainable.
(ii). The Trial Court has committed serious error of law while
referring Special Civil Suit No. 158 of 2016 in question to
Lok Adalat without observing/following the mandatory
provisions of Section-20 of the Act, 1987.
(iii). The impugned order dated 3rd August 2019 passed by
9th Additional Senior Civil Judge, Surat and the decree if
any drawn thereupon is hereby quashed and set aside, as
it is passed in violation of the principles of natural justice
and as well as dehors mandatory provisions of Section 20
of the Act, 1987.
(iv). Consequently, Special Civil Suit No. 158 of 2016 filed
before the learned Principal Senior Civil Judge, Surat, is
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restored back on its original file and Trial Court shall
proceed to deal with the suit from the stage which was
reached before it referred to Lok Adalat, i.e. filing of
unconditional withdrawal purshish @ Exhibit 81.
(v). It is open for defendant Nos. 20 and 21 to file their
objections against the unconditional withdrawal purshish
filed below Exhibit 81 by the original plaintiffs and they
are also permitted to file an appropriate application
under Order XXIII Rule 1-A of the Code of Civil
Procedure seeking their transposition as plaintiffs.
(vi). Likewise, the plaintiffs and defendant Nos. 15 to 19 are
also permitted to file their response & reply against such
objections and application respectively, which may be
filed by the petitioners/defendant Nos. 20 and 21, as
observed hereinabove.
(vii). All contentions as regards right of plaintiffs to
unconditionally withdraw the suit, nature and status of
the suit i.e. partition suit or not?, right of defendant Nos.
20 and 21 to be transposed as plaintiffs and/or to claim
cost in a case of unconditional withdrawal of the suit
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accepted by Trial Court etc., are kept open, to be decided
by the Trial Court, albeit in accordance with law.
30. In view of the foregoing conclusions, the present writ
application is hereby allowed to the aforesaid extent. Rule is
made absolute accordingly. No order as to costs.
(MAULIK J.SHELAT,J)
NILESH
