Gujarat High Court
Decd Bipinbhai Vinodbhai Bhagat ... vs Noyelbhai Rajnikant Bhagat on 18 November, 2025
NEUTRAL CITATION
C/SA/524/2023 ORDER DATED: 18/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 524 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/SECOND APPEAL NO. 524 of 2023
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DECD BIPINBHAI VINODBHAI BHAGAT THROUGH HEIRS & ORS.
Versus
NOYELBHAI RAJNIKANT BHAGAT & ORS.
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Appearance:
MR KASHYAP R JOSHI(2133) for the Appellants
MR NV GANDHI(1693) for the Respondent No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 18/11/2025
ORAL ORDER
Upon joint request of learned advocates for the
respective parties and considering the aspect that in Regular
Civil Suit No.56 of 2009, the defendant has filed counterclaim
under O 8 R 6(a) of the CPC having effect of the suit, whereby
the learned trial Court dismissed the suit of the plaintiff and
decreed the counterclaim of the defendant. However, only
first appeal was preferred by the unsuccessful plaintiff
challenging the judgment and decree declined to grant
interim relief in favour of the plaintiff and no separate appeal
is filed by the plaintiff challenging the judgment and decree
passed in favour of the defendant respondent in a
counterclaim.
It is trite law that when suit and the counterclaim are
NEUTRAL CITATION
C/SA/524/2023 ORDER DATED: 18/11/2025
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decided by common judgment, to different decree arose in two
different suits and both are required to be challenged by way
of separate appeal, otherwise principle of res judicata will
apply.
It has been decided by the Hon'ble Apex Court in case of
Premier Tyres Ltd. Vs. The Kerala State Road Transport
Corporation, AIR 1993 SC 201 followed by decision of Division
Bench of this Court in case of Darayas Bamanshah Medhora
Vs. Nariman Bamansha Medhora, 2002(1) GLR 474, this
proposition was further relied upon by this Court in Second
Appeal No.231 of 2024.
In view of aforesaid aspects and considering the joint
consensus canvassed by both the learned advocates for the
parties, present appeal is required to be allowed.
In the result, present second appeal is allowed.
Impugned order dated 28.2.2019 passed by the learned 6 th
Addl. District Judge, Ankleshwar in Regular Civil Appeal No.2
of 2015 setting aside the judgment and decree passed by the
learned Principal Civil Judge, Jhagadia in Regular Civil Suit
No.56 of 2009 is hereby quashed and set aside. The first
appeal is restored to its original file.
The unsuccessful plaintiff is also permitted to file appeal
against counterclaim .
Since the unsuccessful plaintiff was proceeding his lis
unaware of law, the time passed in filing first appeal against
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C/SA/524/2023 ORDER DATED: 18/11/2025
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the judgment and decree passed in counterclaim, benefit of
section 14 of the Limitation Act shall be given by the learned
trial Court to the plaintiff.
Both the parties shall maintain status quo in regards to
the title and possession of the disputed property till final
disposal of both the appeals.
The learned appellate Court shall decide both the
appeals together in accordance with law.
Consequently, CA does not survive and stands disposed
of accordingly.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
