Gujarat High Court
Nilesh Maganlal Shah vs Suhas Champaklal Desai on 14 October, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14523 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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NILESH MAGANLAL SHAH
Versus
SUHAS CHAMPAKLAL DESAI & ORS.
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Appearance:
HARI K BRAHMBHATT(9070) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 14/10/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Hari K. Brahmbhatt for the
petitioner.
2. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :-
"A. YOUR LORDSHIPS be pleased to issue a writ of certiorari or
writ in the nature of certiorari or any other appropriate writ, order or
direction and be pleased to quash and set aside the impugned Order
dated 08.10.2025 passed by the Hon'ble 2nd Additional Senior Civil
Judge, at Vapi in Special Civil Suit No. 327 of 2015 (Old No. 103 of
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2014) and allow the petition of the petitioner;
B. YOUR LORDSHIPS be pleased refrain the Trial Court to
examine the Pl or any officer involved in the Criminal Case 729 of
2016, Special Civil Suit No. 327 of 2015 (Old No. 103 of 2014) in the
interest of justice.
C. YOUR LORDSHIPS be pleased to, pending the admission,
hearing and final disposal of this petition, refrain the Trial Court to
record any evidence /testification as witness of the Pl in the Special
Civil Suit No. 327 of 2015 (Old No. 103 of 2014), in the interest of
justice;
D. YOUR LORDSHIPS be pleased to grant ex-parte ad interim
relief in terms of Para 11 (C), in the interest of justice;
E. YOUR LORDSHIPS be pleased to grant such other and further
order as the nature and circumstances of the case may be required."
3. The parties will be referred as far as possible as per
their original position in the suit.
Short Facts of the case
4. The petitioner herein is original defendant No.18 of
Special Civil Suit No. 327 of 2015 filed by respondents No.1 &
2 herein and rest of the respondents are original defendant
Nos. 1 to 17.
4.1 The suit came up for its trial and during the pendency
of such trial, at the stage of leading evidence, plaintiffs want
to examine Police Officer / Investigating Officer in relation
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to one FIR registered as CR-I 59 of 2014 filed before Pardi
Police Station and which ultimately culminated into charge-
sheet having filed before the learned JMFC, Pardi. So,
plaintiff filed an application below Exh. 191 for issuance of
witness summons to such police official.
4.2 Such application filed below Exh. 191 in the aforesaid
suit came to be allowed by the trial Court, thereby, issued
witness summons to concerned police official. The Rojkam
which produced on record of this writ application suggests
that witness concerned having not remained present for any
reason, the trial Court issued non-bailable warrant against
him.
4.3 At that stage, the impugned application came to be
filed by the defendant No.18 on 08.10.2025 below Exh. 196,
requesting the trial Court to recall its order passed below
Exh. 191, whereby, requested not to examine the
Investigating Officer prior to record of his oral deposition in
Criminal Case No. 729 of 2016 pending before the JMFC,
Pardi.
4.4 After hearing defendant No.18, the trial Court vide its
impugned order dated 08.10.2025 rejected the impugned
application. Hence, the present writ application.
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Submission of the petitioner- defendant No.18
5. Learned advocate Mr. Hari Brahmbhatt would submit
that issuance of witness summons to police official by the
trial Court is nothing but exceeding its jurisdiction so vested
with the Civil Court, inasmuch as, such request of witness
summons accepted by the trial Court without giving an
opportunity of hearing to the petitioner.
5.1 Learned advocate Mr. Brahmbhatt would state and
submit that FIR filed by the plaintiffs against the power of
attorney holder of predecessors of plaintiffs including
defendants No. 1 to 17 in relation to execution of sale-deed
by him in favour of defendant No.18, wherein charge-sheet
came to be filed against the accused concerned but the
petitioner is not array as an accused. It is submitted that
when criminal trial of such FIR is pending before the JMFC,
Pardi, it would not be appropriate on the part of the trial
Court to issue witness summons to the police official, who, in
fact, yet not be examined before the Criminal Court.
5.2 Learned advocate Mr. Brahmbhatt would further
submit that there are other disputed questions of facts
involved in the suit, inasmuch as, mother of plaintiffs has
already received sale consideration in year 2008 when there
was an execution of sale-deed by the power of attorney of
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the aforesaid persons. Whereas, FIR in question filed by the
plaintiffs in the year 2014 which is nothing but after thought.
It is further submitted that mother of plaintiffs has already
issued receipt in regards to receive money for sale
consideration from the petitioner - defendant No.18.
5.3 Learned advocate Mr. Brahmbhatt would further
submit that if the Investigating Officer would examine
before the Civil Court, it cause serious prejudice to the trial
of criminal case No. 729 of 2016 and in that view of the
matter also, the trial Court could not have exercised its
discretion in favour of the plaintiffs. It is submitted that as
per settled law, finding of Civil Court would supersedes
finding of Criminal Court.
5.4 To buttress his argument, learned advocate Mr.
Brahmbhatt would refer and rely upon the decision of the
Hon'ble Apex Court in the case of V.M. Shah Vs. State of
Maharashtra reported in 1995 (5) SCC 767, more
particularly Para-11.
5.5 Making the above submission, learned advocate Mr.
Brahmbhatt would request this Court to allow the present
writ application.
Point for determination
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6. The short question falls for my consideration as to
whether in the facts and circumstances of the case, any gross
illegality, irregularity or any jurisdictional error committed by
the trial Court while issuing witness summon to Investigating
Officer of FIR being CR-1 No. 59 of 2014 registered before
Pardi Police Station ?
Analysis
7. The facts which are stated hereinabove are not in
dispute. The suit in question came to be filed for cancellation
of a sale deed executed by power of attorney holder of the
predecessor of plaintiffs and defendant No.1 to 17 in favour
of defendant No.18, on the basis that such sale-deed though
executed power of attorney of the aforesaid person, there
was fraud played by the defendants No. 1 to 17, having
fraudulently obtained signature of predecessor of plaintiffs
on power of attorney.
8. At this stage, this Court would not like to go deep into
the merit of the matter, inasmuch as, this Court requires only
to see, as to whether the impugned order passed by the trial
Court, whereby, rejected the prayer of petitioner -defendant
No.18 in relation to not to examine the Investigating Officer
concerned, is just and proper or not.
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9. The plaintiffs appear to have filed an application below
Exh. 191 in the suit, whereby, requested the trial Court to
issue witness summon to Investigating Officer of said FIR.
The same was readily accepted by the trial Court. The said
order sought to be recalled by defendant No.18 by
impugned application is already implemented. As noticed
hereinabove, as per Rojkam of the suit, it appears that
Investigating Officer concerned not remained present for
any reason, thereby, a non-bailable warrant issued against
him. At that stage, the impugned application came to be
filed by the defendants No. 18 below Exh. 196 in the suit.
10. After going through impugned order, I do not find any
error of law much less any gross error, thereby no
interference of this Court requires in the impugned order. As
such, I am in complete agreement with reasons assigned by
Trial Court while rejecting the impugned application.
11. Nonetheless, for the following reasons also, such
request of defendant No.18 requires to be rejected.
(i) The witness summon was issued by the trial Court
exercising its power under Order 16 rule 1 of CPC.
(ii) The law is settled on such issue that whenever any
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party to the suit filed an application before the trial Court
requesting to issue witness summon, such application has to
be allowed by the Court, in the interest of justice.
(iii) The issue is no longer remain res-integra having
decided by the Division Bench of this Court in the case of
'Bharat Heavy Electricals Limited Vs. Ineos Styrolution Ltd.
reported in 2019 (0) AIJEL-HC 241593 / 2021 AIR (Guj) 12,
wherein (Authored by Hon'ble Mr. Justice J.B. Pardiwala, His
lordship then was) held thus :-
"16. A reading of the aforenoted authorities leads us to lay down the
following propositions.
(1) Under Order 16, Rule 1, C.P.C. it is the right of the party at any
stage of the suit to make an application to the Court seeking that
summons be issued to a witness either to give evidence or to produce
documents.
(2) The Court is not entitled to refuse such an application on the
ground that it might cause delay in the trial of the suit on the adjourned
date of the suit.
(3) If the summons is not served by the adjourned date of the suit
the party who filed the application to issue the summons would take
the risk.
(4) If an application for adjournment is made at the instance of the
party who applied under Order 16, Rule 1, Civil P. C. it is for the Court
to consider whether or not an adjournment should be granted.
(5) The Court may not refuse to order an application under Order
16, Rule 1, Civil P. C. on the ground that the evidence, if
produced, may not be of any help to the applicant.
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(6) Though Order 16, Rule 1, C.P.C. does not in terms impose any
restrictions on the Court, the Court in the exercise of its inherent
jurisdiction may refuse to issue summons in an application made
under Order 16, Rule 1, C.P. in those cases where it is satisfied that
the application filed was not bona fide or was vexatious or granting the
application would result in an abuse of process of the Court. Except in
these three above contingencies the application must almost always
be ordered."
(emphasis supplied)
(iv) The examination of witness is a discretion available
with the party concerned and what would be the outcome of
examination would be decided at the end of the trial by the
trial Court concerned. It would be inappropriate to suggest
anything at this stage that examination of an Investigating
Officer would prejudice the criminal trial. Such an
apprehension voiced by defendant No.18 is un-digestible,
inasmuch as, undisputedly, defendant No.18 is not array as
an accused when charge-sheet is filed. So, no prejudice
caused to him by examination of police official.
(v) According to my view, there is no need to give an
opportunity of hearing to other side when such application
allowed by the trial Court, whereby witness summon issued
as per request of the plaintiff, inasmuch as, in view of the
aforesaid decision in the case of Ineos Styrolution Ltd
(supra), there is hardly any discretion left with the trial Court
to refuse such type of application.
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(vi) Apart from above, when witness summon already
issued by the trial Court and appears to have not been fully
acted upon by witness concerned, having faced with non-
bailable warrant issued by the trial Court, this Court would
not like to interfere with such order passed by the trial
Court. To interfere with such process would only undermine
the authority of the Court, which this Court would not like to
do so, when exercising its power under Article 227 of the
Constitution of India.
12. Further, it is to be observed that while rejecting the
impugned application, the trial Court take note of the fact
that standard of proof so far as Civil Court and Criminal
Court are concerned, both stand on different footing. It is
correctly observed that before the Civil Court, fact needs to
be proved on principle of preponderance of probability,
whereas in a criminal trial, such facts needs to be proved
beyond doubt.
13. There is no cavil that finding recorded by the Civil Court
would super-seed the finding recorded by the Criminal
Court. The fact remains that criminal trial appears to have
not begun in said criminal case. Whereas, trial of said suit is
in the mid-way. Moreover, as per settle legal position of law,
every trial is voyage of discovery in which truth is the quest.
In a case of Maria Margarida Sequeira Fernandes and
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others Vs. Erasmo Jack De Sequeira (Dead) through LRs.
reported in (2012) 5 SCC 370, wherein it has been held
thus:-
"33. The truth should be the guiding star in the entire judicial
process. Truth alone has to be the foundation of justice. The entire
judicial system has been created only to discern and find out the real
truth. Judges at all levels have to seriously engage themselves in the
journey of discovering the truth. That is their mandate, obligation and
bounden duty. Justice system will acquire credibility only when people
will be convinced that justice is based on the foundation of the truth."
14. So, it would be gainsaid that to find out a truth be it
before the Civil Court or the Criminal Court, the Court is not
powerless to exercise its discretion to get real truth.
15. Thus, in view of aforesaid, the decision so cited by the
learned advocate Mr. Brahmbhatt for the petitioner in the
case of V.M. Shah (supra) would not be applicable and
helpful to his argument. In view of aforesaid, I am not at all
impressed by any of the submissions so canvassed by the
learned advocate for the petitioner, the same is hereby
rejected.
16. Before parting, this Court having its power of
superintendence under Article 227 of the Constitution of
India, requires to sparingly exercise such power. This Court
cannot and should not interfere with the every order passed
by the trial Court at the drop of a hat. Unless and until, it has
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been so glaring irregularity or illegality pointed out on the
face of the order thereby one may conclude that order
impugned either erroneous, perverse and or passed contrary
the provisions of law, this Court should not interfere with
such order. Nothing sort of such has been surfaced in this
case as stated above. [See : Sameer Suresh Gupta TR PA
Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC
374 and Garment Craft v. Prakash Chand Goel, reported in
(2022) 4 SCC 181].
17. In light of the aforesaid peculiar facts and
circumstances of the case and keeping in mind the ratio of
the Division Bench of this Court in the case of Bharat Heavy
Electricals (supra) and Maria Margarida Sequeira
Fernandes (supra), I am of the view that there is no illegality,
irregularity much less any gross error of law and or any
jurisdictional error committed by the trial Court while
rejecting the impugned application.
18. The trial Court shall see to it that the trial of the suit
can be completed within stipulated time as directed by the
Hon'ble Apex Court, whatever steps to be taken by the trial
Court to complete the trial, the same shall be taken without
fail.
Conclusion
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19. In view of the foregoing observations, discussions and
reasons, the present writ application is bereft of merit and
requires to be rejected, which is hereby rejected. No order as
to costs.
Sd/-
(MAULIK J.SHELAT,J)
SALIM/
