Gujarat High Court
Maltiben Jekishanbhai Patel W/O ... vs Jorubhai Devatbhai Darbar on 4 September, 2025
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C/SCA/8655/2024 ORDER DATED: 04/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8655 of 2024
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MALTIBEN JEKISHANBHAI PATEL W/O ANILBHAI
Versus
JORUBHAI DEVATBHAI DARBAR & ORS.
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Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR MANAN A SHAH(5412) for the Respondent(s) No. 33
NOTICE SERVED for the Respondent(s) No.
1,11,12,13,14,15,16,17,18.1,18.2,18.3,19,2,20,21,22,23,24,25,26,27,28,29,3,
30,31,32,34,35,5,8,9
NOTICE UNSERVED for the Respondent(s) No. 4,6,7
UNSERVED EXPIRED (N) for the Respondent(s) No. 10
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/09/2025
ORAL ORDER
1. Heard learned advocate Mr.S.P.Majmudar with learned
advocate Mr.Jamshed Kavina for the petitioner and learned
advocate Mr.Manan A. Shah for the respondent no.33.
2. At the outset, learned advocate Mr.Majmudar would
submit that as per the decision of this Court in the case of
Amad Noormamad Madakia & 11 Others Versus Ghanchi Ismail
Hasan Madakia & 9 Others, reported in 2024 1 GLR 396 , a
joint application filed under Order I Rule 10 and Order VI
Rule 17 of the Civil Procedure Code, 1908 (hereinafter referred
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to as "CPC") need not be maintainable and in that view of
the matter, he would request this Court to remand the matter
back to the Trial Court by permitting the petitioner to file an
appropriate application be it under Order I Rule 10 of CPC and
Orde VI Rule 17 of CPC.
2.1. Learned advocate Mr.Majmudar would request this
Court that once, such application will be filed, the same shall
be decided by Trial Court in accordance with law without
being influenced by the order passed by the Trial Court in the
impugned application.
3. Per contra, learned advocate Mr.Shah appearing for
respondent no.33 would have no objection, if such recourse
will be adopted by this court.
3.1. Nonetheless, he would request this Court that as and
when such application will be filed by the petitioner,
respondent no.33 herein may be given a chance to oppose it in
accordance with law.
4. Having heard the learned advocates appearing for the
respective parties, it appears that the impugned application so
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filed by the petitioner was under Order I Rule 10 and Order VI
Rule 17 of CPC, which came to be rejected by the Trial Court,
albeit, on its merits.
5. Now, in view of the decisions of the Coordinate Bench
of this Court in the case of Amad Noormamad Madakia
(Supra), wherein it held thus:-
"[11] Insofar as the provisions of joining the party pending the
suit governed by O.1 R.10 of the CPC or seeking amendment in
pleading under O.6 R.17 of the CPC are concerned, they are
independent provision. Registration of notice of the suit for
claiming the application of principle of lis pendens as stated
herein above is necessary in the State of Gujarat; in absence
thereof the plaintiff cannot ask that transaction as pendent lite the
suit is subservient to judgment and decree; but question would
arise that whether non-applicability of principle of lis pendens
would anyway affect the right of the plaintiff to join the third party
in the suit under O.1 R.10 of the CPC feeling that presence of the
party is necessary to adjudicate the dispute effectively. Non-
registration of the notice of the suit as provided in Section 52
applicable to the State of Gujarat would not deter the Court from
exercising power under O.1 R.10 of CPC feeling that presence of
the party is necessary for the expedient decision of the suit.
Amendment in the pleading has different fabric and connotations
and it can be decided on its own merits. It can be decided
independently on merits and contentions raised before the Court.
[12] What appears on plain reading of the application at Exh.24
filed in the suit in question, the petitioner claimed combined relief
under O.1 R.10 along with O.6 R.17 of the CPC. Relief under O.1
R.10 and O.6 R.17 of CPC are based on different cause and
different contentions. Combined application was not maintainable.
Thus, the case is required to be remanded back to the Court
below for fresh consideration.
[13] For the foregoing reasons and finding, the petition is allowed;
the impugned order is quashed and set aside. Matter is
remanded back to the Court below. It would be open for the
petitioner to prefer two separate application for claiming relief
under O.1 R.10 and O.6 R.17 of the CPC which shall be heard
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and decided strictly in accordance with the law and independent
of its merits uninfluenced by any of the observations made herein
above. Rule is made absolute to the above extent."
(emphasis supplied)
6. In view of the aforesaid and as per the submissions made
by learned advocates appearing for the respective parties, I am
also of the view that impugned order requires to be quashed
and set aside, which is hereby quashed and set aside and the
matter is remanded back to the Trial Court.
7. It would be open for the petitioner to prefer two separate
applications for claiming relief under Order I Rule 10 of CPC
and Order VI Rule 17 of CPC, which shall be heard and
decided in accordance with, independently on its merits,
without being influenced by any of the observations so made
by this Court and / or made in the order impugned by the
Trial court.
8. Let such applications will file by the petitioner within 2
weeks from today.
9. The Trial Court shall also allow respondents/defendants of
the suit to file their response within 2 weeks thereafter.
10. Once, the pleading of such applications got over, after
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giving an opportunity of hearing to all the parties concerned,
the Trial Court shall hear and decide such applications in
accordance with law within one month.
11. Thus, in view of the foregoing reasons, the present writ
application is hereby partly allowed to the aforesaid extent. No
order as to costs. Interim relief, if any, stands vacated
forthwith. Notice is discharged.
(MAULIK J.SHELAT,J)
MOHD MONIS
