Gujarat High Court

Faridabibi Murtujabhai Shaikh vs Rukaiyaben Wife Of Maiyuddin Adambhai ... on 10 September, 2025

                                                                                                       NEUTRAL CITATION




                           C/SCA/10249/2013                            JUDGMENT DATED: 10/09/2025

                                                                                                        undefined




                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                   R/SPECIAL CIVIL APPLICATION NO. 10249 of 2013
                                                        With
                                     CIVIL APPLICATION (FOR STAY) NO. 1 of 2013
                                  In R/SPECIAL CIVIL APPLICATION NO. 10249 of 2013
                                                        With
                               CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2025
                                  In R/SPECIAL CIVIL APPLICATION NO. 10249 of 2013

                      FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MR. JUSTICE MAULIK J.SHELAT
                       ==========================================================

                                   Approved for Reporting             Yes          No
                                                                                   ✓
                      ==========================================================
                                    FARIDABIBI MURTUJABHAI SHAIKH & ANR.
                                                    Versus
                           RUKAIYABEN WIFE OF MAIYUDDIN ADAMBHAI AND DAUGHTER OF
                                     NATHUBHAI RASULBHAI AJMERI & ORS.
                      ==========================================================
                      Appearance:
                      MR ABDUL K SHAIKH(1629) for the Petitioner(s) No. 1,2
                      DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
                      for the Respondent(s) No. 2,4
                      DS AFF.NOT FILED (R) for the Respondent(s) No. 4.1,4.2,4.3,4.4,4.5,6
                      MR ZUBIN F BHARDA(159) for the Respondent(s) No. 1,3
                      RULE SERVED for the Respondent(s) No. 2.1,2.2,5
                      ==========================================================
                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
                                          Date : 10/09/2025
                                          ORAL JUDGMENT

1. Heard learned advocate Mr.Abdul K. Shaikh for the

petitioners and learned advocate Mr.Zubin F. Bharda for the

respondent nos.1 and 3. Though served, none appears for rest

of the respondents.

2. It is reported and stated at the bar by learned advocate

Mr.Shaikh that the petitioners have served respondent Nos.4.1

NEUTRAL CITATION

C/SCA/10249/2013 JUDGMENT DATED: 10/09/2025

undefined

to 4.5 & 6 and necessary affidavit has been filed.

3. Nonetheless, learned advocate Mr. Sheikh would state

that respondent No.4.5 died, but his legal heirs are already

brought on record of the case. Likewise, learned advocate Mr.

Sheikh would further state that petitioner No.1 also died, but

this matter can be prosecuted by petitioner No.2.

4. The present application is filed under Article 227 of the

Constitution of India, seeking the following relief:-

"a. This Hon'ble Court may be pleased to admit, hear and allow this Petition and further be pleased to quash and set aside the order dtd.27-10-2010 passed by the Learned Judge of Small Cause Court at Ahmedabad below Exhi-121 in Suit No.468/2005.

b. Be pleased to call for record and proceeding of Suit No.468/2005.

c. Be pleased to pass such other and further reliefs as may be deemed fit by your Hon'ble Court in the facts and circumstances of the case and in the interest of justice."

5. The short controversy in the matter in a narrow compass

is that an order passed by the Trial Court, whereby a witness

summons came to be issued upon the petitioners herein, who

happen to be defendant Nos.1 and 2 of HRP Suit No. 468 of

2005, is challenged by them by way of this writ application.

NEUTRAL CITATION

C/SCA/10249/2013 JUDGMENT DATED: 10/09/2025

undefined

6. According to learned advocate Mr. Sheikh, the impugned

order is not only erroneous and perverse but also contrary to

the facts on record and passed in ignorance of an earlier

judgment and decree dated 14.03.2002, passed by Small Causes

Court No.2, Ahmedabad in HRP Civil Suit No. 1942 of 1997.

6.1. Learned advocate Mr. Sheikh would submit that such

type of application i.e., below Exhibit 107, was previously filed

by the plaintiff of the suit in question, which came to be

rejected by the Trial Court vide its order dated 08.04.2008.

6.2. According to learned advocate Mr. Sheikh, no witness

summons could have been issued upon defendant Nos.1 and 2

at the instance of defendant No.3, who also happens to be the

brother of the plaintiff.

6.3. It is respectfully submitted that when, in an earlier

round of litigation, issues are settled between the parties, a

new round of legal litigation at the instance of plaintiff /

defendant No.3 is not permitted.

6.4. Making the above submission, learned advocate Mr.

Sheikh requests this Court to allow the present writ

NEUTRAL CITATION

C/SCA/10249/2013 JUDGMENT DATED: 10/09/2025

undefined

application.

7. Per contra, learned advocate Mr. Bharda, appearing for

respondent Nos.1 and 3, would submit that, as such, the

impugned application, though filed at the instance of original

defendant No.3 below Exhibit 121 in the suit, died during the

pendency of the present application, and her legal heirs are

not appearing before this court but he would assist this Court.

7.1. Learned advocate Mr.Bharda would submit that there

is no gross error of law, much less any jurisdictional error,

committed by the Trial Court in allowing the impugned

application.

7.2. Learned advocate Mr. Bharda would submit that there

is no bar under law that one party cannot call upon and

examine another party to the suit when such party has not

stepped into the witness box on its own.

7.3. Learned advocate Mr. Bharda would submit that,

considering the facts and circumstances of the case and the

reasons set out in the impugned order, no fault can be found

with the order impugned in the present application.

NEUTRAL CITATION

C/SCA/10249/2013 JUDGMENT DATED: 10/09/2025

undefined

7.4. Making the above submission, learned advocate Mr.

Bharda would request this court to reject the present

replication.

8. No other and further submissions are made.

9. Having heard the learned advocates appearing for the

respective parties, what emerges from the record is that the

petitioners herein are original defendant Nos.1 and 2 of HRP

Suit No. 468 of 2005. Though, they appeared in the suit, they

did not intend to put themselves into the witness box, as they

were not inclined to examine themselves before the Trial

Court.

10. In light of that situation, when the defendant filed the

impugned application at Exhibit 121, thereby, requested the

Trial Court to issue witness summons upon defendant Nos.1

and 2, no fault can be found with the order passed by the

Trial Court when it accepted such a request.

11. As such, learned advocate Mr. Sheikh was not in a

position to show any provision either under the Civil Procedure

Code or under the Evidence Act, which precludes one party

NEUTRAL CITATION

C/SCA/10249/2013 JUDGMENT DATED: 10/09/2025

undefined

from calling upon another party as a witness to be examined

in the trial of the suit.

12. In the absence of such bar, when a request is made by

one party to call upon another party to be examined as a

witness, and discretion is exercised in favor of such party by

the Trial Court, I am of the view that there is neither any

jurisdictional error nor any gross error of law committed by

the Trial Court which requires any interference by exercising

power of superintendence under Article 227 of the Constitution

of India.

13. It is also one of the contentions raised by learned

advocate Mr. Sheikh that when, in an earlier litigation, a

similar request by the plaintiff was rejected by the Trial Court,

such request at the instance of defendant No.3 could not have

been accepted.

13.1. Such an argument would not be appreciated and not

accepted inasmuch as merely because, in a case where the

plaintiff requested for issuance of witness summons, it was

denied by the Trial Court, it would not ipso facto preclude

NEUTRAL CITATION

C/SCA/10249/2013 JUDGMENT DATED: 10/09/2025

undefined

defendant No.3 from seeking a similar prayer, as the Trial

Court has also assigned its reason for rejecting such contention

in the impugned order, to which I am in complete agreement.

14. At this stage, it is apposite to refer and relied upon a

decision of Coordinate Bench of this Court in the case of

Bhavesh Nareshchandra Amin V/S Dilipbhai Bhaktiprasad Doshi

reported in 2023 3 GLR 2404 while heavily relying upon

decision of the Division Bench of this Court in case of Bharat

Heavy Electricals Limited vs. INEOS Styrolution Ltd.,

reportedon 2021 AIR (GUJ) 12, this court was of the opinion

that, ordinarily, any request made by a party to the suit for

assurance of a witness summons should be accepted at any

stage of the suit and the Division Bench has laid down the

principles for adjudicating an application filed under Order 16

Rule 1 of CPC, which are as under:-

"[15] This Court in Bharat heavy Electrical Limited(supra) , after analyzing earlier decisions of other High Courts, had laid down certain propositions as regards Order 16 Rule 1 of CPC. The said propositions, finding place an paragraph no. 16 and wheres such paragraph being relevant for the present purpose, is quoted hereinbelow for benefit:

16. A reading of the aforenoted authorities leads us to lay

NEUTRAL CITATION

C/SCA/10249/2013 JUDGMENT DATED: 10/09/2025

undefined

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.

(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 o 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."

[16] Having discussed the law on the issue of witness summons, this Court would now examine whether the application was required to be rejected on any of the three contingencies as laid down by Hon'ble Division Bench of this Court in Bharat Heavy Electricals Limited (supra). It would be required to be noted herein that as such, as regards the first two contingencies i.e the

NEUTRAL CITATION

C/SCA/10249/2013 JUDGMENT DATED: 10/09/2025

undefined

application either lacking bonafides or the application being vexatious, neither it is the opinion of this Court nor has it been submission of learned Advocates appearing for respondents no.1, 2 and 3 that the application should have been dismissed on the above contingencies.

16.1 To elaborate by way of the application dated 20.10.2022, the petitioner was seeking to produce original copy of an 'agreement of consent' and report of the Fingerprint Bureau of Forensic Science Laboratory which had examined the said agreement and also for examination of the author of the report given by the FSL. It would appear that the suit in question, had been filed for declaration that the 'agreement of consent' referred to hereinabove was fraudulent. It also does not appear that such an application had been given hereinbefore and had been rejected or that the application had been moved by someone who was not concerned with the outcome of the suit. Thus it would appear that the application was neither lacking bonafides nor vexatious.

(emphasis supplied)

15. Lastly, I would like to observe that the scope and ambit

of interference by this Court while exercising its power under

Article 227 of the Constitution of India is very limited and

such right should be exercised sparingly and cannot be

exercised at the drop of a hat. [See Sameer Suresh Gupta TR

PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC

374 (Para 6 and 7) and Garment Craft v. Prakash Chand Goel,

reported in (2022) 4 SCC 181 (Para 15 and 16)].

16. In light of the aforesaid facts and circumstances of the

NEUTRAL CITATION

C/SCA/10249/2013 JUDGMENT DATED: 10/09/2025