Gujarat High Court
Artiben Arvindbhai Patel vs Rajeshkumar Amratbhai Patel on 26 September, 2025
NEUTRAL CITATION
C/AO/186/2025 ORDER DATED: 26/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 186 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/APPEAL FROM ORDER NO. 186 of 2025
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ARTIBEN ARVINDBHAI PATEL
Versus
RAJESHKUMAR AMRATBHAI PATEL & ANR.
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Appearance:
MR MIT S THAKKAR(11223) for the Appellant(s) No. 1
MR AJAY S JAGIRDAR(2688) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 26/09/2025
ORAL ORDER
1. Admit. Learned advocate Mr. Ajay S. Jagirdar waives
service of notice of admission on behalf of respondents-
Caveator.
2. Heard learned advocate Ms. Megha Jani with learned
advocate Mr. Mit S. Thakkar for the appellant and learned
senior advocate Mr. Mehul S. Shah with learned advocate Mr.
Ajay S. Jagirdar for the respondents.
3. The present Appeal from Order is filed under Order 43
rule 1 of CPC at the instance of original defendant who is
aggrieved by the judgment and order dated 26.08.2025
passed by the 2nd Additional Senior Civil Judge, Ahmedabad
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C/AO/186/2025 ORDER DATED: 26/09/2025
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(Rural) below Exh.5 in Special Civil Suit No. 168 of 2018.
4. At the outset, learned advocate Ms. Jani drawn the
attention of this Court in regards to the previous order
passed by this Court dated 18.03.2025 in Appeal from Order
Nos. 127 of 2017 with 105 of 2019, whereby this Court
remanded the matter back to the trial Court. Learned
advocate Ms. Jani would submit that despite there is a
specific direction issued by this Court to decide the issues
germane in the matter, the trial Court in a slipshod manner,
not decided all such issues more particularly an issue of
readiness and willingness on the part of the plaintiff is
remain untouched having not decided, apart from
erroneously decided the issue as regards existence of
agreement to sell in question.
5. Further, it is pointed out to this Court by the learned
advocate Ms. Jani, not able to controvert it by the learned
senior advocate Mr. Mehul Shah that some of the paragraphs
which are so observed in the impugned injunction order,
would be replica of previous injunction order passed by the
trial Court which was quashed and set aside by this Court
vide its aforesaid order passed in the aforesaid Appeals. It is
submitted that this shows, non-application of mind on part
of trial Court when adjudicated impugned injunction
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C/AO/186/2025 ORDER DATED: 26/09/2025
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application, when remanded back to it.
6. Learned advocates for the respective parties have
submitted that the written arguments submitted by the
plaintiff as well as defendant which are on record of the suit
but appears to have not been taken into account by the trial
Court while adjudicating the impugned application.
7. After arguing for some time, under the instructions of
their respective clients, learned advocates for the parties
have jointly requested this Court that let the impugned
order be quashed and set aside and again the matter may be
remanded back to the trial Court to decide the lis between
the parties.
8. Having heard learned advocates for the respective
parties and considering the request made, it appears that
despite there was a direction issued by this Court vide its
order dated 18.03.2025 passed in Appeal from Order Nos.
127 of 2017 with 105 of 2019, the trial Court has not taken
pain to decide all the issues germane in the matter,
especially raised by the defendant.
9. The relevant observation of the aforesaid order passed
by this Court requires reference which read thus :
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C/AO/186/2025 ORDER DATED: 26/09/2025
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"8. After considering the submissions made by respective learned
advocates appearing for the respective parties and after going through
the impugned order, I am of the opinion that issues which are raised by
the parties are either not gone into or decided by the trial court while
adjudicating impugned application. The proper recourse would be to
remand the matter back to the trial court thereby, the trial Court will
have to rehear Exh.5 - injunction application afresh after giving
opportunity of hearing to both the sides and after considering the
issues / disputes so raised by the parties in their respective pleadings
as well as oral submissions, then after decide afresh Exh. 5 -
injunction application of plaintiff.
8.1 It goes without saying that while undertaking aforesaid exercise,
the trial Court is required to decide injunction application, without being
influenced by any of the observations so made by it which is impugned
in the present appeals as well as any of the observations made by this
Court in the present order.
8.2 The concern so expressed by an alleged agreement to sale as
well as readiness and willingness to perform their part of contract is
concerned, as well as concern of plaintiff about not granting relief qua
two pieces of land which is considered to be new tenure land, such
issues need to be answered by the trial Court while re-examining the
impugned injunction application."
(emphasis supplied)
10. It remain undisputed between the parties that so far as
issue regarding readiness and willingness to perform the
part of the contract by the plaintiffs concerned, same is not
touched upon having not answered by the trial court while
adjudicating the injunction application. Even, there is no
discussion/deliberation/reasons in regards to the issues
raised by the respective parties in their written arguments
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C/AO/186/2025 ORDER DATED: 26/09/2025
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and no discussion/considered ratio laid down by the Hon'ble
Apex Court/High Court of cited decisions, by the trial Court
while passing the impugned order.
11. It is very deplorable state of affairs on the part of the
trial Court that in a very casual and slipshod manner
injunction application is decided, despite there was a
direction issued by this Court that too in a suit instituted in
the year 2018. This Court is not appreciating such approach
on the part of the trial Court. Rather, it is constrained to
observe that due to such casualness on the part of the trial
Court, the real sufferers would be the litigants, i.e. the
parties to the suit.
12. In light of the aforesaid peculiar facts and
circumstances of the case, this Court held that impugned
order is not sustainable. As there is consensus ad-idem
between the parties to remand the matter back to the trial
Court, this Court also feels to accept such request.
13. At this stage, learned advocate Ms. Jani for the original
defendant requests this Court that when the matter
remands back to the trial Court, to avoid any such repetition
of mistake or otherwise, let the hearing of the injunction
application may be heard and decided by a fresh mind i.e.
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New Presiding Officer, other than learned judge who
decided impugned injunction application. To which, learned
advocate Mr. Jagirdar only say that if defendant so desire,
she can file such application before Principal District Judge,
Ahmedabad (Rural). Further, learned advocate Mr. Jagirdar
assures that he will properly advice his client in this regard,
and if so requires, they will not object such request made by
the defendant before the concern Principal District Judge.
14. Let parties to the suit more particularly original
defendant of Special Civil Suit No. 168 of 2018 pending
before the 2nd Additional Senior Civil Judge, Ahmedabad
(Rural), may file necessary application within a period of ten
days from today, before the concern Principal District Judge
for allocating the aforesaid suit to any other Presiding
Officer than Presiding Officer who passed impugned order. If
such an application will be submitted by the defendant, the
same may be accepted by the concern Principal District
Judge, keeping in mind the aforesaid aspect of the case.
Nonetheless, if so requires in law, give hearing to the parties,
then it shall decide said request in regards to transfer of suit.
15. In view of the aforesaid observations, discussions and
reasons, the impugned judgment and order dated
26.08.2025 passed by the 2nd Additional Senior Civil Judge,
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C/AO/186/2025 ORDER DATED: 26/09/2025
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Ahmedabad (Rural) below Exh.5 in Special Civil Suit No. 168
of 2018 is hereby quashed and set aside. Consequently, the
injunction application filed below Exh. 5 is restored back to
its original file.
16. It goes without saying that all the contentions which
are raised and to be raised by the parties before the trial
Court, requires to be decided afresh by the trial Court
without being influenced by any of its observation so far
made and or the observation so far made by this Court, but it
will have to decide each and every issues germane in the
matter. The trial requires to pass reasoned/speaking order
on each issue raised. So far as the direction issued by this
Court while remanding matter back to trial Court as referred
herein above would remain unaltered.
17. The trial Court shall hear and decide afresh Exh.5
injunction application keeping in mind the aforesaid factors,
albeit after giving opportunity of hearing to both the side
and decide it on or before 15.12.2025.
18. As this Court has quashed the impugned order passed
by the trial Court, the defendant is hereby directed not to
create any third party rights on the suit property until Exh.5
decides afresh by the trial court. This arrangement is made
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C/AO/186/2025 ORDER DATED: 26/09/2025
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just to avoid any future complications until Exh.5 application
is decided by the trial Court. The trial court shall decide such
application without being influenced by the order of this
Court thereby directs defendant not to create any third
party right over the suit property.
19. It is open for the respective parties to make all the
submissions available in law and also open for the parties to
file additional written submissions if so desire.
20. In view of the aforesaid the present Appeal from Order
is partly allowed to the aforesaid extent. As a sequel, Civil
Application for stay stands disposed of.
(MAULIK J.SHELAT,J)
SALIM/
