[Cites 3, Cited by 0]
Gujarat High Court
Jaya Parmanand Patel vs Madhurika Ramanlal Patel on 22 April, 2026
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C/SCA/5596/2026 JUDGMENT DATED: 22/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5596 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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JAYA PARMANAND PATEL
Versus
MADHURIKA RAMANLAL PATEL & ORS.
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Appearance:
JENIL M SHAH(7840) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 4,5,6
REFUSED SERVED (N)(10) for the Respondent(s) No. 1,2.1,2.2,2.3,2.4,3
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 22/04/2026
JUDGMENT
1. The present petition is filed under Articles 226 and 227 of the
Constitution of India, 1950 praying for the following reliefs:
(A) A writ of certiorari or any other appropriate writ,
order or direction may kindly be issued quashing and
setting aside the judgement and order dated
07.04.2026 passed by the Court of the Principal
Senior Civil Judge at Karjan in Special Civil Suit No.
72 of 2014 below application, Exh.172, at Annexure -
'I' herein, and the application Exh.172 is required to
be allowed as prayed for;
(B) Pending hearing and final disposal of the present
Special Civil Application, the implementation,
operation and execution of the impugned order dated
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07.04.2026 passed by the Court of the Principal
Senior Civil Judge Karjan in Special Civil Suit No. 72
of 2014 below application, Exh.172, at Annexure - 'I'
herein may kindly be ordered to be stayed;
(C) Pending hearing and final disposal of the present
Special Civil Application, further proceedings of
Special Civil Sui No. 72 of 2014 pending before the
Principal Senior Civil Judge, Karjan may kindly be
ordered to be stayed;
(D) Any other and/or further relief that may be
deemed necessary in the interest of justice may
kindly be granted"
2. Rule. Heard learned advocate Mr. Jenil Shah for the
petitioner. Though served, none appeared for the respondents.
3. Learned advocate for the petitioner has placed on record two
affidavits of service of notice, each dated 21.04.2026, which are
taken on record. It is submitted that respondent Nos. 1 - 4, though
repeated attempts were made for the service of notice, have
refused to accept the notice issued by this Court.
4. Learned advocate for the petitioner - original plaintiff
submitted that the plaintiff has filed the suit for cancellation of a
sale deed. The plaintiff submitted examination-in-chief on
08.04.2024 and, after completion of the evidence of the plaintiff,
defendants moved an application under Order VII Rule 11 of the
Code of Civil Procedure, 1908 (hereinafter, referred to as "the
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Code") for rejection of the plaint which came to be dismissed vide
order dated 30.10.2025, against which, the defendants
approached this Court by way of Civil Revision Application. The
Civil Revision Application also came to be dismissed by the Co-
ordinate Bench of this Court vide order dated 10.02.2026 with a
direction to the learned Trial Court to complete the suit
proceedings preferably within a period of six months. Thereafter,
on 30.03.2026, witness of defendant No. 1 filed examination-in-
chief and also moved an application for giving exhibits to the
documents. The application for giving exhibits came to be heard
and decided on 02.04.2026. Thereafter, the matter was posted for
cross-examination of defendant No. 1 on 07.04.2026. On
07.04.2026, learned advocate for the plaintiff requested to grant an
adjournment as the record was voluminous and the copy of
affidavit was sent to plaintiff, who is stationed at Mumbai. The
learned Trial Court rejected the application and closed the right to
cross-examine witness of defendant No. 1. The matter was then
posted on 16.04.2026. Learned advocate for the plaintiff moved an
application inter alia stating that the plaintiff has assailed the order
dated 07.04.2026. However, the said application also came to be
rejected and the right of final arguments also came to be closed.
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The proceedings were posted for pronouncement of judgment on
20.04.2026. Thereafter, the matter is posted on 23.04.2026 for
pronouncement of judgment.
5. Learned advocate for the petitioner submitted that all
throughout the proceedings, the plaintiff has remained vigilant and
active in the proceedings. Only on one occasion, i.e. on
07.04.2026, as after the application for giving exhibits to the list of
documents submitted by defendant No. 1 came to be granted,
learned advocate for the plaintiff pleaded for an adjournment.
6. It is submitted that by rejecting the application on
07.04.2026, the important right of cross-examination is lost. It is
submitted that if the plaintiff is not permitted to cross-examine
witness of defendant No. 1, the purpose of filing the suit would be
frustrated and the plaintiff would not be able to bring correct facts
on record.
7. It is, therefore, submitted that the petitioner may be permitted
to cross-examine witness of defendant No. 1.
8. Having heard the submissions canvassed by learned
advocate for the petitioner, it appears that the suit is filed by the
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plaintiff - petitioner herein, challenging the registered Benami deed
dated 24.11.1970 executed by defendant No. 5 in favour of
defendant No. 1 and also for a prayer of cancellation of registered
power of attorney dated 07.03.2011, executed by defendant No. 1
in favour of defendant No. 3. The plaintiff has further prayed for a
relief of setting aside and cancellation of a registered sale deed
dated 10.06.2013, executed by defendant No. 1 through her power
of attorney holder - defendant No. 3 in favour of defendant No. 4.
The prayers are also sought for against the defendants, restraining
them from permanently transferring, mortgaging, selling, and
alienating the suit property to any third person. The suit
proceedings have been expedited by order dated 10.02.2026
passed by the Co-ordinate Bench of this Court in Civil Revision
Application No. 151 of 2026 which was arising out of rejection of
an application under Order VII Rule 11 (a) and (d) of the Code.
The suit proceedings were directed to be decided preferably within
a period of six months. Before deciding the application under
Order VII Rule 11 of the Code, on 08.04.2024, the plaintiff
tendered affidavit in lieu of examination-in-chief and the plaintiff
was cross-examined by the defendants. On 30.03.2026, the power
of attorney holder of defendant No. 1 submitted affidavit in lieu of
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examination-in-chief and also produced documentary evidence. A
request was made to exhibit the documents. On 02.04.2026, the
plaintiff engaged another advocate. The application for a prayer to
give exhibits was heard and decided on the same day. Thereafter,
the matter was kept for cross-examination of the power of attorney
holder of defendant No. 1 on 07.04.2026. On 07.04.2026, learned
advocate for the plaintiff submitted an application seeking
adjournment on the ground that the copy of examination-in-chief
and documents have been sent to Mumbai whereby, the plaintiff is
residing and, if no instructions are provided by plaintiff, learned
advocate would retire from the matter. The learned Trial Court
rejected the application and further went on to close the right of
plaintiff to cross-examine the witness of defendant No. 1. The time
limit to complete the suit proceedings is to expire in the month of
August, 2026. This Court is fully conscious about the fact that
when the learned Trial Court is directed to complete the
proceedings within a stipulated time, the learned Trial Court is
duty-bound to complete the proceedings within such time.
However, considering the certified copy of Rojkam which is placed
on record by learned advocate for the petitioner, it appears that
after taking the affidavit in lieu of examination-in-chief on record,
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the proceedings were adjourned to 02.04.2026. On that day, the
documents were exhibited. Thereafter, learned advocate for the
plaintiff sought time on 07.04.2026. Learned Trial Court, instead of
rejecting the application on 07.04.2026, could have granted a last
opportunity to learned advocate for the plaintiff to cross-examine
the witness of defendant No. 1 and could have posted the matter
on any shortest possible date. The Court has to see that the
substantial justice is being done to the parties, rather than deciding
the suit or proceedings in absence of any contradictory material.
Cross-examination is an important right of a party which cannot be
taken away by the Court only on technical ground, unless the party
is found to be grossly negligent and idle in not proceeding with the
Trial and for one reason or the other seeks adjournments and tries
to stall the proceedings. From the cross-examination of a witness,
the material which would come on record, would help the Court
below in deciding the controversy on merits. The Court has also to
consider the conduct of a litigant who seeks time for cross-
examination. In the present case, the conduct of the plaintiff is not
so grave whereby, the right to cross-examine the witness of
defendant No. 1 can be closed on the first adjourned date for
cross-examination. In the present case, the documents produced
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by defendant No. 1 came to be exhibited by an order dated
02.04.2026. Unless the documents are exhibited, no party would
be able to get the sense as to on which documents, the cross-
examination is to be led.
9. Considering the overall facts of the case, in my opinion, and
in the larger interest of justice, a chance is required to be given to
the plaintiff to cross-examine the witness of defendant No. 1.
Resultanlty, the present petition is allowed. The order dated
07.04.2026 passed by the learned Principal Senior Civil Judge.
Kajran in Special Civil Suit No. 72 of 2014 below Application,
Exhibit - 172 is hereby quashed and set aside.
10. It is made clear that no unnecessary adjournments shall be
sought for by the plaintiff or by learned advocate of the plaintiff for
the cross-examination of witness of defendant No. 1.
11. I have been informed by learned advocate for the petitioner
that the suit proceedings are adjourned to 23.04.2026 for
pronouncement of judgment. Since the order impugned is set
aside, the plaintiff or learned advocate of the plaintiff are hereby
directed to cross-examine the witness of defendant No. 1
tomorrow i.e. on 23.04.2026. After completion of the stage to lead
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evidence on behalf of defendants is over, the learned Trial Court
shall, after hearing final submissions, pronounce the judgment
within time stipulated by the Co-ordinate Bench of this Court vide
order dated 10.02.2026.
Direct service today, as prayed for, is permitted.
(D. M. DESAI,J)
MUSKAN
