Gujarat High Court
Vikrambhai Manubhai Trivedi vs Devshri D/O Hemant Madhukant Shastri ... on 26 July, 2024
NEUTRAL CITATION
C/SCA/20146/2023 ORDER DATED: 26/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20146 of 2023
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VIKRAMBHAI MANUBHAI TRIVEDI & ANR.
Versus
DEVSHRI D/O HEMANT MADHUKANT SHASTRI W/O NILKANTH TRIVEDI
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Appearance:
MR VM TRIVEDI WITH MR YH VYAS(1001) for the Petitioner(s) No. 1,2
MR ARPIT P PATEL(5497) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/07/2024
ORAL ORDER
1. Heard learned advocate for the petitioner and learned advocate for the respondent.
2. Instant petition is filed with following reliefs :-
"A) Call for records & proceedings of Civil suit No. 931 of 2021 from the City Civil Court at Ahmedabad and peruse;
B) Quash and set aside order at Annexture - G dated 16.06.2023 passed on Ex.-56, and direct the City Civil Court to decide Ex.-45, Ex.-70 and other application under S.340(1) pending before it earlier than hearing of Ex.-40, or alternatively direct the City Civil Court to decide all applications i.e. Ex. 36, 40, 45, 70 and other application u/s.340 together- simultaneously- in the interest of justice;
(C) In alternatively, petitioners pray that this petition may kindly be treated as application filed u/s. 340(2) of CrPC and decide it in accordance with law, in the interest of justice;Page 1 of 5 Downloaded on : Tue Jul 30 21:50:54 IST 2024
NEUTRAL CITATION C/SCA/20146/2023 ORDER DATED: 26/07/2024 undefined (D) Pending admission, hearing and final disposal of this petition, by way of interim relief or ad interim relief, stay the further proceeding in the Civil Suit No. 931 of 2021 and direct further that Interim relief granted in Ex.-5 to be continued till further order, in the interest of justice;
(E) Such other and further relief(s) which deem fit may kindly be granted, (F) Cost of this application may kindly be awarded "
3. In essence, the petitioner challenges finding of learned Trial Court, whereby, learned Trial Court has given priority to hearing of the application filed under Order 7 Rule 11 of CPC for rejecting the plaint at Exh.40. It is submitted by learned advocate for the petitioner that prior to filing of application Exh.40, the petitioner has filed application Exh.36 under section 340 of Cr.P.C. to take necessary action against defendant for filing false facts on oath. This application was twice heard but not disposed of by the Court. It is submitted that another application Exh.70 was filed under section 340 of Cr.P.C. for false statement in application Exh.40, yet this application is not heard and respondent in order to derail the proceedings of section 340 of Cr.P.C., filed application under Order 7 Rule 11 of CPC for rejection of plaint. Learned advocate for the petitioner would submit that learned Trial Court committed error in passing order below Exh.56 and giving priority to hearing of application filed under Order 7 Rule 11 of CPC, instead of deciding application Exh.36 which is filed prior in point of time. He would submit that the Court may give priority to hearing of application under Order 7 Rule 11 of CPC along with said application, the Court should also decide application filed under section 340 of Cr.P.C. Learned advocate for the petitioner Page 2 of 5 Downloaded on : Tue Jul 30 21:50:54 IST 2024 NEUTRAL CITATION C/SCA/20146/2023 ORDER DATED: 26/07/2024 undefined submits that if the Court decides application under Order 7 Rule 11 of CPC against the plaintiff and believes that Court has no jurisdiction to try and decide application, then application under section 340 of Cr.P.C. would remain without decision and in such circumstances, the plaintiff has to burden High Court under section 340(3) of Cr.P.C. for decision of this application. He would further submit that either applications be may heard together or application filed prior point in time be heard first. Learned advocate for the petitioner placed reliance on the decision of the Hon'ble Apex Court in the case of M.S.Sheriff v/s. State of Madras [AIR 1954 SC 397] as well as judgment in the case of Rugmini Ammal (Dead) By Lrs. v/s. V.Narayana Reddiar [2007 (12) SCC 611].
3.1. Upon above submission, it is submitted to allow the petition.
4. On the other hand, learned advocate for the respondent submitted that it is settled principle of law that whenever application under Order 7 Rule 11 of CPC is filed, same is to be decided on priority basis leaving other applications aide as issue which is raised in application under Order 7 Rule 11 of CPC reaches to core and jurisdiction of concerned Court and in that circumstances, learned Trial Court has not committed any error in granting application Exh.56. Therefore, it is submitted not to allow this petition.
5. What striking could be notice after hearing learned advocates for the parties that learned Trial Court has relied on two judgments while allowing application. Firstly in the case of Page 3 of 5 Downloaded on : Tue Jul 30 21:50:54 IST 2024 NEUTRAL CITATION C/SCA/20146/2023 ORDER DATED: 26/07/2024 undefined M.S.Sheriff (supra) and another in the case of Satellite Television Asian Region Ltd. v/s. Kunvar Ajay Foods Pvt. Ltd. [2009 (1) GLJ 590], wherein, this Court in para 22 has observed following :-
"22.It is also required to be noted that even the application submitted by the defendants to dismiss the suit under Order 7 Rule 11 of the Code of Civil Procedure were pending, but the learned trial court did not decide the same on the grounds that such an application is not required to be decided before an application for leave to defend. It appears that there also the learned trial court has committed an error. Application under Order 7 Rule 11 of the Code of Civil Procedure is required to be considered and dealt with at any stage and even the same can be decided even prior to deciding the application for leave to defend, as once it is held that the suit is required to be dismissed on the ground that the same is not maintainable, there will not be any occasion thereafter to decide the application for leave to defend and/or summons for judgment. Even looking to purpose for which Order 7 Rule 11 of the Code of Civil Procedure is enacted, such application under Order 7 Rule 11 of the Code of Civil Procedure is required to be decided by the courts at the earliest."
6. Later on in the case of R.K.Roja v/s. U.S.Raydu [2016 (14) SCC 275], the Hon'ble Apex Court found fault with the decision of High Court on the ground that application under Order 7 Rule 11 of CPC for rejection of plaint was kept with main petition. The Hon'ble Apex Court has held that procedure adopted by Court is not warranted under law. Without disposing an application under Order 7 Rule 11 of CPC, the Court could not proceed with trial. Taking assistance of this two judgments, learned Trial Court decided the application Exh.56 and set priority to application filed under Order 7 Rule 11 of CPC. I see no reason to interfere with the impugned order passed by the learned Trial Page 4 of 5 Downloaded on : Tue Jul 30 21:50:54 IST 2024 NEUTRAL CITATION C/SCA/20146/2023 ORDER DATED: 26/07/2024 undefined Court.
7. So far as judgment relied by learned advocate for the petitioner in the case of M.S.Sheriff is concerned, it is in general motion that when criminal matters are kept along with civil matters, criminal matters is to be given priority. Said proposition would not help the petitioner herein. So far as judgment in the case of Rugmini Ammal (supra) is concerned, it is in regard to application to be filed under section 340 and 341 of Cr.P.C. In such application, the plaintiff objected for not filing of the complaint if it is found that procedure has been taken up with the Court. This judgment also does not help the case of the petitioner.
8. The submission that all the applications be heard together, cannot be accepted in the ration laid down in the case of R.K.Roja (supra).
9. In view of above, the petition is dismissed. Interim relief granted earlier, if any, stands vacated.
(J. C. DOSHI,J) SATISH Page 5 of 5 Downloaded on : Tue Jul 30 21:50:54 IST 2024