NATHIBEN BANSIBHAI PATEL THROUGH POA VINODKUMAR BANSIBHAI PATEL vs KURIBEN VELCHANDBHAI PATEL
- Court
- Gujarat High Court
C/SCA/9935/2026 JUDGMENT DATED: 22/10/2026
(GJHC240493102026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9935 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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NATHIBEN BANSIBHAI PATEL THROUGH POA VINODKUMAR BANSIBHAI
PATEL
Versus
KURIBEN VELCHANDBHAI PATEL
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Appearance:
MS. KRUPA P SONI(10048) for the Petitioner(s) No. 1
NAVEEN D PATEL(9030) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 22/10/2026
JUDGMENT
1. Heard Ms. Krupa P. Soni, learned advocate for the petitioner
as also Mr. Naveen D. Patel, learned advocate for the respondent.
2. Rule returnable forthwith. Mr. Patel, learned advocate waives
service of notice of Rule for and on behalf of the respondent.
3. With the consent of the learned advocates appearing for the
respective parties, the present matter is taken up for final hearing.
4. This petition is filed under Article 227 of the Constitution of
India, seeking the following reliefs:-
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“(A) YOUR LORDSHIPS may be pleased to issue writ of
certiorari, or any other appropriate writ, order or direction
in the nature of certiorari, order or direction of quashing
and setting aside order dated 05.05.2026 passed below
order Exh.23 by the Ld. Additional Civil Judge, Idar in
Regular Civil Suit No. 49 of 2022 and be pleased to allow the
same as prayed for in the interest of justice. (Annexure-G)
(B) During pendency and final disposal of this application
YOUR LORDSHIPS may be pleased to stay further
proceedings of Regular Civil Suit No.49 of 2022 pending
before the court of the Ld. Additional Civil Judge, Idar, on
any condition that may be deemed fit and proper in the
interest of justice.
(C) YOUR LORDSHIPS may be pleased to pass such other
order as may be deemed just and proper in the
circumstances of the case.”
5. This Court vide its order dated 07.08.2026, while issuing
notice for final disposal, passed the following order:-
“1. Heard Ms.Krupa P. Soni, learned advocate for the
petitioner. Learned advocate would submit that the
petitioner is ready to bear the cost of the respondent, if this
Court may grant one indulgence in favour of the petitioner.
It is submitted that the right of the petitioner, who happens
to be plaintiff, was foreclosed by the Court and despite the
request it was not reopened. It is further submitted that
there is no gross negligence on the part of the plaintiff not to
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file oral evidence within time, but due to misconception or
otherwise, the same could not be filed. The plaintiff was
represented through the power of attorney, who died and
another power of attorney was appointed and in between
the right of the plaintiff to lead evidence was closed.
2. Having heard learned counsel Ms.Krupa Soni and
upon considering the facts and circumstances of the case,
whereby it appears that the right of the petitioner being
plaintiff to lead oral evidence was closed on 15.04.2026,
whereas impugned application below Exh.23, filed on
5.5.2026, whereby requested the trial Court to reopen it and
the same was rejected. Since the petitioner is ready to bear
the cost of the respondent, without delving further into the
issue at this stage, issue NOTICE for final disposal
returnable on 06.10.2026. To be listed on the top of the
Board.
3. The petitioner shall have to first deposit cost of
Rs.15,000/- with the registry of this Court on or before
21.08.2026. Upon deposit of such amount of cost, the
registry shall issue notice to the respondent. It is open for
the respondent to withdraw aforesaid amount upon
entering appearance in person or through advocate. “
6. Ms. Soni, learned advocate appearing for the petitioner, would
reiterate her submissions which were recorded by this Court in its
aforesaid order.
7. Per contra , Mr. Patel, learned advocate appearing for the
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respondent, would submit that there is no error much less any gross
error of law committed by the Trial Court while closing the right of
the petitioner to lead oral evidence.
7.1 It is submitted that due to negligence on the part of the
petitioner, the trial proceeding got delayed and despite giving a
reasonable opportunity to the petitioner to lead evidence, the
petitioner did not turn up, ultimately, resulted into passing of the
impugned order by the Trial Court.
7.2 Mr. Patel, learned advocate, would submit that even if this
Court is inclined to accept the request made on behalf of the
petitioner, some conditions may be imposed upon the petitioner,
apart from cost, that he shall cooperate with the trial and may not
take unnecessary adjournment while leading his evidence and/or
cross-examining the respondent-defendant.
8. Having heard the learned advocates for the respective parties
and upon perusal of the impugned order, prima facie , it appears that
due to non-availability of the petitioner being plaintiff on some
occasions, his right to lead oral evidence was closed by the Trial
Court. The petitioner filed an application to reopen his right to lead
evidence vide application Exhibit-23, which came to be rejected by
the Trial Court vide its impugned order.
9. It is true that the petitioner, being plaintiff, ought to have taken
due care to see that the trial should not be delayed for any reason,
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but at the same time, considering the peculiar facts and
circumstances of the case, it would not come out that there was any
gross negligence or mala fide on the part of the petitioner to prolong
the trial of the suit, which otherwise instituted by him.
10. It is now well-settled position of law that rule of procedure is
the handmaid of justice and the paramount consideration of the
Court is to advance justice to the parties rather to take a pedantic
approach in such type of the matter.
11. At this stage, I would like to refer to the ratio laid down by the
Hon'ble Apex Court in the case of Sugandhi (Dead) by LRs v. P.
Rajkumar, reported in (2020) 10 SCC 706, wherein observed as
follows.
“ [9] It is often said that procedure is the
handmaid of justice. Procedural and technical
hurdles shall not be allowed to come in the way
of the court while doing substantial justice. If the
procedural violation does not seriously cause
prejudice to the adversary party, courts must
lean towards doing substantial justice rather
than relying upon procedural and technical
violation. We should not forget the fact that
litigation is nothing but a journey towards truth
which is the foundation of justice and the court
is required to take appropriate steps to thrash
out the underlying truth in every dispute.
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Therefore, the court should take a lenient view
when an application is made for production of
the documents under sub-rule ( 3 ) .”
(emphasis supplied)
12. It appears that the right of the petitioner was closed on
15.04.2026 and immediately within one month, on 05.05.2026, the
impugned application came to be filed by the petitioner, which
prima facie shows that the petitioner is inclined to conduct the suit
by participating in the trial.
13. Having considered the aforesaid facts and circumstances and
the position of law stands as of date, according to me, by
compensating the respondent in terms of money, the impugned
application could have been allowed by the Trial Court.
14. Having not considered the impugned application filed by the
petitioner in proper perspective; rather taking very hyper technical
approach, the Trial Court has committed serious error in law,
inasmuch as by not reopened the right of the petitioner to lead oral
evidence, it has severely affected the petitioner.
15. Since this Court has already directed the petitioner to deposit
Rs.15,000/- with the Registry of this Court and it has been deposited,
it is open for the respondent to withdraw such amount.
16. At the same time, it is hereby observed that the petitioner shall
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have to participate in the trial without further delay and will not seek
any unnecessary adjournment while leading his evidence and/or
cross-examine the respondent (defendant) or his witnesses. If any
such event would happen, whereby the petitioner in any manner
trying to delay the trial of the suit, it is always open for the
respondent to request the Trial Court to close the right of the
petitioner to lead evidence and or to cross-examine. At that time, an
appropriate decision may be taken by the Trial Court in accordance
with law.
17. In view of the foregoing discussion and reasons, the impugned
order dated 05.05.2026 passed below order Exh.23 by the Ld.
Additional Civil Judge, Idar in Regular Civil Suit No. 49 of 2022 is
quashed and set aside. Consequently, the impugned application filed
by the petitioner below Exh.23 is hereby allowed on aforesaid terms
and condition. Thus, the petitioner is entitled to lead his oral
evidence in accordance with law. Accordingly, the present petition is
partly allowed. Rule made absolute to the aforesaid extent.
(MAULIK J.SHELAT,J)
Lalji Desai
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