BIRJUBHAI DOLARBHAI CHOTAI vs HEIRS OF DECD. NIRAJ DOLARBHAI CHOTAI
- Court
- Gujarat High Court
C/SCA/4051/2025 JUDGMENT DATED: 26/10/2026
(GJHC240200492025)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4051 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
=============================================
Approved for Reporting Yes No
√
=============================================
BIRJUBHAI DOLARBHAI CHOTAI & ANR.
Versus
HEIRS OF DECD. NIRAJ DOLARBHAI CHOTAI & ORS.
=============================================
Appearance:
MR NIRAV C THAKKAR(2206) for the Petitioner(s) No. 1,2
MR. JIT P PATEL(6994) for the Respondent(s) No. 1.1,1.2
NOTICE SERVED for the Respondent(s) No. 2
=============================================
CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 26/10/2026
ORAL JUDGMENT
1. Heard Mr.Nirav C. Thakkar, learned advocate for the
petitioners and Mr.Jit P. Patel, learned advocate for the
respondent Nos.1.1 and 1.2. Though served, none appeared
for respondent No.2.
2. Rule returnable forthwith. Mr.Patel, learned advocate,
waives service of notice of rule on behalf of respondent
Nos.1.1 and 1.2.
3. This petition is filed under Article 227 of the Constitution
of India, seeking the following reliefs:
“(A) To admit this petition;
Page 1 of 8
Uploaded by GAURAV J THAKER(HC00951) on Wed Oct 28 2026 Downloaded on : Wed Oct 28 12:05:11 IST 2026
C/SCA/4051/2025 JUDGMENT DATED: 26/10/2026
(GJHC240200492025)
(B) To issue appropriate writ, order or direction
quashing and setting aside directing the order dated
th
13.12.2024 passed by the 4 Additional Senior Civil
Judge, Porbandar in Civil Misc. Application No. 56 of
2023, Annexure ‘E’ thereby allowing the same and
restoring the Special Civil Suit No. 6 of 2022 to file by
recalling the order of dismissal of the suit under Order
9 Rule 3 of the Code of Civil Procedure, 1908 passed
on 22.11.2023; Annexure C"
(C) During pendency and final hearing of this petition,
be pleased suspend the operation, implementation
and execution of the impugned order dated
th
13.12.2024 passed by the 4 Additional Senior Civil
Judge, Porbandar in Civil Misc. Application No. 56 of
2023 Annexure “E" as well as the order dated
22.11.2023 passed in Special Civil Suit No. 6 of 2022
Annexure “C” by permitting the petitioners to lead
evidence in the suit;”
SUBMISSIONS OF THE PETITIONERS :
4. At the outset, Mr. Thakkar, learned advocate for the
petitioners, would submit that the Trial Court has not only
taken a very hyper-technical approach but erroneously
observed that it has no authority to adjourn the suit
proceedings after granting three adjournments in the suit
proceedings. It is further submitted that, in fact, the suit was
dismissed for non-prosecution under Order IX Rule 3 of the
Code of Civil Procedure, 1908 (for short “ CPC ”), whereby no
prejudice would have been caused to the respondents herein
if the suit was restored. It is submitted that as per Order IX
Rule 4 of CPC, the petitioners have a right to file a fresh suit
but to avoid such another proceeding, the suit ought to have
been restored. It is further submitted that to avoid any
multiplicity of proceedings and in the interest of justice, the
Trial Court ought to have exercised the discretion vested in it
Page 2 of 8
Uploaded by GAURAV J THAKER(HC00951) on Wed Oct 28 2026 Downloaded on : Wed Oct 28 12:05:11 IST 2026
C/SCA/4051/2025 JUDGMENT DATED: 26/10/2026
(GJHC240200492025)
and ought to have restored the suit to its original file.
4.1 Mr. Thakkar, learned advocate, would further submit
that issues were framed on 29/08/2023 and within three
months, the suit was dismissed for non-prosecution on
22/11/2023. It is submitted that a reasonable opportunity
ought to have been given to the petitioners, being the
plaintiffs, to lead their evidence, otherwise it amounts to a
miscarriage of justice.
4.2 Lastly, Mr. Thakkar, learned advocate, would submit that
as per the settled position of law, the rule of procedure is the
handmaid of justice and the paramount consideration for the
Court is to pass an order whereby substantial justice can be
advanced rather than foreclosing the rights of the parties.
4.3 Mr. Thakkar would also draw the attention of this Court
to the fact that pursuant to the order passed by this Court on
01/04/2025 while issuing notice, the petitioners have already
deposited costs of Rs.10,000/- with the registry of this Court
as well as Rs.5,000/- with DLSA, Porbandar.
4.4 Making the above submissions, Mr.Thakkar, learned
advocate, would request this Court to allow this petition.
SUBMISSIONS OF THE RESPONDENTS :
5. Per contra, Mr.Patel, learned advocate for the
respondents, has vehemently opposed this petition,
contending, inter alia , that there was no error, much less any
gross error of law, committed by the Trial Court while
Page 3 of 8
Uploaded by GAURAV J THAKER(HC00951) on Wed Oct 28 2026 Downloaded on : Wed Oct 28 12:05:11 IST 2026
C/SCA/4051/2025 JUDGMENT DATED: 26/10/2026
(GJHC240200492025)
rejecting the restoration application filed by the petitioners. It
is submitted that there is no reasonable explanation
forthcoming from the side of the petitioners not to remain
present and lead evidence, which ultimately resulted into
dismissal of the suit in question instituted by the petitioners.
5.1 It is further submitted that the Trial Court has correctly
observed that after granting three adjournments from the
framing of issues, it cannot grant more adjournments,
otherwise the amended provisions of the CPC become otiose.
It is also submitted that merely because the petitioners are
ready to pay the costs, that would not allow the petitioners to
have their lapses condoned.
5.2 Making the above submissions, Mr.Patel, learned
advocate for the respondents, would request this Court to
reject this petition.
6. No other or further submissions have been advanced by
the learned advocates for the respective parties.
ANALYSIS :
7. Having heard learned advocates for the respective
parties and upon perusal of the impugned order and the other
documents annexed with this petition, prima facie, it appears
that the petitioners happen to be the original plaintiffs who
filed an application under Section 272 of the Indian
Succession Act, 1925, seeking probate of the registered Will
of their mother, which appears to have been contested by the
respondents; therefore, it was converted into a suit, being
Page 4 of 8
Uploaded by GAURAV J THAKER(HC00951) on Wed Oct 28 2026 Downloaded on : Wed Oct 28 12:05:11 IST 2026
C/SCA/4051/2025 JUDGMENT DATED: 26/10/2026
(GJHC240200492025)
Special Civil Suit No. 6 of 2022. The issues were framed by
the Trial Court on 29/08/2023 and the suit was dismissed for
non-prosecution on 22/11/2023 as the adjournment
application was not entertained by the Trial Court by
observing that merely because the settlement talks were
going on and it has not resulted in an amicable settlement, it
would not be appropriate to further adjourn the suit
proceedings. The reason for rejection of the impugned
restoration application by the Trial Court is that after granting
three adjournments, it cannot grant any further adjournment
in the suit proceedings, otherwise the provisions of Order XVII
Rule 1 of the CPC become otiose. Thus, without considering
the merits of the impugned application, the Trial Court
appears to have rejected the application. The restoration
application was immediately filed by the petitioners on
07/12/2022, which came to be rejected by the Trial Court vide
its impugned order dated 13/12/2024.
8. It is true that by way of amendment in the CPC, the
parties to the suit proceedings should not ask for unnecessary
adjournments. At the same time, it is a settled position of law
that the rule of procedure is the handmaid of justice and the
paramount consideration of the Court is to advance justice
rather than permanently foreclosing the rights of the parties
in the suit proceedings.
9. It is an undisputed fact that the parties to the suit
proceedings are close relatives and the suit proceedings were
arising out of the probate proceedings and due to such
reason, if there were talks of settlement going on between the
Page 5 of 8
Uploaded by GAURAV J THAKER(HC00951) on Wed Oct 28 2026 Downloaded on : Wed Oct 28 12:05:11 IST 2026
C/SCA/4051/2025 JUDGMENT DATED: 26/10/2026
(GJHC240200492025)
parties and due to such reason time was consumed in the suit
proceedings, it could not have been observed that the
petitioners are unnecessarily prolonging the suit proceedings
without any justifiable cause. At best, the Court could have
granted an adjournment with costs instead of dismissing the
suit and could have put a strict condition upon the petitioners
for leading their oral evidence on the next date of hearing.
10. At this juncture, it would be apposite to refer to and rely
upon the pertinent observations made by the Hon'ble Apex
Court by referring to the provisions of the CPC, in the case of
Sugandhi (Dead) vs P. Rajkumar Rep. By Power Agent
Imamoli - (2020) 10 SCC 706 , wherein it was observed
thus:
“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. Therefore, the court should take a
lenient view when an application is made for
production of the documents under sub-rule (3).”
(emphasis supplied)
11. Mr. Patel, learned advocate for the respondents, though
vehemently opposed this petition, was unable to show any
Page 6 of 8
Uploaded by GAURAV J THAKER(HC00951) on Wed Oct 28 2026 Downloaded on : Wed Oct 28 12:05:11 IST 2026
C/SCA/4051/2025 JUDGMENT DATED: 26/10/2026
(GJHC240200492025)
serious prejudice caused to the respondents if the
adjournment application was granted by the Trial Court
instead of dismissing the suit for default. In fact, the suit
proceeding was dismissed for non-prosecution under Order IX
Rule 3 of the CPC and in that view of the matter, it was also
open for the petitioners to institute fresh proceedings, but
then it would be nothing but duplication of the proceedings
which can easily be avoided by the Court by imposing
conditions including costs.
12. Since this Court has already directed the petitioners to
deposit costs of Rs.10,000/- as probable costs for the other
side and also permitted the respondents to withdraw such
amount upon entering their appearance, according to me, in
the interest of justice, the impugned restoration application is
required to be allowed, with further condition, which I
propose to pass at the end of this order.
13. In view of the foregoing discussion and reasons, the
th
impugned order dated 13/12/2024 passed by the 4 Additional
Senior Civil Judge, Porbandar in C.M.A. No.56 of 2023 is
hereby quashed and set aside. Consequently, C.M.A. No. 56 of
2023 in question is hereby allowed. Accordingly, Special Civil
Suit No. 6 of 2022 is restored back to its original file.
13.1 It is open for the respondents Nos.1.1 and 1.2 herein
who entered their appearance through their lawyer, to
withdraw Rs.10,000/- deposited by the petitioners as costs
with the Registry of this Court. The Registry shall do the
needful in the matter.
Page 7 of 8
Uploaded by GAURAV J THAKER(HC00951) on Wed Oct 28 2026 Downloaded on : Wed Oct 28 12:05:11 IST 2026
C/SCA/4051/2025 JUDGMENT DATED: 26/10/2026
(GJHC240200492025)
13.2 Since this Court has restored the Special Civil Suit
No.6 of 2022 to its original file, the petitioners are hereby
directed to submit their affidavit in lieu of examination-in-
chief on or before 30.11.2026, without fail.
13.3 The petitioners are also further directed to extend
their full cooperation and support to the Trial Court and no
unnecessary adjournment will be sought by them. Likewise,
the respondents shall also be permitted to cross-examine the
petitioners and their witnesses, if any. All the parties to the
proceedings shall see to it that the Trial Court shall hear the
suit proceedings as early as possible.
14. In view of the foregoing conclusions, the present petition
is allowed. Rule is made absolute, to the aforesaid extent.
(MAULIK J. SHELAT, J)
GAURAV J THAKER
Page 8 of 8
Uploaded by GAURAV J THAKER(HC00951) on Wed Oct 28 2026 Downloaded on : Wed Oct 28 12:05:11 IST 2026