GAUTAMBHAI VINUBHAI ASODARIYA vs NATHUBHAI DEVABHAI PATEL

C/SCA/16491/2026 JUDGMENT DATED: 03/11/2026
(GJHC240820572026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16491 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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GAUTAMBHAI VINUBHAI ASODARIYA
Versus
NATHUBHAI DEVABHAI PATEL & ORS.
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Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT

Date : 03/11/2026
JUDGMENT
1. At the outset, Mr.Manan Shah, learned advocate would
state that he has received instructions to appear on behalf of
respondent No.1 – original owner. Mr.Shah, learned advocate
is permitted to file his Vakalatnama in the Registry. The
Registry shall accept his Vakalatnama for the respondent
No.1.
2. Heard Mr.Jamshed Kavina, learned advocate for the
petitioner and Mr.Shah, learned advocate for respondent No.1
– original owner.
3. 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 a writ
of certiorari or a writ in the nature of
mandamus/certiorari or any other appropriate writ,
order direction quashing and setting aside impugned
order dated 16.10.2026 passed by the 8th Additional
CJM Sural below Exh.291 in Special Civil Suit No.499 of
2014 (ANNEXURE-L) and further be pleased to allow
application below Exh.291 in Special Civil Suit No.499
of 2014 (ANNEXURE-G), in the interest of justice;
(B) During the pendency and final disposal of the
present petition, YOUR LORDSHIPS may be pleased to
stay the implementation of the impugned order dated
16.10.2026 passed by the 8th Additional CJM Surat
below Exh.291 in Special Civil Suit No.499 of 2014
(ANNEXURE-L) pleased to sta and be further stay the
proceedings of Special Civil Suit No.499 of 2014
pending before the 8th Additional CJM Surat, in the
interest of justice;”
SUBMISSIONS OF THE PETITIONER :
4. Mr.Kavina, learned advocate for the petitioner would
submit that the impugned application filed below Exhibit 291
by the petitioner in his Special Civil Suit No.499 of 2014 with
an intention to declare before the trial Court that he is ready
and willing to discharge the obligation on the part of his
vendor, in whose favour the Agreement to Sell executed by the
respondent No.1 - original owner of the suit property. It is
submitted that the trial Court has erroneously rejected the
impugned application mainly on the ground that it was filed at
the stage of final hearing.
4.1 It is further submitted that no serious prejudice would
cause to the respondent No.1, if the impugned application
could have been allowed by the Court; rather, by allowing the
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petitioner to bring on record the financial documents showing
the current financial status of the petitioner, the trial Court in
more satisfactory manner can decide the lis between the
parties.
4.2 Mr. Kavina, learned advocate would further submit that
it is a settled position of law that the rule of procedure is the
handmaid of justice and no hyper-technical approach should
be taken by the trial Court while adjudicating such type of
application.
4.3 Mr. Kavina, learned advocate would further submit that
there is no delay on the part of the petitioner in submitting
the impugned application, as the vendor of the petitioner-
defendant No.2, did not come forward to lead his oral
evidence which was to be undertaken after the oral evidence
of the petitioner got over. It is submitted that the suit was
filed seeking specific performance of an Agreement to Sell
and to prove the readiness and willingness on the part of the
petitioner, he already deposed and submitted necessary
documents/evidence, but the anxiety of the petitioner is that
he is also ready and willing to discharge whatever the
obligation of his vendor (defendant No.2); to show his bona
fides, the impugned application was filed whereby he
requested the trial Court to allow him to submit the
documents on record.
4.4 In support of his submissions, Mr.Kavina, learned
advocate for the petitioner has placed reliance upon the
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following judgments:
(i) Sugandhi (Dead) By Lrs. vs. P. Rajkumar Rep.
By His Power Agent Imam Oli – 2020 (10) SCC
706.
(ii) Levaku Pedda Reddamma and others vs.
Gottumukkala Venkata Subbamma and another
– 2022 LiveLaw (SC) 533.
4.5 By making the above submissions, Mr.Kavina, learned
advocate would request the Court to entertain this petition.
SUBMISSIONS OF RESPONDENT NO.1 – ORIGINAL OWNER:
5. Per contra, Mr. Shah, learned advocate appearing for
respondent No.1 has vehemently opposed this petition
contending, inter alia, that just to delay the final adjudication
of the suit filed by the petitioner, time and again, the
petitioner filed unwarranted applications and as such, this
Court in the past did not entertain such attempts on the part
of the petitioner, as allowed the petitioner to withdraw his
respective petitions. It is submitted that undisputedly, the
impugned application below Exhibit 291 was filed by the
petitioner at the time of final arguments and just to fill the
lacuna left on the part of the petitioner, the impugned
application came to be filed, which was correctly rejected by
the trial Court.
5.1 Mr. Shah, learned advocate, would further submit that
the trial Court has considered the objections raised by
respondent No.1 and after giving proper and cogent reasons,
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rejected the impugned application. It is submitted that this
Court should not exercise its supervisory jurisdiction vested in
it under Article 227 of the Constitution of India, inasmuch as
there is no gross error of law committed by the trial Court
while rejecting the application.
5.2 Mr. Shah, learned advocate, would further submit that
despite the order of expediting the suit proceedings was
passed by this Court way back in the year 2024, due to
frivolous applications filed by the petitioner herein at regular
intervals, the trial Court is unable to finally adjudicate the lis
between the parties.
5.3 Making the above submissions, Mr.Shah, learned
advocate would urge this Court not to entertain this petition.
6. No other or further submissions have been advanced by
the learned advocates for the respective parties.
ANALYSIS :
7. Having heard learned counsel for the respective parties
and upon perusal of the impugned application and the order
passed thereon, as well as the previous orders passed by this
Court annexed with this petition, prima facie , it appears that
the impugned application was filed by the petitioner not only
at a belated stage, but at the stage where the trial Court is
finally hearing the suit proceedings. It has been specifically
recorded by the trial Court in its impugned order that despite
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granting an opportunity of hearing to the plaintiff on so many
occasions to conduct the final hearing, the petitioner did not
come forward, rather filed the impugned application. Such
conduct of the petitioner shows that the petitioner is more
interested to delay the adjudication of the suit which in fact
instituted by him.
8. So far as the impugned application is concerned, such
application cannot be entertained by the trial Court and was
correctly not entertained, inasmuch as the petitioner could
have submitted those documents in support of his case when he
entered into the witness box. It is not disputed by Mr.Kavina,
learned advocate for the petitioner during the course of his
submissions that at the relevant point of time, defendant No.2,
who happens to be the vendor of the petitioner, did not come
forward for oral evidence and thereafter, the petitioner
submitted his affidavit in lieu of examination-in-chief. If such
would be the case, prima facie , there is reason to believe that
the petitioner was well aware of the conduct on the part of his
vendor; but despite such fact, at the relevant point of time, the
petitioner did not show his readiness and willingness to
perform the obligation on the part of his vendor. There is no
reasonable explanation forthcoming from side of the petitioner
as to why after completion of trial, he filed the impugned
application.
9. If the impugned application will be entertained, it would
nothing but to allow the petitioner to lead further evidence on
such documents which amounts to a retrial of the suit and in
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such circumstances, it would surely cause serious prejudice to
the interest of respondent No.1 - original owner of the suit
property; rather, it amounting to fill up lacune remained in the
oral evidence of the petitioner.
10. It is true that the rule of procedure is the handmaid of
justice and the Court should not take a hyper-technical
approach, but at the same time, while considering such
application, it is also a duty upon the Court to see as to
whether any prejudice would cause to the other side if such
application will be allowed. According to me, the decision
cited by Mr.Kavina, learned advocate for the petitioner would
not be helpful and applicable to the case of the petitioner.
11. At this juncture, it would be appropriate to refer to and
rely upon the decision of this Court in the case of Ashish
Kantibhai Pithva vs. Minaxiben Devendrabhai Pithva
and others, being Special Civil Application Nos.9274 of
2026 with 9275 of 2026, dated 14.07.2026 , wherein it was
held as under:
“11. It is true that rule of procedure is handmaid of
justice and hyper-technical approach requires to be
avoided by this Court. It is also true that merely
because the suit reaches at the stage of final
arguments, it may not be a ground to reject the
impugned applications. At the same time, the conduct
of the litigant, who is coming before this Court, is also
required to be observed carefully by the Court as
ultimately suit is of the year 2010 and despite granted
a reasonable opportunities in favour of the defendant,
if he could not avail it, then at a later point in time, in
the absence of any justifiable reasons disclosed in the
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impugned applications, the defendant should not be
permitted to reopen his right to lead further evidence.
12. At this juncture, it would be apt to refer the
relevant observation of the Hon’ble Apex Court made
in the case of Bagai Construction (supra), wherein
it expressed concern that after amendment in several
provisions of CPC, the endeavor should be made by
the Court to expedite the adjudication of the suit
proceeding and unnecessary adjournments and
indulgence should not be afforded to the parties,
otherwise the object and purpose of the amendment
in the provisions of CPC get frustrated. The decision of
K.K.Velusamy (supra), was also taken note of in the
said decision. The relevant observations of Bagai
Construction (supra), read thus: -
“15. After change of various provisions by way of
amendment in CPC, it is desirable that the
recording of evidence should be continuous and
followed by arguments and decision thereon within
a reasonable time. This Court has repeatedly
held that courts should constantly endeavour
to follow such a time schedule. If the same is
not followed, the purpose of amending
several provisions in the Code would get
defeated. In fact, applications for
adjournments, reopening and recalling are
interim measures, could be as far as possible
avoided and only in compelling and
acceptable reasons, those applications are to
be considered. We are satisfied that the plaintiff
has filed those two applications before the trial
court in order to overcome the lacunae in the plaint,
pleadings and evidence. It is not the case of the
plaintiff that it was not given adequate opportunity.
In fact, the materials placed show that the plaintiff
has filed both the applications after more than
sufficient opportunity had been granted to it to
prove its case. During the entire trial, those
documents have remained in exclusive possession
of the plaintiff, still the plaintiff has not placed those
bills on record. It further shows that final arguments
were heard on a number of times and the judgment
was reserved and only thereafter, in order to
improve its case, the plaintiff came forward with
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such an application to avoid the final judgment
against it. Such course is not permissible even with
the aid of Section 151 CPC.”
(Emphasis supplied)
13. *
14. It is also well settled legal position of law that this
Court would sparingly exercise its powers under
Article 227 of the Constitution of India. Nonetheless, if
it be shown that impugned order was passed contrary
to settled principles of law and/or is perverse in any
manner, or any egregious error committed by the
Court below, this Court can surely interfere with the
impugned order, otherwise not. It is settled that
merely because some another view is possible than
the view taken by the Court below, this Court should
not interfere with such an order. (See:- (i) Sameer
Suresh Gupta Through PA Holder Vs. Rahul
Kumar Agarwal : 2023 (9) SCC 374, (ii) M/s
Garment Craft Vs. Prakash Chand Goel : 2022
(4) SCC 181) . At least, the petitioner-defendant No.5
is unable to show any perversity or any egregious
error committed by the Trial Court while passing the
impugned orders, then I am not at all impressed by
the submissions made on behalf of the petitioner.
According to me, this is not a fit case in which I should
exercise my Constitutional power under Article 227 of
the Constitution of India in favour of the petitioner-
defendant No.5.”
(Emphasis supplied)
12. Apart from the aforesaid, this Court has very well
noticed that in the past also, at regular intervals, the
petitioner came before this Court when his application was
not entertained by the trial Court and after arguing for some
time, instead of inviting any reasoned order, the petitioner
withdrew such petitions. This also shows that the petitioner is
more interested to delay the suit proceeding.
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13. Having considered the totality of the facts and
circumstances of the case and after going through the reasons
assigned by the trial Court, I am of the considered view that
the impugned order cannot be either said to be perverse or
grossly erroneous which requires any interference by this
Court while exercising its power under Article 227 of the
Constitution of India.
14. In view of the foregoing discussion and reasons, I do not
find any merit in this petition. Accordingly, it is dismissed. No
order as to costs.
(MAULIK J. SHELAT, J)
GAURAV J THAKER
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