IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2600 of 2025 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2025 In R/FIRST APPEAL NO. 2600 of 2025 ================================================================

LHRS OF DEDC. BADRIPRASAD PUNAMCHAND AGRAWAL & ORS.

Versus MIR ANWARBHAI DAUDBHAI & ORS.

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Appearance:

MR CJ VIN(978) for the Appellant(s) No.

1,1.1,1.1.1,1.1.2,1.1.3,1.1.4,1.2,1.3,2,2.1,2.2,2.3,3,3.1,3.2,3.3,3.4,3.5,3.6,4 MR ANKIT Y BACHANI(5424) for the Defendant(s) No. 1 MR DHRUV B GOSWAMI(10215) for the Defendant(s) No. 4,5,6 MR NEEL V SOLANKI(10278) for the Defendant(s) No. 4,5,6 NOTICE SERVED for the Defendant(s) No. 10,11,12,13,14,2.1,2.2,2.3,8,9 VIRAL K SHAH(5210) for the Defendant(s) No. 3 ===============================================================

CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE and HONOURABLE MR.JUSTICE J. L. ODEDRA Date : 16/12/2025

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

ORDER IN APPEAL:-

Appeal is admitted ORDER IN CIVIL APPLICATION

1. The appeal is preferred against the judgment and order dated 29.04.2025 passed by Principal Senior Civil Judge, Deesa in Special Civil Suit No.9 of 2021. By the impugned judgment and order, following directions are issued:

“1. In the present matter, considering the application of the defendant at Exhibit-63 and taking into account the judgment reported in AIR 2004 SC 2093, in the case of Shipping Corporation of India v. Machado Brothers and Others, dated 25/03/2004, the plaint of the present suit is ordered to be rejected under Section 151 of the Code of Civil Procedure.

2. In the present matter, the injunction order earlier granted below Exhibit-5 is hereby ordered to be vacated by this order.

3. In the present matter, it is ordered that the costs incurred by the parties shall be borne by each party respectively.”

2. Civil Application is filed for staying the implementation, execution and enforcement of order dated 29.04.2025 passed by Principal Senior Civil Judge, Deesa in Special Civil Suit No.9 of 2021 and also for restraining the Revenue Authorities from making any mutations in revenue records in connection with the Suit Property bearing revenue survey No.221A/Paiki admeasuring 17 Hectare 64 Are and 44 Sq.Mtrs and land bearing revenue survey No.225 paiki admeasuring 1 Hectare 3.4 Are and 94 Sq.Mtrs, totally admeasuring 21 Hectares 5 Are and 38 Sq. Mtrs of old tenure situated in village Rajpur, Taluka: Deesa, District: Banaskantha.

3. It is the case that High Court had authoritatively observed in its order dated 22.02.2024 that the will was orchestrated because of the affidavits filed by witnesses to the will. Even the son of the testator had filed an affidavit opposing the application for probate of the will and had produced photocopy of the passport to demonstrate that the testator of the will had moved out of India in 1994 and had never come to India till she breathed her last breath on 05.06.2013 in the USA. Hence, there was no question of her making any will by which the present opponent No. 1 claimed to be the owner of the impugned property. This order of this High Court was never challenged by the Opponent No. 1.

3.1 Opponent No. 1-Mir Anwarbhai Daudbhai (original defendant) tendered an application praying for rejection of the plaint invoking Order 7 Rule 11 of the Civil Procedure Code, 1908. The Learned Trial Court Judge did not render its verdict on Order 7 Rule 11 of the CPC but proceeded to allow the application exercising powers under section 151 and held that the suit had become infructuous. No subsequent event which had affected the suit rendering it infructuous or had any impact on the suit was cited. No application for disposal of the suit as having become infructuous was tendered by any party to the proceedings. The Learned Trial Court Judge misinterpreted the judgment of Hon'ble Supreme Court of India delivered in the case of Shipping Corporation of India Ltd. v. Machado