PARASIYA HANSRAJ BHANJI ONE OF THE LH OF LATE BHANJI RAMJI PARASIYAversusPARASIYA VRAJLAL BHANJI ONE OF THE LH OF LATE BHANJI RAMJI

     C/FA/1692/2024                              JUDGMENT DATED: 20/07/2026




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1692 of 2024
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
                                    In
                      R/FIRST APPEAL NO. 1692 of 2024

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ILESH J. VORA

and
HONOURABLE MR. JUSTICE R. T. VACHHANI

==========================================================

           Approved for Reporting                Yes          No

==========================================================
PARASIYA HANSRAJ BHANJI ONE OF THE LH OF LATE BHANJI RAMJI
                         PARASIYA
                           Versus
PARASIYA VRAJLAL BHANJI ONE OF THE LH OF LATE BHANJI RAMJI &
                           ORS.
==========================================================
Appearance:
MR.D K.PUJ(3836) for the Appellant(s) No. 1
DECEASED LITIGANT for the Defendant(s) No. 2
MR ADITYA S PATEL(12087) for the Defendant(s) No. 1,2.1,2.2,2.3,3
NOTICE SERVED BY DS for the Defendant(s) No. 4
==========================================================

 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
       and
       HONOURABLE MR. JUSTICE R. T. VACHHANI

                             Date : 20/07/2026

                          ORAL JUDGMENT
             (PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1.     By way of this appeal, the appellant – original defendant No.1
challenges the order dated 08/01/2024 passed below Exh.33 in Regular
Civil Suit No.82 of 2020 by the learned Principal Senior Civil Judge,

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Nakhatrana whereby the learned Judge of the trial Court has allowed the
application filed by the plaintiff below Exhibit-33 seeking striking out of
the pleadings of the counter claim for want of territorial jurisdiction, as
well as, simultaneously disposed of the application Exhibit-24 filed by
the defendant seeking interim injunction in respect of the properties
claimed in the counter claim and allowed the application filed by the
plaintiff below Exhibit-52 under O.7 R.11(d) of the CPC seeking
rejection of the counter claim and the injunction filed by the appellant.


2.      The facts of the case in brief are that appellant and the respondents
are the common heirs and sons of late Shri Bhanji Ramji Parasiya; where
as the respondents No.2.1 to 2.3 are the legal heirs of late Shri Vasantbhai
Bhanji who are also the brother and son of late Shri Bhanji Ramji
Parasiya. Respondent No.3 is the daughter of late Shri Bhanji Ramji and
sister of the appellant as respondent No.1 and 2.


2.1     Regular Civil Suit No.82 of 2020 came to be instituted in the Court
of learned Principal Senior Civil Judge, Nakhatrana by the respondent
No.1 seeking declaration and permanent injunction in respect of
agricultural land, NA Plots and residential houses and also claiming for
his 25% share in the property left by Shri Bhanji Ramji Parasiya on
partition by meets and bounds; on the ground of the ancestral undivided
properties situated at Village Nana Angiya, Tal. Nakhatrana bearing
Revenue Survey No.36 ad-measuring about 10,421 square meters,
Revenue Survey No.53/2 admeasuring about 304 square meters, Revenue
Survey No.54/1 admeasuring about 11, 129 Sq Mtrs as well as the land
bearing Survey No. 76 Paiki NA Plot No. 89 and Revenue Survey No.


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391/3 Paiki, NA Plot on which Arihant Traders Pole Factory is situated
and also the land on the southern side of the Plot. The relief is claimed in
respect of the residential property House No. 1/85 and House No. 1/85 (1)
duly registered in the name of the grandfather of the Appellant as well as
the Respondent No.1 in the Register maintained by the Office of the
Anghiya Nana Group Village Panchayat.


2.2     On being served with the process, the appellant moved an
Application below Exhibit-23 under Order 8 Rule 6A of the CPC raising
counter claim, as also application Exhibit-24 for interim injunction in
respect of the properties claimed in counter claim. It is claimed by the
appellant in the counter claim that the market value of Ambika Show Mill
as well as the Buildings thereof, situated at Village Vishnupar Bankura is
about Rs. 1,40,00,000/-and the balance in the Bank Account as well as
value of other properties is about Rs. 20 lacs. Thus, in the total value of
the properties as well as the bank balance is about Rs.1,60,00,000/- and
the share of the appellant therein is about 20% and 20% share is the
Appellant's mother and she has made the will on 07.09.2010 bequeathing
her share in favour of the appellant which was duly registered with Sub
Registrar Nakhatrana and therefore the appellant is having in all 40%
Share and the Respondent No. 1, 2 and 3 are having remaining 60% share
in the above properties. It is therefore claimed by the appellant that the
appellant should be given 40% share in the properties lying with
Respondent No.1. It is further claimed by the appellant that his share in
16 flats, the value of which is about 4 crores situated at Village
Amarnath, Taluka Badlapur, District Thana, wherein, the share of the
appellant as well as his mother are 20% each and the mother's Share of


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20% is bequeathed to the appellant by virtue of the Will dated
07.09.2010. The Appellant has therefore, claimed an Amount of
Rs.1,60,00,000/- being 40% shares in the above 16 flats.


2.3     On filing of the counter claim by the appellant, respondent No.1
moved an application below Exhibit-52 under Order 7 Rule 11(d) of the
CPC, seeking the rejection of the counter claim and an injunction filed by
the appellant stating and contending that as per provisions of Section 16
of the CPC which provides that the suit for partition for immovable
property is to be filed before the Court which has the jurisdiction over the
property. However, there is an Explanation to Section 16 which is not
applicable as the property in question and the relief claimed by the
appellant herein is situated outside the territorial jurisdiction of the Court.


2.4     Respondent Nos. 2.1 to 2.3 had also filed an application below
Exhibit-33 under Order. 6 Rule 16 of the CPC for striking out pleadings
of counter claim for want of territorial jurisdiction and want of cause of
action. Respondent Nos. 2.1 to 2.3 raised the very same issue of territorial
jurisdiction as raised by the Respondent No.1 in his application filed
under Order 7 Rule 11 of the Code of Civil Procedure.


2.5     The learned Judge of the trial Court after hearing the parties and
considering the pleadings had passed the impugned order on 08.01.2024,
whereby, under the head of Order Below Exhibit 33 in RCS no.82 of
2020 allowed the application Exhibit-33 filed by the Respondent Nos. 2.1
to 2.3 and thereby, the pleadings of counter claim of the appellant were
ordered to be struck off in its entirety and simultaneously disposed of the


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      C/FA/1692/2024                               JUDGMENT DATED: 20/07/2026




application at Exhibit-24 seeking interim relief while raising counter
claim by the appellant and allowing the application Exhibit-52 filed by
the Respondent No.1 for rejection of Counter Claim under Order 7 Rule
11 of the Code of Civil Procedure.


3.      Heard learned Advocate Mr.D K Puj appearing for the appellant
and learned Advocate Mr.Aditya Patel, appearing for the respondents.


4.      Learned Advocate for the appellant Mr.D K Puj while referring to
provisions of Section 16 and 17 of the CPC would submit that both the
provisions are the part of one statutory scheme. He would submit that
Section 16 contains general principle where the suits are to be instituted
where the subject matter is situate. Section 16(3) mentions “for the
partition of immovable property”. Whereas, Section 17 engrafts an
exception to the general rule as occurring in Section 16 and thus as per
Section 17 of the CPC, suit may be instituted in any court within the local
limits whose jurisdiction any portion of the property is situated. It is
therefore submitted that the words “any portion of the property” are
indicative of a fact situation where immovable property is a big chunk of
land, falls into territorial jurisdiction of two courts in which fact situation
in court in whose jurisdiction any portion of property is situated can
entertain the suit.


4.1     It is further sought to be contended that the learned Judge of the
trial court while considering the application filed below Exhibit-33 which
pertains to striking out of the pleadings of the counter claim filed by the
appellant under O.6 R.16 of the CPC has disposed of the application filed


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      C/FA/1692/2024                                 JUDGMENT DATED: 20/07/2026




below Exhibit-24 by the appellant and thereby without affording any
opportunity of hearing to the appellant has allowed the application filed
by the respondent below Exhibit-52 seeking rejection of the counter
claim. It is therefore submitted that the impugned order suffers with
perversity and illegality and against the settled provisions of law that two
different set of applications cannot be decided together by giving
commons reasons as the cause for filing the applications are different.


4.2     In support of his submissions, learned Advocate for the appellant
has relied upon the following case law.
             1. Shivnarayan (Dead) by Legal Representatives vs. Maniklal
                 (Dead) through Legal Representatives & Ors., [(2020) 11
                 SCC 629].
             2. Innovative Engineers vs. Jay Formulations Limited [2021
                 (3) GLR 2170].
             3. Bishamber Dayal vs. Ram Pershad [1980 SCC OnLine Del
                 214].
             4. Ritu Sharma & Anr., vs. Shri Sandeep Sharma & Ors.,
                 [2011 SCC OnLine Del 3645].
             5. Subhash      Chandrakant         Mashruwala        vs.     Suresh
                 Chandrakant Mashruwala & Ors., [1994 (2) GLH 177].


4.3     By making the above submissions, learned Advocate for the
appellant would submit to allow the present appeal and to quash and set
aside the impugned order.


5.      Per contra, learned Advocate Mr.Aditya S Patel appearing for the


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      C/FA/1692/2024                              JUDGMENT DATED: 20/07/2026




respondents while supporting the impugned order has submitted that
admittedly the suit having been filed by the respondent herein is in
respect of the shares in the ancestral property. However, the counter
claim lodged by the appellant herein pertains to the property situated
outside the territorial jurisdiction of the Court and the counter-claim, if
any, filed which pertains to the property or relief claimed by the plaintiff
which in fact in the case on hand seems to be lacking as the appellant
herein has come-forward with the different property so as to add the same
in the suit property and thereby claimed the respective shares and
therefore the respondents have been constrained to move an application at
Exhibit-33 seeking striking down of the pleadings as enumerated in the
counter claim which has rightly been allowed and consequent thereupon
the application moved by the appellant herein at Exhibit-24 seeking
injunction in the counter claim came to be disposed of and application at
Exhibit-52 moved by the respondents herein has rightly been allowed
seeking rejection of the counter claim.


5.1     Learned Advocate for the respondents would further submit that
even if the counter claim is not maintainable as per the provisions of O.7
R.11 (d) of the CPC, the same is to be returned to be filed before the
competent Civil Court as per provisions of Section 17(6) of the CPC.
Thus, in the suit filed by the respondent, there was no claim of counter
claim of the appellant regarding the property mentioned in the counter
claim and appellant is barred to raise any counter claim as such the
defendant has to file two separate suits for partition of the property
mentioned in the counter claim before the appropriate Court.

5.2     In support of his submissions, learned Advocate for the respondent


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      C/FA/1692/2024                               JUDGMENT DATED: 20/07/2026




has relied upon the following case law.
        1.       Satyender & Ors., vs. Saroj & Ors., 2022 LiveLaw (SC)
                 679.
        2.       Jagannath Reddy S/O Shivareddy VS. Jagamma @
                 Jagadevamma rendered in Writ Petition No.200018 of
                 2023.


5.3     By making the above submissions, learned Advocate for the
respondent would submit to dismiss the present appeal.


6.      Before we examine the impugned order and to proceed further with
the merits of the matter, at this stage, it would be apt to refer to provisions
of Section 16 and 17 of the Code of Civil Procedure.


        “16. Suits to be instituted where subject- matter situate.--Subject
        to the pecuniary or other limitations prescribed by any law, suits-

        (a) for the recovery of immovable property with or without rent or
        profits,

        (b) for the partition of immovable property,

        (c) for foreclosure, sale or redemption in the case of a mortgage of
        or charge upon immovable property,
        (d) for the determination of any other right to or interest in
        immovable property,
        (e) for compensation for wrong to immovable property,
        (f) for the recovery of movable property actually under distraint or
        attachment, shall be instituted in the Court within the local limits
        of whose jurisdiction the property is situate:
        Provided that a suit to obtain relief respecting, or compensation
        for wrong to, immovable property held by or on behalf of the


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     C/FA/1692/2024                                  JUDGMENT DATED: 20/07/2026




       defendant, may where the relief sought can be entirely obtained
       through his personal obedience, be instituted either in the Court
       within the local limits of whose jurisdiction the property is situate,
       or in the Court within the local limits of whose jurisdiction the
       defendant actually and voluntarily resides, or carries on business,
       or personally works for gain.

       Explanation.– In this section “property” means property situate in
       India.

       “17. Suits for immovable property situate within jurisdiction of
       different Courts.-- Where a suit is to obtain relief respecting, or
       compensation for wrong to, immovable property situate within the
       jurisdiction of different Court, the suit may be instituted in any
       Court within the local limits of whose jurisdiction any portion of
       the property is situate:

              Provided that, in respect of the value of the subject matter of
       the suit, the entire claim is cognizable by such Court.”

       Thus, what appears from the plain reading of the above two
provisions that Section 16 provides that suit shall be instituted in the
Court within the local limits of whose jurisdiction the property is situated.
Section 16(b) mentions “for the partition of immovable property”.
Likewise, Section 17 provides for suits for immovable property situated
within jurisdiction of different Courts and the suit may be instituted in
any Court within the local limits of whose jurisdiction any portion of the
property is situated. Of course, the meaning of the word “any portion of
the property may be a fact situation where immovable property is a big
chunk of land, which falls into territorial jurisdiction of two courts in
which fact situation in Court in whose jurisdiction any portion of property
is situated can entertain the suit.


7.     Now, coming to the order in question passed by the learned Judge


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of the trial Court and having heard the learned Advocates appearing for
the respective parties, this Court finds that admittedly the parties are
litigating for their respective shares in the ancestral property of late Shri
Bhanji Ramji Parasiya; but the fact remains that the properties situated
are within the local limits of the different Courts. However, without much
delving on the other aspects and entered into the merits of the case and
considering the fact that while deciding the application at Exhibit-33, the
learned Judge of the trial Court has not considered the application filed
below Exhibit-23 under O.8 R.6 of the CPC for partition of properties
situated outside the territorial jurisdiction of the trial Court.


8.     Whereas the learned Judge of the trial Court has disposed of the
application seeking interim injunction in the counter claim filed at
Exhibit-24 by the appellant herein and further allowed the application
filed below Exhibit–52 by the respondents herein under the head of
deciding the application filed below Exhibit-33 that too without giving
any reasons and affording any opportunity of hearing for deciding two
other application filed below Exhibit-24 and Exhibit-52.


9.     It is also borne out from the record that the learned Judge of the
trial Court seems to have discussed and accorded the reasons to decide
application filed below Exhibit- 33; whereas the application filed below
Exhibit-24 came to be disposed of and application filed below Exhibit-52
came to be allowed; without according any opportunity of hearing to the
affected parties and therefore, the order passed by the learned Judge of
the trial Court is perverse and bad in law. When the three different
applications were filed under the different provisions of law, then under


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the head of one application; the entire three applications cannot be
decided and that too in absence of any opportunity of being heard and
without giving any reasons for deciding such applications.


10.     It would be relevant to note that the learned Judge of the trial Court
has decided the two different set of applications simultaneously one
preferred under O.7 R.11(d) of the CPC seeking rejection of the counter
claim filed by the respondent and the other one is application seeking
interim injunction in the counter claim preferred under O.8 R.6 of the
CPC preferred by the appellant.


11.     At this juncture, a beneficial reference can be made to the decision
of this Court in case of Inox India Private Limited Versus Cryogas
Equipment Private Limited & Ors. [2024: Gujhc: 15592-DB] where in
paragraph No.19 it has been observed thus:


        “19. Secondly, the learned Judge presiding the Commercial Court
        has committed an error of law by deciding both the applications
        under Order VII Rule 11, CPC and Order XXXIX Rule (1) & (2)
        CPC, for rejection of plaint and interim injunction (Exh. 48 and
        Exh. 5; respectively), by a common judgment while noticing the
        arguments of the defendants, their defence for the claim of
        rejection alongwith the claim of rejection of the suit at its
        threshold. Though in the concluding part of the judgment, the
        defense of the defendants or the evidence of the parties have not
        been discussed, but the construction of the judgment itself is
        contrary to the settled principle of law for invoking Order VII Rule
        11(d), CPC. For the purpose, the relevant are the averments made
        in the plaint and there cannot be any addition or subtraction. The
        broad principle is that the Court at the stage of Order VII Rule 11
        CPC would not consider any evidence or enter into any disputed
        questions of facts or law. The issues on the merits of the matter
        which may arise between the parties would not be within the realm

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        of the Court at that stage. All the issues shall not be the subject
        matter of an Order under the said provisions (Reference Kamla &
        Ors. (supra).”


12.     The very object of Order VII Rule 11 CPC is to ascertain, at the
threshold, whether the plaint is liable to be rejected solely on the basis of
the averments made in the plaint, without entering into disputed facts or
evaluating evidence. Whereas, on the other hand, application for an
interim injunction, requires consideration of the existence of a prima facie
case, which inevitably involves an examination of the evidence placed
before the trial Court. Therefore, both applications operate in distinct
legal aspects and ought not to have been decided by a common order. The
Trial Court, by simultaneously adjudicating both applications, adopted a
legally impermissible course and thereby committed an error apparent on
the face of the record.



13.     In light of the above observations, the learned Judge of the trial
Court has committed an error of law in deciding two different
applications as referred herein above and that too without affording any
opportunity of hearing to the parties and therefore this is a fit case to
remit back the matter to the learned Judge of the trial Court for deciding
the case afresh on its own merits.



14.     Hence, in view of the detailed discussions made herein above, the
reliance placed upon by the learned Advocates appearing for the
respective parties in several decisions as enumerated in the foregoing
paragraphs, the same is not required to be dealt with and discussed at this


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      C/FA/1692/2024                                                             JUDGMENT DATED: 20/07/2026




juncture, as that may prejudice the rights of the parties and contentions
that may be raised before the learend Court concerned.



15.       Accordingly, we remit back the matter for hearing of the three
different applications afresh by the learned Judge of the trial Court.
Consequently, the order dated 08/01/2024 passed below Exh.24, 33 and
Exh.52 in Regular Civil Suit No.82 of 2020 by the learned Principal
Senior Civil Judge, Nakhatrana is quashed and set aside. Consequently,
the application for interim relief shall stand disposed of.



16.       The learned Judge of the trial Court concerned shall hear and
decide the three applications afresh and shall pass different order in light
of the discussions and observations made herein above.



17.       The learned Judge of the trial Court shall decide the application/s
without being prejudice to the rights and contentions of the parties and in
accordance with the law and on its own merits.

                                                                                            (ILESH J. VORA,J)



                                                                                          (R. T. VACHHANI, J)
sompura


Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: MANISHKUMAR JYOTINDRA SOMPURA(HC00189), Principal Pvt. Secretary, at High Court of Gujarat on 20/07/2026 14:24:30




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