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