JYOTINDRABHAI MOHANBHAI MODI Vs. RAJESH @ RAJUBHAI MOHANLAL MODI

JUDGEMENT

(1.) Heard learned advocate Mr.Dhaval D.Vyas for the petitioners - original defendant Nos.4 and 5 and learned senior advocate Mr.R.R.Marshal with learned advocate Mr.Arpit A.Kapadia for respondent No.5 - original defendant No.1. It is pertinent to note that respondent No.5 - original defendant No.1 has filed caveat and accordingly, learned senior advocate is present before this Court on his behalf. Learned senior advocate has declared that parties of the partition suit i.e. Special Civil Suit No.218 of 2005 are as such family members of one family in which respondent No.5 is the head of the family. So far as this petition is concerned, the dispute involved related to Exh.252 is between the petitioners and respondent No.1 and as such respondent Nos.1 to 4 - original plaintiff Nos.1 to 4 have no objection if Exh.252 should be allowed and as such, the same has been allowed by the Court concerned and the petitioners are challenging the said order dated 20.4.2013 passed below Exh.252 by the court of Additional Senior Civil Judge, Surat by preferring the present Special Civil Application. In the above circumstances, this Court has heard the above referred advocates for the petitioners and respondent No.5.

(2.) Exh.252 is the application dated 21.3.2013 filed by the respondent No.5 - original defendant No.1 under Order XVIII, Rule 16 of the Code of Civil Procedure, 1908 (for short "the Code") and has sought relief to record his evidence urgently mainly on the ground of age factor, he being 88 years old and more particularly as narrated in the said application. The respondent Nos.1 to 4 - original plaintiff Nos.1 to 4 have filed the suit for declaration of 1/4th share in the property mentioned in the said suit along with consequential relief with respect to the suit property. It is the case of the petitioners - original defendant Nos.4 and 5 that the properties mentioned in the suit are self acquired properties. It is not in dispute that hearing of the injunction application is pending and the same was to be taken up for disposal.

(3.) Learned advocate for the petitioners has submitted that to delay the hearing of Exh.5 in Special Civil Suit No.218 of 2005, novel and ingenuine method has been adopted by the respondent No.5 - original defendant No.1 acting in support of the plaintiffs and submitted the application at Exh.252 under Order XVIII, Rule 16 of the Code stating that he has attained the age of 88 years and with his vision for life, there is urgency for having his evidence recorded. He has then submitted that as such no ailment is stated in the application at Exh.252 and there has been no medical history of the major ailment in the past eight years i.e. after filing of Special Civil Suit No.218 of 2005. The consequence of the impugned order would definitely delay the hearing of Exh.5 injunction application. Lastly, learned advocate for the petitioners has submitted that except mentioning the age of 88 years, no evidence is placed on record for the Court consideration to show that the health of respondent No.5 - defendant No.1 was in such bad shape which requires immediate order under Order XVIII, Rule 16 of the Code, more particularly, when the issues are yet not framed and as such hearing of Exh.5 is pending. He has put reliance on the latest decision dated 29.1.2013 of the Apex Court in the case of Laxmibai (Dead) Thru Lr'S. & Anr Vs Bhagwanthbuva (Dead) Thru Lr'S. Relevant portion of paragraph 28 on which learned advocate for the petitioners has put reliance reads as under.