HEMANTBHAI KARSHANDAS LEUVA Vs. BHARTIBEN RATILAL LEUVA

JUDGEMENT

(1.) THIS petition has been filed under Arts. 226 and 227 of the Constitution of India with a prayer to quash and set aside order dated 12-1-2009 passed by the learned Chamber Judge, City Civil Court, ahmedabad, below Exh. 17 in Civil Suit No. 871 of 2007.

(2.) BRIEFLY stated, the facts of the case, as emerging from the material on record are that, one Menaben Maganlal executed a registered Will on 26-7-1994. She then expired on 27-9-2005. The petitioner, who is the original-plaintiff, moved an application for obtaining probate under the Will by filing Miscellaneous application No. 548 of 2005, wherein the respondents were the opponents. In the said application for probate, the petitioner sought certain reliefs which could not have been prayed for and as the respondents (original opponents) objected to it by filing a reply, the Court converted the said miscellaneous application into a suit, which was registered as Civil Suit No. 871 of 2007, under Rule 201 of the Ahmedabad City Civil Court Rules, 1961 (hereinafter referred to as 'the Rules' ). The petitioner carried out an amendment in the pleadings and deleted certain reliefs, which were initially sought for. Subsequently, by filing an application Exh. 17, the petitioner prayed that the above-mentioned suit be re-converted into a Misc. Civil Application. After hearing the parties at length, the learned Chamber Judge, by impugned order dated 12-1-2009, rejected the application of the petitioner on the ground that there is no rule or provision in the Code of Civil Procedure, 1908, ('the Code' for short) empowering the court to convert the suit into a miscellaneous application, once the miscellaneous application has been converted into a suit.

(3.) MR. Hitesh N. Acharya, learned Counsel for the petitioner has submitted that :