NEUTRAL CITATION
C/SCA/6148/2023 CAV JUDGMENT DATED: 03/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6148 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== DHAVAL ENTERPRISE Versus GOPAL INDUSTRIES ========================================================== Appearance:
MR DHAVAL D VYAS(3225) for the Petitioner(s) No. 1 MR ARJUNSINGH B CHAUHAN(11510) for the Respondent(s) No. 1,2 ========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE DEVAN M. DESAI Date : 03/11/2023 CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI) Page 1 of 10 Downloaded on : Mon Nov 06 20:39:21 IST 2023 NEUTRAL CITATION C/SCA/6148/2023 CAV JUDGMENT DATED: 03/11/2023 undefined By invoking Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:-
"8(a) YOUR LORDSHIPS may be pleased to issued an appropriate writ, order or direction by quashing and setting aside the order dated 16.02.2023 passed below Exh.48 in Commercial Suit No.264 of 2022 by the 6th Additional Senior Civil Judge, Surat (Annexure-A);
(b) Pending the hearing and disposal of the petition, the Hon'ble Court be please to stay further proceedings of Commercial Suit No.264 of 2022 pending before 6th Additional Senior Civil Judge, Surat;
(c) Any other and further relief/s that may be deem, just and proper may kindly granted in the interest of justice.'
2. The prayer in Exhibit 48 application by the petitioner - plaintiff was to issue witness summons to Income Tax Department, Income Tax Office, Majura Gate, Surat and Goods and Services Tax Office, GST Office, Near Navdi Ovara, Nanpara Surat to produce documents and to give evidence.
2.1 Heard learned advocate Mr.Dhaval D. Vyas for the petitioner and learned advocate Mr.Arjunsingh B. Chauhan for the respondents.
3. Rule. Learned advocate Mr.A.B.Chauhan waives service of notice of rule for and on behalf of respondents. Page 2 of 10 Downloaded on : Mon Nov 06 20:39:21 IST 2023
NEUTRAL CITATION C/SCA/6148/2023 CAV JUDGMENT DATED: 03/11/2023 undefined
4. The brief facts leading to this petition are as under:- 4.1 The petitioner has filed Recovery Suit against the respondents for the goods supplied to the respondents on various dates. The case of the petitioner is that, the petitioner is engaged in the business of manufacturing and selling of chemicals, whereby the respondent was supplied with the chemicals as per the order of respondent. The business transactions were going on since many years. The petitioner used to issue bill/challan to the respondent, as and when, the goods were sold and delivered. The petitioner filed a Commercial Suit No.264 of 2022 for the recovery of Rs.10,45,613/- for the goods sold and delivered between 03.05.2018 to 24.05.2018. Pursuant to the above transactions, the respondents issued cheque, which was dishonoured with the endorsement 'insufficient funds'. Thereafter, the petitioner filed a criminal case under Section 138 of the Negotiable Instruments Act before the Chief Judicial Magistrate, Surat bearing Criminal Case No.4676 of 2018. 4.2 In the said suit, the respondents appeared and filed written statement. The Affidavit in lieu of Examination-in-chief under Order XVIII Rule 4 of the Civil Procedure Code, was submitted by the petitioner.
4.3 As per the say of the petitioner, petitioner produced bills and the statement of Bank Account for the year 2018-19 to 2020-22. The Page 3 of 10 Downloaded on : Mon Nov 06 20:39:21 IST 2023 NEUTRAL CITATION C/SCA/6148/2023 CAV JUDGMENT DATED: 03/11/2023 undefined grievance of the respondent is that, he has not received goods and also denied the receipt of the goods as per the order. The cross-examination of the petitioner is completed on 04.01.2023. Thereafter, petitioner moved an application Exhibit 48, wherein the petitioner sought witness summons to be issued to the Office of Income Tax Department, Surat and GST Office, for the production and giving evidence for the documents mentioned in the application.
5. Learned advocate for the petitioner has submitted that since the respondents have denied the receipt of the goods to nullify the said contention of the respondent, income tax returns of the defendant for the year 2017-18 and 2018-19, are necessary and vital documents. Further, it is the say of the learned advocate for the petitioner that, under the Goods and Services Tax Act, when the goods are purchased by the respondents, respondents claimed rebate under the Goods and Services Tax Act and that can be ascertained from the details of GST rebate availed by the respondents. Thus, these are the documents, which are necessary to prove the case of the petitioner and for that purpose the witnesses prayed for are required to be examined. The submission made by the learned advocate for the petitioner that the stage of further leading the evidence of the petitioner is yet not closed so the petitioner has an ample opportunity to Page 4 of 10 Downloaded on : Mon Nov 06 20:39:21 IST 2023 NEUTRAL CITATION C/SCA/6148/2023 CAV JUDGMENT DATED: 03/11/2023 undefined prove his case before the learned trial court.
6. According to the submissions of learned advocate for the petitioner, the documents sought to be produced by the witness, are very vital and important piece of evidences in discharging the burden of proving the case of the petitioner.
7. Learned advocate for the respondents while objecting to the petition submitted that, the documents sought to be produced by the witness of Income Tax Department and GST Department, are the documents of respondents and the petitioner has to prove its case on its own merits. While referring the cross-examination of the petitioner, learned advocate for the respondent has submitted that, in the cross- examination, the petitioner has admitted that they have not produced any chalan with regard to delivery of goods. It is also an admitted fact that, the income tax returns of the petitioner has also not been produced. This is an attempt to fill up lacuna on the part of the petitioner and such lacuna could not be filled up by calling upon the witness from Income Tax Department and Goods and Services Department.
8. The controversy is in a narrow compass what is under consideration for this court is whether a witness can be called upon to Page 5 of 10 Downloaded on : Mon Nov 06 20:39:21 IST 2023 NEUTRAL CITATION C/SCA/6148/2023 CAV JUDGMENT DATED: 03/11/2023 undefined produce the documents to give deposition for the petitioner to fill up the lacuna. It is very well known principle that the party has to succeed on its own strength and not on the weakness of the other side. Applying this principle, in the present case, burden of proving the suit transaction and the amount due to the petitioner will remain on the petitioner till the petitioner discharges.
9. At this stage, Section 101 of the Indian Evidence Act, 1872, is worth considering. Section 101 of the Indian Evidence Act, 1972 reads as under:-
101. Burden of proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
10. The said section defines burden of proof. The burden of proof lies on party who substantially asserts the affirmative averments. A party is bound to prove existence of any fact and the burden cannot be shifted. The burden of proof and the onus of proof are having distinct meaning in the law of evidence. Burden of proof lies upon a person who has to prove the fact and which never shifts whereas the onus of proof Page 6 of 10 Downloaded on : Mon Nov 06 20:39:21 IST 2023 NEUTRAL CITATION C/SCA/6148/2023 CAV JUDGMENT DATED: 03/11/2023 undefined shifts. Such a shifting is a continuous process in the evaluation of evidence. The initial burden of proving a prima facie case is cast upon the plaintiff. The onus shift on the defendant to adduce rebating evidence to meet the case made out by the plaintiff.
11. Applying this principle, in the present case, the plaintiff has positively averred in the plaint that the material was sold and supplied to the respondents and in the defence, the respondents have denied the transactions. Thus, the burden of proof of proving the transactions is in the plaintiff and it can be presumed that the plaintiff was in complete knowledge about the controversy and was also in knowledge about the fact that the petitioner has to prove the transactions. At this juncture, it will not be out of place to refer the provisions contained Order XVI Rule 1 of the Civil Procedure Code, which is reproduced hereinunder:-
"1. List of witnesses and summons to witnesses-
(1) on or before such date as the Court may appoint, and nor later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.
(2) x x x x xx (3) xx xx xx (4) xx xx xx Page 7 of 10 Downloaded on : Mon Nov 06 20:39:21 IST 2023 NEUTRAL CITATION C/SCA/6148/2023 CAV JUDGMENT DATED: 03/11/2023 undefined
12. The aforesaid Rule stipulates that the list of witnesses whom the party proposed to call either to give evidence or to produce documents has to submit list of witnesses and summons to witnesses, not later than 15 days after the date on which the issues are settled. This provision is made for the purpose that all the parties know as to whom one party propose to examine as a witness. The word "shall" used in Order XVI Rule 1 be construed as mandatory. The trial courts are expected to observe the said provisions strictly. This court is of the view that, in each and every trial, the learned Judge to see that the provisions of Rule 16(1) are scrupulously complied with so as to save precious time of the court as well as litigants.
13. It may be stated, before proceeding further, that it has become a practice in the trial that witnesses are either called upon or applications for summoning witnesses are tendered, so as to keep the other side in dark, this practice has to be deprecated. It is a practice prevailing in the trial courts that witnesses are examined either by calling the witnesses or by invoking the provisions under the Code of Civil Procedure at the convenience and whims of the parties. The motive behind this is only to try fill-up the lacuna which may have been left Page 8 of 10 Downloaded on : Mon Nov 06 20:39:21 IST 2023 NEUTRAL CITATION C/SCA/6148/2023 CAV JUDGMENT DATED: 03/11/2023 undefined during the stage of leading either oral or documentary evidences.
14. In the case on hand, the learned trial court has observed that since the suit is for recovery of money for the goods sold and delivered, the petitioner will have an ample opportunity to cross-examine the respondents and can certainly disprove the contentions of the respondent. On scrutinizing the application Exhibition 48, the bone contention of the petitioner is that since the transactions is denied by the respondents, income tax returns of the respondents and the documents pertaining to GST rebate are vital documents.
15. In the present case on hand, though the plaintiff was in complete knowledge about the issues involved in the present case and did not submit list of witnesses as contemplated under the provisions of Order XVI Rule 1. This court is of the view that the prayers made in Exh.48 application by the petitioner are nothing but to fill-up the lacuna which are left over by the petitioner. The plaintiff cannot obviously take the advantage the witnesses of defence, the plaintiff is supposed to prove his case on his own strength.
16. In the totality of the facts and considering the controversy existing in the suit, by calling upon the witnesses to produce the Page 9 of 10 Downloaded on : Mon Nov 06 20:39:21 IST 2023 NEUTRAL CITATION C/SCA/6148/2023 CAV JUDGMENT DATED: 03/11/2023 undefined documents and to give evidence, is not permissible. The plaintiffs cannot rely upon the documents of defendants in proving its own case. Once, both the parties lead their respective evidences and only thereafter the evidentially value and the the factum of proving respective contentions can be arrived at by the trial court. Hence, the order passed by the learned 6th Additional Senior Civil Judge, Surat, is in consonance with the law, and in accordance with the principles of law. The order impugned does not require any interference.
17. The learned trial court may decide the controversy strictly on the basis of evidence lead by the parties and the learned trial court shall not be influenced by the observations made hereinabove.
18. With these observations, petition is dismissed.
(N.V.ANJARIA, J) (D. M. DESAI,J) MANOJ Page 10 of 10 Downloaded on : Mon Nov 06 20:39:21 IST 2023