NEUTRAL CITATION
C/SCA/19254/2023 ORDER DATED: 09/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19254 of 2023
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HEIRS OF DECD BADRIPRASAD PUNAMCHAND AGRAWAL
Versus
LH OF DECD RATILAL PARSHOTTAMDAS PATEL
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Appearance:
MR CJ VIN(978) for the Petitioner(s) No.
1,1.1,1.1.1,1.1.2,1.1.3,1.1.4,1.1.5,1.2,1.3,1.4,1.5,1.6,2,2.1,2.2,2.3,3,3.1,3.2,3.
3,3.4,3.5,3.6,4
for the Respondent(s) No. 1,10,11,1.1,12,1.2,13,1.3,14,15,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 09/11/2023
ORAL ORDER
1. Heard learned advocate Mr. C. J. Vin for the petitioners and learned advocate Mr. N. V. Gandhi for Respondents No.1.1 to 1.3.
2. At the outset, the learned advocate for the petitioner has submitted that vide Exhibit-925, an application seeking production of the certified copies of the proceedings of the High Court was filed. However, the said application was decided by the learned Trial Court by making an observation that exhibiting of the documents shall be considered after the final submissions of the suit which would be canvassed. Learned advocate for the petitioner has submitted that the documents, which were sought Page 1 of 6 Downloaded on : Fri Nov 10 20:58:49 IST 2023 NEUTRAL CITATION C/SCA/19254/2023 ORDER DATED: 09/11/2023 undefined to be produced, were only the certified copies of the proceedings of First Appeals No.2733 of 2019, 2580 of 2021 and 3685 of 2021. It is further submitted that by not exhibiting the documents at the time of deciding the application below Exhibit-925, an error has been committed by the learned Trial Court below. He has further submitted that if the documents are not exhibited at the proper stage and if the judgment is pronounced without considering the documents, the petitioners would suffer a great loss.
2.1 Learned advocate for the petitioners has placed reliance of the order dated 21.07.2023 passed by the coordinate Bench of this Court in R/First Appeal No.3685 of 2021 with Civil Application (For Stay) No.1 of 2021 in R/First Appeal No.3685 of 2021 and allied matters i.e. with R/First Appeal No.2580 of 2021 with Civil Application (for stay) No.1 of 2021 in R/First Appeal No.2580 of 2021 with Civil Application (For Production of Additional Evidences) in R/First Appeal No.2580 of 2021. Page 2 of 6 Downloaded on : Fri Nov 10 20:58:49 IST 2023
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3. Per contra, learned advocate Mr. Gandhi has made a submission pointing out the observations made in order dated 21.07.2023 passed by the coordinate Bench of this Court, which is placed on record at page 79 of the petition clause No. (v) of paragraph No.7 of the said order, wherein it has been made clear that no further evidence shall be led by either side and the Court below shall pass the fresh de-novo judgment and decree on the basis of the submissions to be made by both the sides. 3.1 By relying upon the said observations, the learned advocate for the respondent has submitted that since the Co- ordinate Bench of this Court has specifically not permitted any party to lead any further evidence, the impugned order does not require any interference and the impugned order is in consonance with the directions issued by this Court. 3.2 Learned advocate for the respondent has relied upon the observations made by the coordinate Bench of this Court vide order dated 21.07.2023, which is placed on record at page 79 of the petition which is reproduced hereunder: Page 3 of 6 Downloaded on : Fri Nov 10 20:58:49 IST 2023
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(v) It is made clear that no further evidence shall be led by either side and the Court below shall pass the fresh de-novo judgment and decree on the basis of the submissions to be made by both the sides.
(vi) It will be open for both the sides to place on record the documents which are filed before this Court in the proceedings initiated under Order 39 Rule 2(a) of the Code of Civil Procedure, 1908 as well as the Special Civil Applications filed by both the sides.
4. Having taken into consideration the rival submissions made by the learned advocates for the respective parties and having perused the averments stated in the petition, what is sought to be produced by the petitioner before the learned Trial Court was proceedings of the First Appeals being No.2733 of 2019, 2580 of 2021 and 3685 of 2021. By no stretch of imagination, it can be said that the respondents herein were not aware about the proceedings before the High Court as well as the contents of the proceedings. The Trial Court has committed an error of law in not deciding the application for giving Exhibits rather than, differed the decision of exhibiting the documents after the trial is concluded. Such practice is not permissible under the law.
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5. If such practice is adopted and allowed by the learned Trial Court, it would lead to miscarriage of justice for the simple reason that parties would remain in dark till the judgment is pronounced. And after the pronouncement of judgment either party may suffer on account of either exhibiting or non- exhibiting of documents. Thus, parties should not be kept in lurch. The practice adopted by various learned Trial Courts of keeping the issue open till the conclusion of the trial with regard to the application for giving Exhibits to the documents, is totally against the settled principles of law. Even in the impugned order, the learned Trial Court has committed an error by not deciding application Exhibit-925 and kept the parties under uncertainty. It is expected from the learned Trial Court that whenever the documents are produced by any party after considering the admissibility of the documents, the Trial Court should take the decision of either giving exhibits or reject the request / application for giving exhibits. The said exercise has to be undertaken before the cross-examination of the concerned Page 5 of 6 Downloaded on : Fri Nov 10 20:58:49 IST 2023 NEUTRAL CITATION C/SCA/19254/2023 ORDER DATED: 09/11/2023 undefined party starts. If such exercise is undertaken at the right stage, the trial would be proceeded without any unnecessary interlocutory applications. The learned Trial Court should not keep the parties in an uncertain situation by keeping the issue pending.
6. In view of the above observations, the Trial Court is directed to decide the application Exhibit-925 afresh after giving full opportunity to both the sides of hearing. It is further directed that the learned Trial Court should decide the trial only on merits keeping in mind the outer limit set up by this Court.
7. With these observations, order dated 27.10.2003 passed in Special Civil passed by the Additional Civil Judge, Deesa is quashed and set aside. The Trial Court may not be influenced by the observations made hereinabove while deciding Exhibit-925.
Direct service is permitted.
(D. M. DESAI,J) RINKU MALI Page 6 of 6 Downloaded on : Fri Nov 10 20:58:49 IST 2023