Maheshbhai Maganbhai Desai vs Gitaben Jayantilal Desai

                                                                                         NEUTRAL CITATION




     C/SCA/16135/2023                                      ORDER DATED: 18/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16135 of 2023

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                         MAHESHBHAI MAGANBHAI DESAI
                                    Versus
                           GITABEN JAYANTILAL DESAI
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Appearance:
MS VISHWA A SHASTRI(10559) for the Petitioner(s) No. 1
PRANAV U RAVAL(9475) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6,7,8
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                    Date : 18/09/2023

                                     ORAL ORDER

1. By way of this petition under Article 227 of the Constitution of India, the petitioner has prayed for following reliefs in para 7:-

"(a) A writ of Mandamus or any other appropriate writ, order or direction may kindly be issued by quashing and setting aside the order dated 29.08.2023 passed by 6 th Additional Senior Civil Judge and Addl. CJM, Valsad.

(b) Pending hearing and final decision of the present Special Civil Application, the proceedings of the Special Civil Suit No.2 of 2021 may kindly be stayed.

(c) Any other and /or further orders that may be deemed necessary in the interest of justice may kindly be passed.

(d) Cost of the present petition may kindly be awarded to the petitioners from the respondents."

2. Facts in nutshell are as under :-

NEUTRAL CITATION C/SCA/16135/2023 ORDER DATED: 18/09/2023 undefined 2.1. Plaintiff - Gitaben Desai and Aniket Desai have preferred Special Civil Suit No.2 of 2021 before the learned Principal Senior Civil Judge, Valsad seeking relief of partition and separate possession of various immovable properties stated in Annexure 1 to 4 along with the plaint.

2.2. In the suit issues were framed at Exh.46. Plaintiff -Gitaben entered into witness box at Exh.72 to prove her case. She has been cross examined by the learned advocate of other side. Subsequent thereto, application Exh.179 was filed by the defendant to give exhibit to the document mark Exh.120/1 inter- alia on the ground that this documents has been referred during cross examination of the plaintiff and she has admitted contents thereof. Learned 6th Additional Senior Civil Judge, Valsad refuted relief prayed in application Exh.179. Therefore, this petition.

3. Heard learned advocate for the petitioner. He would submit that learned Trial Court has committed error in dismissing the application for exhibiting the document produced at Exh.120/1. He would submit that on perusal of deposition of Gitaben, it transpires that in cross examination she has been confronted with document (Exh.120/1) and she has admitted contents of the document and therefore, in view of settled provision of law, document is required to be given exhibit, but the Court below has committed error and therefore, he would submit to issue notice.

4. Perusal of the impugned judgment indicates that document Page 2 of 4 Downloaded on : Thu Sep 21 20:37:22 IST 2023 NEUTRAL CITATION C/SCA/16135/2023 ORDER DATED: 18/09/2023 undefined produced as Mark 120/1 is unregistered document. According to the finding of the learned Trial Court by this document, the parties have decided their right in presenti and also given guarantee to pay certain amount in future. It is observed by the Court below that this document falls within operation of section 17(1)(b) of the Registration Act and as such this document is required to be registered. It is held by the Court below that since it is creating right of the party in presenti, it is required to be registered and until it gets registered, it cannot be read and taken into evidence. On all this findings, learned Court below has dismissed the application. To be noted that in AO No.137 of 2021, this Court has expedited the final hearing of the suit permitting both the parties to adduce their evidence and directed to decide the suit within 3 months from the date of receipt of the order.

5. At Annexure E collectively, the petitioner has produced affidavit of plaintiff in lieu of examination of chief and cross examination thereof. On going through cross examination, it appears that document at Mark 120/1 has not been specifically referred to in the cross examination and contents thereof are asked to the deponent. What appears that document at Mark 120/1 is filed in support of the defence of the defendant. Defendant owes responsibility and liability to prove that document. Section 101 read with section 102 of Evidence Act is clear to that proposition.

6. Perusal of the impugned judgment indicates that learned Trial Court has not committed any error much less error of Page 3 of 4 Downloaded on : Thu Sep 21 20:37:22 IST 2023 NEUTRAL CITATION C/SCA/16135/2023 ORDER DATED: 18/09/2023 undefined understanding provision of law. Learned advocate for the petitioner failed to make out case which call for interference of this Court under Article 227 of the Constitution of India. Needless to say that jurisdiction under Article 227 of the Constitution of India can be exercised sparingly in appropriate case.

The petition is dismissed at admission stage.

(J. C. DOSHI,J) SATISH Page 4 of 4 Downloaded on : Thu Sep 21 20:37:22 IST 2023