Gujarat High Court
Mahendra Sharma vs H S Sumra on 17 April, 2025
NEUTRAL CITATION
C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18089 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
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MAHENDRA SHARMA
Versus
H S SUMRA & ORS.
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Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1,6
MR. NISARG D SHAH(7299) for the Respondent(s) No. 2
MR. ZALAK B PIPALIA(6161) for the Respondent(s) No. 7
NOTICE SERVED for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 3
SUNIL H PRAJAPATI(8350) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 17/04/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Nisarg D. Shah waives service of Rule on behalf of respondent no.2 and Mr.Zalak B. Pipalia, learned advocate waives service of Rule on behalf of respondent no.7. The presence of other respondents is not required.
2. With the consent of learned advocates for the respective Page 1 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025 NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined parties, the matter is taken up for final hearing.
3. The present writ application has been filed under Article 227 of the Constitution of India seeking following reliefs.
(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus/certiorari or a writ in the nature of mandamus/certiorari or any other appropriate writ, order or direction quashing and setting aside impugned order below Exh.181 dated 18.08.2023 passed by the Ld. 7th Additional District Judge Vadodara Karjan in Trust Suit No.1/2020 (Old No.24/2015) (ANNEXURE-F) in the interest of justice; (B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the implementation of the order below Exh.181 dated 18.08.2023 passed by the Ld. 7th Additional District Judge Vadodara Karjan in Trust Suit No.1/2020 (Old No.24/2015) (ANNEXURE- F) and further be pleased to stay the proceedings of Trust Suit No.1/2020 (Old No.24/2015) pending before the District Court Vadodara Karjan; 7th Add (C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances present case;
4. The respondent nos.1 and 2 herein are original plaintiff who filed Trust Suit No.24 of 2015 against present petitioner who is respondent no.3 and against rest of the respondents herein. The respondent No.7 happens to be original defendant No.5 which is Trust and plaintiffs are Trustee of original defendant No.5-Trust.
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NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined 4.1 The defendant No.5 has in its written statement categorically made an averment that the suit filed by the plaintiffs is true and correct and the same be allowed, meaning thereby, it is supporting the case of plaintiffs being supportive defendant.
4.2 When the trial of the suit began, at the time of cross- examination of the plaintiffs, a question arose as to who will first cross-examine the plaintiffs and at this stage, an application being filed by the present petitioner along with defendant Nos.1 and 4, which came to be allowed by the Trial Court, thereby passed an order that defendant No.5 was directed by the Trial Court to first cross-examine the plaintiffs. 4.3 Now, at the stage of recording evidence of defendants, once again defendant nos.1, 3 and 4 have filed the impugned application below Exhibit 181 requesting the Trial Court to direct the defendant No.5 to first lead its evidence being a supporting defendant to the plaintiffs. 4.4 After hearing the parties, the Trial Court, vide its Page 3 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025 NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined order dated 18.08.2023 has rejected the impugned application, which is challenged by the defendant No.3 by way of the present writ application.
SUBMISSION OF THE PETITIONER - DEFENDANT NO.3
5. Learned advocate Mr. S. P. Majmudar with learned advocate Mr. Jamshed Kavina would submit that the impugned order passed by the Trial Court is contrary to the settled principle of law and against the rule of procedure and provisions of Evidence Act.
5.1 Learned advocate Mr. Majmudar would further submit that it is undisputed fact that defendant No.5 is supporting the case of plaintiffs and it is not an adverse party, thereby, defendant no.5 is required to first lead the evidence when the stage of examination of defendant commence. 5.2 Learned advocate Mr. Majmudar would further submit that bare reading of Order XVIII of Civil Procedure Code, 1908 (hereinafter referred to as "CPC") read with Sections 135, 137 and 138 of Evidence Act, would lead to suggest that in case Page 4 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025 NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined where one of the defendant is supporting the case of the plaintiffs then considered as supporting party. Such party is required to first lead evidence and then after, the other contesting defendants, who are adverse party to the case of the plaintiffs are required to begin or lead their evidence. 5.3 Learned counsel Mr. Majmudar would further submit that the impugned order is passed exceeding the jurisdiction so vested with the Trial Court and erroneously observed that applicants have not shown any prejudice would be caused to them in the impugned application.
5.4 Learned counsel Mr. Majmudar would further submit that when in earlier point of time, defendant No.5 was directed to first cross-examine the plaintiffs before other defendants to cross-examine the plaintiffs, it would be not appropriate on the part of the Trial Court to reject impugned application.
5.5 To buttress his argument he has relied upon the following decisions of this court:-
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NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined
(i) Shah Hiralal Himatlal Vs. M.G.Pathak reported in 1964 (0) GLR 327 (para- 4)
(ii) Chandrakant Chimanlal Shah Vs. Chimanlal Ambalal Shah reportedin 1992 (2) GLR 1411 ( para- 3 and 4) 5.6 Making the above submissions, Mr. Majmudar, learned advocate appearing for the petitioner would request this Court to allow the present writ application.
SUBMISSION OF THE RESPONDENTS
6. Per Contra, learned advocate, Mr. Zalak B. Pipalia appearing for the respondent No.7 - defendant No.5 being contesting respondent would submit that there is no error much less any gross error committed by Trial Court while rejecting the application.
6.1 Learned advocate, Mr. Pipalia would further submit that the petitioner has not shown any serious prejudice to be caused to them if defendant No. 5 will not be first examined and in that view of the matter, the order impugned may not Page 6 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025 NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined be disturbed by this Court while exercising its power under Article 227 of the Constitution of India. 6.2 Learned advocate Mr. Pipalia would further submit that merely because in earlier point of time, defendant No.5 was directed to first cross-examine the plaintiffs would not itself allow the petitioner to claim as a matter of right that defendant No.5 is required to first lead evidence. 6.3 Learned advocate, Mr. Papalia would further submit that in absence of any prejudice shown by the petitioner in support of their impugned application, it would not be appropriate for the defendant No.5 to first lead its evidence prior to leading of evidence of other contesting defendants. 6.4 Learned advocate, Mr. Pipalia would further argue that the proposition of law laid down in the decisions cited by learned advocate Mr. Majmudar would not be applicable to the facts of the present case and as such, it is not a mandatory provision of law, thereby, non contesting or supporting defendant will have to first lead the evidence. Page 7 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025
NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined 6.5 To buttress his argument, he has relied upon the decision of this Court in the Amratlal harivallabhdas Vs. Juna Madhupura Vyapari Mahajan Limited reported in 1976 (0) GLR 1007.
7. Learned advocate, Mr. Vishal C. Mehta for learned advocate, Mr. Nisarg D. Shah, appearing for respondent no.2 is adopting the argument so canvassed by learned advocate Mr. Pipalia.
8. Making the above submissions, learned advocates appearing for the respective respondents would request this Court to dismiss writ application.
9. No other and further submissions being made by any of respective learned advocates appearing for the parties. ANALYSIS
10. The short question, which would fall for consideration of this Court is as to whether any gross error and/or jurisdictional error committed by the Trial Court while rejecting the impugned application, thereby, not acceded to the request of Page 8 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025 NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined defendant nos.1, 3 and 4 and whereby, not directed defendant No.5 to first lead evidence prior to them?
11. The facts of the case, which are so recorded hereinabove, are undisputed one. It is not in dispute that defendant No.5 is a trust and plaintiffs are its trustees. The defendant No.5 in clear terms in its written statement has supported the case of plaintiffs.
12. So, the defendant no.5 is a supporting defendant to the case of the plaintiffs. It is further undisputed that while cross- examined plaintiffs on request made by defendant Nos.1, 3 and 4, the Trial Court has directed defendant No.5 to first cross- examine the plaintiff.
13. Now, it is at the stage of recording of the evidence of defendants, the impugned application came to be filed by defendant Nos.1, 3 and 4 requesting the Trial Court to direct the defendant No.5 to first lead its evidence in support of his pleading. As such, considering the case law on the subject, issue germane in the matter is squarely covered by following Page 9 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025 NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined two decisions of this court
14. It would be apt to first considered the decision of this Court delivered in the case of Shah Hiralal (supr), wherein this Court has observed and held as under:-
"4. So far as the defendants go, the question which of tree defendants should begin has not been dealt with in Order 18, C. P. Code. But on general principle, if any of the defendants supports the plaintiff in whole or in part, then he should address the Court and lead his evidence first before the other defendants who do not support wholly or in part the plaintiff's case. The order in which defendants lead evidence becomes important only when some of them support the case of the plaintiffs in whole or in part while the others do not. If all the defendants completely oppose the plaintiff's case, then the question of order of leading evidence amongst the defendants is immaterial. It is only when the defendants are divided into two groups, one group consisting of the defendants supporting the plaintiff's case in part and the other group consisting of defendants, who do not support the plaintiff's case in any part that the question of order of leading evidence becomes important. In such cases among defendants the order of leading evidence should be as follows:
(1) Those defendants who fully support the case of the plaintiff.
(2) Those defendants who partly support the case of the plaintiff.
(3) Those defendants who do not support the casa of the plaintiff in any part."
(emphasis supplied) Page 10 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025 NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined
15. Likewise, in a case of Chandarakant Chimanlal Shah (Supra) also, this Court (Hon'ble Mr. Justice R.K.Abichandani as he then was) has elaborated the issue and after considering Sections 135, 137 and 138 of Evidence Act read with Order XVIII Rule 1 and 2 of CPC held thus:-
"4. Under section 135 of the Indian Evidence Act, 1872, it has been provided that the order in which witnesses are produced and examined would be regulated by the law for the time being in force relating to Civil and Criminal Procedure respectively and in absence of any such law by the discretion of the Court. Order 18 Rule 1 refers to right to begin which ordinarily is with the plaintiff as indicated therein and Rule 2 lays down that the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove on the day fixed for the hearing of the suit or on any other adjourned day and thereafter the other party shall state his case and produce his evidence. Sub-rule (2) of Rule 2 of Order 18 does not provide for the order in which the other party has to lead evidence when there are more than one defendants. Thus, when there is no specific provision on this aspect, the matter would rest on the discretion of the Court as provided in Section 135 of the Evidence Act and that discretion, obviously, has to be exercised on sound judicial principles, which, in the instant case, are reflected in the decision of this Court in Hiralal''s case (supra). The principles laid down in that decision have already been adhered to by the Courts in Orissa as can be seen from the decision in Jhumpa Bewa and Others Vs. Sahadeb Rout and Others, . After referring to the order of leading evidence indicated by this Court in Hiralal''s case (supra), the Orissa High Court observed that these principles are adhered to by all the Courts in the State of Orissa. It was observed that the Courts in such cases cannot merely act as a passive agent and as a master of Court proceedings, the Presiding Officer shall guide the trial of a suit being fully aware of the pleadings and the nature of evidence that the parties are expected to adduce before the Court. A similar view was taken Page 11 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025 NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined by the Andhra Pradesh High Court in Bommidi Vasudeva Murthy v. Bommidi Bhasker Rao and Ors., (reported in ILR 1975 AP 307, 308)].
5. The provisions of Order 18 Rules 1 and 2 and Sections 137, 138 of the Evidence Act would indicate that when the plaintiff''s case is fully supported by some of the defendants, these defendants are not adverse party and it would be just and proper for the Court to ask them to initially cross-examine the plaintiff and then ask the contesting defendants (adverse party) to cross-examine the plaintiff particularly when the adverse party so desires Therefore, it would not be appropriate to direct the real contesting party to first disclose his defence and then keep in a reserve the defendants supporting the plaintiff to destroy his defence. Prudence clearly demands that the supporting defendants should be considered on rhe side of the plaintiff and their leading evidence must immediately follow the plaintiffs'' evidence so that the contesting defendants can meaningfully exercise their right of leading evidence in accordance with the provisions of Order 18 Rules 1 and 2 of the Civil Procedure Code. In other words, it would be in consonance with the scheme of those provisions to require the supporting defendants to lead their evidence immediately on the completion of the evidence of the plaintiff because the supporting defendants would not be, in true sense, the other party that is the adverse party. In this view of the matter, it is clear that the Trial Court has committed an error in exercise of its jurisdiction in not issuing direction as sought for by the petitioner in his application Exh. 167 by asking the respondent No. 2 to lead evidence before the petitioner could lead his evidence. This Revision Application is, therefore, allowed and the impugned order dated 18th July, 1989 passed below Exh.
163 by the Trial Court is hereby set aside and the application Exh. 163 is granted by directing the respondent No. 2 to lead evidence in the suit if she so desires before the petitioner could lead his evidence."
(emphasis supplied)
16. So, after going through both these aforesaid decisions and its ratio, if applied to the facts of the present case, the Trial Page 12 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025 NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined Court has surely committed a gross error in law, which is required to be corrected by this court.
17. So far as decision relied upon by learned advocate, Mr. Pipalia in the case of Amaratlal Harivallabhdas (Surpa), the facts are not so similar to the facts at hand. It is not the case of a supporting defendant to first lead evidence like present one rather it appears from bare reading judgement that trial court had directed supporting defendant to first cross-examine another defendant then plaintiff to cross-examine which in fact already done in past by trial court in case on hand also. So, in the peculiar facts and circumstances of that case, then the Single Judge of this Court has observed as under:-
"1. In a suit filed by the plaintiff-opposite parties Nos. 1 to 3 who will hereafter is referred to as the plaintiffs-against the petitioner (original defendant No. 2) and opposite party No. 1 (original defendant No. 1) inter alia on the basis of sub-letting of the suit premises by opposite party No. 4 to the petitioners a question arose when defendant No. 1 i. e. opposite party No. 4 entered the box as to who should cross-examine the said defendant. In view of the allegations in the plaint and for the sake of clarity we will be describing the petitioner as the sub- tenant opposite party No. 4 as the tenant and the plaintiffs- opposite parties Nos. 1 to 3 as the landlords. So the question which arose was whether the tenant should be cross- examined first by the sub-tenant or the landlords. The Trial Court by its decision dated July 18 1974 directed that the sub-tenant will cross-examine the tenant first and it will be Page 13 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025 NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined followed by the cross-examination of the tenant by the landlords. It is against this order that the petitioner has come in revision to this Court. It may be stated that the claim of the sub tenant was that he was a lawful sub-tenant brought upon the premises by the tenant. As against this the case of the landlords was that the subletting to the said subtenant was illegal.
3.........................I need not express any opinion at this stage on the question whether the order in which the parties shall lead evidence before the Court would amount to a case de- cided or not, because that question does not crop up before me. But so far as the order of cross-examination of an adver- sary by two contesting parties is concerned, an order passed by the trial Court in exercise of its discretion would not amount to a case decided.
4. This decision, however, would not prevent the petitioner from moving the trial court for further cross-examination of a party or its witness if any material damaging his case is brought on record as a result of the cross-examination of the adverse party or its witnesses by the landlords after the cross-examination of the petitioner is over. In such a case, it will be upto the petitioner to make a request to the trial Court to permit him to cross-examine the adverse party or its wit- nesses with regard to any damaging material brought out in the cross-examination of the plaintiffs and it will be for the trial court to pass appropriate orders in that behalf."
(emphasis supplied)
18. Thus, in view of the aforesaid facts and circumstances of the case and following the ratio of afore said two decisions so cited by learned advocate of petitioner, if applied to the facts of the present case, I am of the view that the impugned order is not passed in consonance with the law laid down by this Page 14 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025 NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined Court as well as passed contrary to the Order XVIII Rule 1 and 2 CPC read with Sections 135, 137 and 138 of Evidence Act.
19. It is also well settled law that High Court should sparingly exercise its power under Article 227 of the Constitution of India only in appropriate cases in order to keep the subordinate courts within the bounds of their authority [Waryam Singh v/s Amarnath - AIR 1954 SC 215]. Having arrived at the aforesaid conclusion and having found that trial Court has committed procedural irregularity which requires to be corrected by this Court while exercising its power under Article 227 of the Constitution of India thereby, interference requires in the impugned order, thereby, it is required to be quashed and set aside, which is hereby quashed and set aside and consequently, the impugned application filed below exhibit 181 is hereby allowed.
20. At this stage, learned counsel appearing for the respective parties state that the suit is of the year 2015 and it is at the Page 15 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025 NEUTRAL CITATION C/SCA/18089/2023 JUDGMENT DATED: 17/04/2025 undefined stage of recording of the evidence of defendants and therefore, a suitable direction may be issued to the Trial Court for expeditious adjudication of the suit.
21. It is open for the respective parties to request the Trial Court for expeditious adjudication of the suit.
22. If such a request will be made to the Trial Court, the Trial Court may consider the same sympathetically as the suit is of the year 2015.
23. In view of the aforesaid, the impugned application filed below Exhibit 181 is allowed by this Court and defendant No.5 is required to first lead evidence if so desire and the same may be exercised by defendant no.5 within a period of one month from the date of receipt of the copy of this order.
24. As a sequel, the present writ application is hereby allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 16 of 16 Uploaded by MOHD MONIS(HC01900) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:53:48 IST 2025