Gujarat High Court
M/S. Gautam Sarabhai vs Navinbhai Raichandbhai Thakker on 9 October, 2025
NEUTRAL CITATION
C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12024 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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M/S. GAUTAM SARABHAI
Versus
NAVINBHAI RAICHANDBHAI THAKKER & ANR.
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Appearance:
MR. DIPAK R. DAVE(1232) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 09/10/2025
ORAL JUDGMENT
1. The present writ application is filed under Article 227 of the Constitution of India, seeking the following order:
"(A) This Hon'ble Court may be pleased to issue an appropriate writ, order or direction to quash and set aside the impugned Judgment and Decree dated 15.04.2025 passed by The Learned Small Causes Court, Ahmedabad in New Trial Application no. 17 of 2023 as well as Judgment and Decree dated 25.04.2023 passed by The Learned Small Causes Court no.2, Ahmedabad in Regular Civil Suit no. 268 of 2022, at Annexure-A & B respectively to the petition;Page 1 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:19:52 IST 2025
NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined (B) Pending the admission hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the execution, implementation and operation of the impugned Judgment and Decree dated 15.04.2025 passed by The Learned Small Causes Court, Ahmedabad in New Trial Application no. 17 of 2023 as well as Judgment and Decree dated 25.04.2023 passed by The Learned Small Causes Court no.2, Ahmedabad in Regular Civil Suit no. 268 of 2022, at Annexure-A respectively to the petition; (C) Any other and further relief or reliefs to which this Hon'ble Court interest of deemed fit, in the justice; may kindly be granted."
2. The petitioner herein is original plaintiff, whereas, the respondents herein are original defendants of Summary Suit No.268 of 2022.
3. At the outset, it is required to be noted that petitioner having filed summary suit before Small Cause Court against respondent, which was dismissed by Small Causes Court, Ahmedabad. Thereafter, the petitioner preferred New Trial Application under Section-38 of the Presidency Small Cause Act, 1882 (hereinafter referred to as "the Act, 1882"), which also dismissed by Appellate Bench of Small Cause Court, Ahmedabad. So, against concurrent finding of fact recorded by the courts below against petitioner, the present application is filed under Article 227 of the Constitution of India by the petitioner.
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NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined
4. Ordinarily, when any recovery suit, be it summary suit or regular civil suit, filed before Civil Court, the decree passed in such suit would be appealable before the Appellate Court. Nonetheless, in the case on hand, summary suit came to be filed before the Small Causes Court, Ahmedabad, wherein any decree passed, against which, there is no appeal remedy provided under the Act 1882, except to file an application under Section 38 of the Act 1882, which reads as follows:
"38. New trial of contested cases :-
Where a suit has been contested, the Small Cause Court may, on the application of either party, made within eight days from the date of the decree or order in the suit (not being a decree passed under section 522 of the Code of Civil Procedure) order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings.
Explanation. - Every suit shall be deemed to be contested in which the decree is made otherwise than by consent of or in default of appearance by the defendant."
5. The bare reading of Section 38 of the Act 1882 would suggest that new trial may be held, or the decree impugned would or can be altered, set aside or reversed, upon such terms as court thinks reasonable. Such would be the position, a New Trial Application filed under Section 38 of the Act 1882, cannot be Page 3 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:19:52 IST 2025 NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined equated with a regular civil appeal filed before the appellate court concerned against any decree passed by civil court.
6. Nevertheless, the Appellate Bench of the Small Causes Court, while adjudicating such New Trial Application filed by the petitioner herein, appears to have treated it as if it was a regular appeal. So, it framed the points/issues germane in the matter, then after, it passed a detailed judgment and so also drawn the decree.
7. With this set of judgments and the decree passed by the Small Causes Court, as well as the Appellate Bench of the Small Causes Court, Ahmedabad City, is now questioned by the original plaintiff-petitioner herein by way of this writ application.
8. SUBMISSIONS OF PETITIONER-PLAINTIFF:
8.1. Learned Counsel Mr. Deepak R. Dave would vehemently submit that the amount of Rs.7,92,079.35/ could not have been debited from the account of the plaintiff by defendant No.1 in pursuance of the shares transaction of "Shree Rang Fincap", as it would be an illegal transaction having being so held by the Ahmedabad Stock Exchange.Page 4 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:19:52 IST 2025
NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined 8.2. Learned Advocate Mr. Dave would further submit that the Trial Court as well as the Appellate Court both have committed serious error in law by not appreciating that the onus to prove such act of recovery of defendant No.1 in regards to aforesaid amount in pursuance to any alleged loss caused to him would be upon defendant No.1 and not upon the petitioner/plaintiff. It is submitted that as per the case of defendant No.1, due to illegal share transactions carried out by the plaintiff, he suffered loss of the aforesaid amount, thereby entitled him to recover it from the plaintiff, being his sub- broker, then in such situation, the burden is upon defendant No.1 to prove such loss.
8.3. Learned Advocate Mr. Dave would further submit that defendant No.1 required to prove such loss caused to him due to so called illegal transaction by plaintiff, having not submitted any piece of evidence to substantiate such loss, plaintiff entitled to receive the claim amount from defendant No.1. It is submitted that during cross-examination, defendant No.1 was unable to produce any documentary evidence, including diary which was maintained by him, wherein details of the transaction written down by him.
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NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined 8.4. Learned Advocate Mr. Dave would humbly submit that considering the peculiar facts and circumstances of the case, when defendant No.1 has illegally deducted the amount from the account of the plaintiff and thereby recovered the aforesaid amount, the plaintiff is entitled to get back such amount from defendant No.1.
8.5. Making the above submissions, learned Advocate Mr. Dave requests this Court to allow the present writ application.
9. No other and further submissions are made by learned advocate for the petitioner.
10. Heard learned Advocate Mr. Dave at length.
11. I have also gone through the impugned judgment passed by the Trial Court as well as the Appellate Court, whereby both courts below have concurrently held against the plaintiff, whereby they observed that the plaintiff miserably failed to prove his claim made in the suit.
12. This court having limited jurisdiction under Article 227 of the Constitution of India, cannot re-appreciate the evidence on record. Furthermore, unless and until, it has been pointed out Page 6 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:19:52 IST 2025 NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined and shown to this court that there is gross illegality, irregularity, or jurisdictional error committed by the court below and/or there is any perversity in the findings so recorded by the courts below while passing the judgment/decree, this court should not interfere with the judgment/order passed by the court at the drop of a hat. [See - (i) Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (Para 6 and 7) and (ii) Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and 16)].
13. None of the arguments so canvassed by learned Advocate Mr. Dave appeal to this court, inasmuch as, it has no legal basis to stand. It remains undisputed on record that illegal transaction in relation to the purchase of shares of 'Shree Rang Fincap' was carried out by the plaintiff without any instruction received from defendant No.1 being main broker. It also remain undisputed that such transaction was not authorized in law. Further, due to such transaction, according to the defendant No.1, he suffered a loss of Rs.7,92,079/- and accordingly, he debited such amount from the account of the plaintiff being sub-broker. It has been observed by the Trial Court in its impugned judgment, more particularly in Paragraph 46, that Page 7 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:19:52 IST 2025 NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined the plaintiff has deposed contrary to the claim. Further, it has been observed by the Trial Court and it can be seen from the cross-examination of the plaintiff below Exhibit 173, wherein he admitted that his brother was doing the transaction, who undisputedly not examined by the plaintiff. It further appears that the petitioner-plaintiff having no personal knowledge about the transaction made by his brother.
14. Be that as it may, the fact remains that such illegal transaction done at the instance of the plaintiff or his brother and there is no role of defendant No.1. In such situation, if defendant No.1 being the main broker suffered a loss due to an illegal act of plaintiff being sub-broker acted under him, then in such situation, there is nothing wrong that he debited the said amount from the account of the plaintiff. It is also doubtful as to whether plaintiff can maintain the suit to recover the amount for its own illegal act from defendant No.1, who never instructed plaintiff to undertake such transaction.
15. It is settled legal position of law that a heavy burden would be upon the shoulders of the plaintiff to prove his claim made in the suit. The Trial Court has correctly appreciated such an Page 8 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:19:52 IST 2025 NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined aspect of the matter by referring Sections 101, 102, and 106 of the Evidence Act. It is not correct to say, as contended by learned Advocate Mr. Dave that the Trial Court has failed to appreciate the aspect of onus of proof while adjudicating the claim of the plaintiff. This in fact, proved wrong by referring to the following passages of the judgment rendered by the Trial Court in the matter, which reads as under:
"42 Thus, The most important issue in this case is that, upon whom the Burden of proof lies to prove the facts that, "The defendant no.1 has, the amount of Rs.7,92,079=35 p.s. about transaction of shares of Shree Rang fincap, wrongly debited in account the of the plaintiff." which deals with the aspect of burden of proof. In the present case, in my opinion, the relevant Sections would be Sections-101, 102 and 106 of The Evidence Act. Section-101 of The Evidence Act deals with the burden of proof upon a party who asserts before the Court about his case. It lies with a person who asserts a particular fact which exists. Section-102 of The Evidence Act makes it clear that if no evidence is given by either side, the person who asserts, would fail. Section-106 of The Indian Evidence Act deals with the burden of proving a particular fact lies on that person if that particular fact is within Page 9 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:19:52 IST 2025 NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined his knowledge. It is true that it is the duty of the plaintiff to establish his case with regard to the assertions he has made in the plaint. While dealing with Sections-101 and 102 of The Evidence Act, the Apex Court in the case of Anil Rishi V/s.Gurbaksh Singh, as reported in AIR 2006 SC 1971 has held in para -19 as under:
"19. There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is under in three ways: (I) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and
(iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible.
In terms of Section 102, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would dis-entitle the plaintiff to the same."
43 The aforesaid ratio laid down by the Hon'ble Apex Court is the elementary rule that Section-101 of the Evidence Act is inflexible and the initial onus is always on the plaintiff. However, conjoint reading of Sections-101 and 102 of the Evidence Act, it is amply clear Page 10 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:19:52 IST 2025 NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined that, if, the plaintiff discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would dis-entitle the plaintiff to the same.
44 In the case of A. Raghavamma and Anr. A. Chenchamma and Anr., as reported at AIR 1964 SC 136, the Hon'ble Apex Court while dealing with the provisions of Section-101 of The Evidence Act, in para-12 has held as under:
"12. .................. There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. ..........."
45 In view of the pronouncements of the Hon'ble Apex Court with regard to Sections-101 and 102 of The Evidence Act, it is abundantly clear that the burden of proof lies on the shoulder of the plaintiff to prove the facts that, "Whether the plaintiff proves that the defendant no.1 has, the amount of Rs.7,92,079=35 p.s. about transaction of shares of Shree Rang Fincap, wrongly debited in Page 11 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:19:52 IST 2025 NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined account of the plaintiff and further the plaintiff is entitled to get the amount of Rs.2,45,202=15 p.s for difference of bills ?"
(emphasis supplied)
16. Having so observed hereinabove, I am of the view that there is no illegality committed by the Trial Court in appreciating evidence and so also answering the issues framed by it. As such, the initial burden to prove the claim would always be upon the plaintiff and merely because, it is asserted by the plaintiff in his plaint that the amount is illegally debited by defendant No.1 would not ipso facto entitled him to claim that the onus to prove such so-called illegal debit have to be discharged by defendant No.1.
17. This court would not have further burdened this judgment but, to deal with submission of petitioner, reproduced the issues which are framed by the Trial Court during the course of the trial, which reads as under:
"7. From the pleadings of the parties, following issues are framed at Exh.168 :
1 Whether the plaintiff proves the suit claim ?
2 Whether the plaintiff is entitled for the relief as Page 12 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:19:52 IST 2025 NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined prayed for in Exh.1 ?
3 Whether the plaintiff is entitled for the interest as claimed ?
4 What order and decree ?
8. My findings to the above issues are as under :
1 In the negative.
2 In the negative.
3 In the negative.
4 As per the order."
(emphasis supplied)
18. So, in view of the aforesaid issues framed by the Trial Court, the plaintiff was well aware that burden was upon plaintiff to prove the suit claim, which it failed to discharge. Now, plaintiff cannot cry foul that courts below have incorrectly put burden upon its shoulder to prove his claim made in the suit.
19. So far as the last limb of argument of learned Advocate Mr. Dave that defendant No.1 has not produced the diary so maintained by him in regards to the transaction made in relation to the transaction in question is concerned, it does not appear from the record that at given point of time, the plaintiff called upon defendant No.1 to produce any such document Page 13 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:19:52 IST 2025 NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined before the trial commenced, which otherwise could have been done by the plaintiff as per the provisions of Order 13 of the CPC. The cross-examination of the plaintiff (see-page 28 of the cross-examination) would suggest that the plaintiff never demanded such diary from defendant No.1.
20. In fact, while reappreciating evidence on record, which otherwise, not required to be done by Appellate bench of Small Causes Court while hearing New Trial Application, still it has undertaken such painstaking exercised. Nonetheless, bench was unable to agree with any of submissions so canvassed by petitioner herein, thus dismissed such New Trial Application. As such, I am also in complete agreement with view taken by Small Causes Court and its Appellate bench, whereby it dismissed the suit as well as application.
21. In light of the aforesaid peculiar facts and circumstances of the case and when both the courts concurrently held that the plaintiff failed to prove his claim, even on appreciation of the submissions so canvassed by learned Advocate Mr. Dave, and revisiting the impugned judgments as well as oral evidence of the parties, I am unable to accept any of the submissions of Page 14 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:19:52 IST 2025 NEUTRAL CITATION C/SCA/12024/2025 JUDGMENT DATED: 09/10/2025 undefined learned Advocate Mr. Dave for petitioner.
22. Thus, the upshot of the aforesaid observations, discussions and reasons, I am of the view that the present writ application bereft of any merit, inasmuch as there is neither any illegality nor any irregularity or perversity found in the impugned judgment and decree passed by the courts below.
23. Consequently, the present writ application is hereby rejected, albeit with no costs.
(MAULIK J.SHELAT,J) NILESH Page 15 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 14 2025 Downloaded on : Tue Oct 14 23:19:52 IST 2025