Gujarat High Court
Krishna Steel And Plywood vs Dungarsinh Puvar Through His ... on 2 February, 2021
Bench: Ashokkumar C. Joshi
C/SCA/1989/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1989 of 2021
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KRISHNA STEEL AND PLYWOOD
Versus
DUNGARSINH PUVAR THROUGH HIS WIDOW WIFE ROSHANBEN WD/O
DUNGARSINH PUVAR
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Appearance:
MR HARSHAD K PATEL(2844) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 02/02/2021
ORAL ORDER
1. Heard learned advocate Mr. Harshad K. Patel for the petitioner
through video conference.
2. This petitioner has filed this petition under Articles 227 of
the Constitution of India with following main prayers:
"(B) YOUR LORDSHIPS be pleased to issue a writ of
certiorari, or any other appropriate writ, order or direction,
quashing and set aside the impugned order dtd.
22.12.2020 passed by Ld. Principal Senior Judge, Modasa,
District- Aravalli on application below Exh. 112 in Regular
Civil Suit No. 19 of 2017 and further be pleased to allow
the application below Exh. 112 as prayed for, in the
interest of justice;
(C) YOUR LORDSHIPS be pleased to stay the
implementation, operation and execution of the
impugned order dtd. 22.12.2020 passed by Ld. Principal
Senior Judge, Modasa, District- Aravalli on application
below Exh. 112 in Regular Civil Suit No. 19 of 2017 and
also stay the further proceedings of Regular Civil Suit No.
19 of 2017, pending the admission, hearing and final
disposal of this petition;
3. The facts of the case in nutshell are that the petitioner is
C/SCA/1989/2021 ORDER
the original plaintiff, while the respondent is the original
defendant in Regular Civil Suit No. 19 of 2017 filed in the Court of
Learned Principal Civil Judge, Modasa. That in the year 2017, the
plaintiff filed the above suit for recovery of Rs. 10,43,720/- from
the husband of the defendant viz. Dungarsinh Puvar as the said
amount was outstanding towards purchase of hardware goods
from the plaintiff. The plaintiff produced documentary evidence in
support of his case. The oral evidence of the plaintiff was also
recorded. He was also cross-examined by the defendant. The oral
evidence of defendant was recorded vide Exh. 106. He was also
cross-examined on 9.9.2019. Both, the plaintiff and the
defendant filed closing purshis vide Exhs. 101 and 108
respectively. Subsequently, the plaintiff realized that some more
documents are required to be produced which goes to the root of
the case and are necessary for adjudicating the subject matter of
suit. The plaintiff also realized that two more witnesses are
required to be examined which would again substantiate the case
of the plaintiff. That on 20.1.2020, the plaintiff, in the above
circumstances filed an application Exh. 112 under Section 151 of
the CPC for production of evidence and examining witnesses.
However, without appreciating the facts, evidence and
circumstances of the case as well as settled provision and
position of law, the learned Principal Senior Judge, Modasa,
District- Aravalli by impugned order dated 22.12.2020 was
pleased to reject the application Exh. 112.
4. Learned advocate Mr. Harshad Patel for the petitioner has
vehemently argued that in the present case, the petitioner has
moved before the trial Court for examining two witnesses though
the stage was over. But due to lock down he could not proceed
with the matter. He has fairly submitted that the petitioner had
given closing purshis on 23.09.2019. He further submitted that it
C/SCA/1989/2021 ORDER
was bona-fide mistake of the concerned learned advocate at the
trial Court and therefore opportunity may kindly be given to
examine two witness. The matter has posted for arguments.
4.1 During the course of agruments, learned advocate Mr.
Harshad Patel for the petitioner has submitted that appropriate
order may be passed at the stage of admission.
5. This Court has referred the impugned order passed by the
trial Court on 22.12.2020 wherein, the trial court has specifically
mentioned that when the application was given by the original
plaintiff for examining the witnesses at that time original- plaintiff
/ present petitioner has neither given any reason nor the nature
of the witnesses to be examined and therefore, learned trial
Court has observed that the application was given to drag the
matter and therefore, the same was disallowed. But this Court is
of the considered opinion that if such opportunity is given when
the stage is over, in that case everybody will approach this Court
after conclusion of the evidence and it would be commencement
of new trial for which, as such, the learned advocate for the
petitioner has failed to convince this Court. Further, so far as the
closing purshis filed on 23.09.2019, at that time, there was no
lock-down, on the contrary lock-down started from 22.03.2020,
therefore this Court is of the considered opinion that, no case is
made out for interference in the order passed by the trial Court.
As ex-facie, it appears there is no substance in the arguments
advanced by the learned advocate Mr. Harsahd Patel for the
petitioner.
5.1 At this juncture, it would be beneficial to refer to the
decision of the Hon'ble Supreme Court in the case of Bagai
Constructions and Ors. Vs. Gupta Building Material Store,
reported in 2013 LawSuit(SC) 171, in Civil Appeal No. 1787 of
C/SCA/1989/2021 ORDER
2013 dated 22.02.2013, Head Notes (B) and (C) of which are
extracted here under:
"(B) Civil Procedure Code, 1908- Order18 Rule 17 r/w Sec. 151.
The Principle-Plaintiff cannot be permitted to fill the Lacunae in
its pleading and evidence - When no reason shown as to why the
Documents were not placed on record during Trial then the
Inherent Power also cannot be exercised- High Court taking note
of the words "At any stage" could not casually set aside the order
of the Trial Court dismissing application under this Rule. It is not
the case that plaintiff not given adequate opportunity to produce
evidence.
(C) Civil Procedure Code, 1908, Preamble - Object of the various
amendments in CPC- After various amendments in CPC -
Recording of evidence should be continuous and followed by
Arguments and Judgment within reasonable time - Not following
time Schedule defeats the purpose of amendment-Civil
Procedure Code, 1908 - Order 17 Rule 1(2)(a)- Appeal allowed."
6. For the aforesaid discussion and considering the facts and
circumstances of the case vis-a-vis the aforesaid decision of the
Hon'ble Supreme Court, the petition fails and is dismissed
accordingly in-limine.
(A. C. JOSHI,J)
prk
