Gujarat High Court
Pushpaben Rajkumar Ahuja Through ... vs Haresh Manoharlal Sindhi on 17 February, 2021
Bench: Ashokkumar C. Joshi
C/SCA/2095/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2095 of 2021
=======================================
PUSHPABEN RAJKUMAR AHUJA THROUGH POA HARISH RAJKUMAR
AHUJA
Versus
HARESH MANOHARLAL SINDHI
=======================================
Appearance:
MR HARESH J TRIVEDI(927) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2
=======================================
CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 17/02/2021
ORAL ORDER
1. Present writ petition, under Article 227 of the Constitution
of India, is filed by the petitioners - original defendants
challenging an order below exhs. 10-11 (Chamber Summons) in
Civil Suit No. 1448 of 2017 dated 14.12.2020, passed by the
learned Chamber Judge, City Civil Court No. 29, Ahmedabad by
which, the learned Chamber Judge was pleased to reject the said
applications (chamber summons), by which, permission was
sought for to produce the original power of attorney by the
petitioners - defendants.
2. Heard, learned advocate Mr. H. J. Trivedi for the petitioners
- original defendants through video conference.
3. The learned advocate for the petitioners - defendants
vehemently and fervently argued that by way of the aforesaid
chamber summons, the petitioners - defendants had prayed for
C/SCA/2095/2021 ORDER
to produce the original power of attorney on the basis of which,
the original plaintiffs stated to have instituted the suit. He further
submitted that while instituting the suit, the plaintiffs have
produced a copy of the power of attorney in question, which was
marked as (Mark) 4/3, however, since there is some doubt as
regards the said power of attorney, original of which, is in
possessions of the present respondents - original plaintiffs, the
petitioners - defendants, by way of aforesaid chamber summons
applications exhs. 10-11, sought the same be permitted to be
produced in the original suit proceedings, however, the learned
Chamber Judge was pleased to reject the same. He submitted
that, under the provisions of O.11 R.12 of the Civil Procedure
Code, 1908 (CPC), a party, who is in possession of any
documents, is required to produce the same before the Court
failing which, adverse inference can be drawn against such party
under the provisions of the Evidence Act, 1872, which fact, the
learned Chamber Judge has failed to consider. Accordingly, he
submitted that the impugned order is illegal, arbitrary, perverse
and against the settled legal position and it is urged that the
same may be quashed and set aside.
4. Regard being had to be submissions advanced by the
learned advocate for the petitioners - defendants and on
perusing the documents available on record, it appears that the
petitioners have sought to produce the original power of attorney
on basis of which, the original plaintiffs have instituted the suit.
A bare perusal of the impugned order herein reveals that the
learned Chamber Judge, in the impugned order, has clearly
mentioned that 'the plaintiff has also produced the xerox copy of
the same (power of attorney) before the competent Court, the
same is also in the record vide Mark 4/3. In view of the same in
C/SCA/2095/2021 ORDER
my humble opinion, presently the said Power of Attorney is not
required to be produced in its original form'. Thus, it appears
that since the xerox copy of power of attorney in question is
already produced on record vide Mark 4/3 by the original
plaintiffs, the learned Chamber Judge has very specifically
observed that, 'presently the said Power of Attorney is not
required to be produced in its original form', which appears to
have rightly observed. The learned advocate for the petitioners
has relied upon the provisions of O.11 R.12 of the CPC to submit
that the impugned order is against the provisions of same. For
ready perusal, O.11 R.12 of the CPC reads as under:
"12. Application for discovery of documents. - Any
party may, without filing any affidavit, apply to the Court
for an order directing any other party to any suit to make
discovery on oath of the documents which are or have
been in his possession or power, relating to any matter in
question therein. On the hearing of such application
the Court may either refuse or adjourn the same, if
satisfied that such discovery is not necessary, or not
necessary at that stage of the suit, or make such
order, either generally or limited to certain classes
of documents, as may, in its discretion be thought
fit:
Provided that discovery shall not be ordered when and so
far as the Court shall be of opinion that it is not necessary
either for disposing fairly of the suit or for saving costs."
emphasis supplied
4.1 Thus, from the aforesaid provision, it is abundantly clear
C/SCA/2095/2021 ORDER
that while any party can make application to the Court for an
order directing any other party to any suit to make discovery on
oath of the documents which are or have been in his possession
or power, relating to any matter in question therein, the Court
concerned, in its discretion, either refuse or adjourn the same, if
satisfied that such discovery is not necessary, or not necessary at
that stage of the suit, or make such order, either generally or
limited to certain classes of documents, as may, in its discretion
be thought fit. Thus, it is the Court concerned who is to decide as
to whether such discovery is necessary or not at that stage and
accordingly, may pass such orders, as in its discretion be
thought fit.
4.2 At this stage, it is apt to refer to the provisions of section
101 of the Evidence Act, 1872 (Burden of proof
), which provides that, 'whoever desires any Court to give
judgment as to any legal right or liability dependent on the
existence of facts which he asserts, must prove that those facts
exist. When a person is bound to prove the existence of any
fact, it is said that the burden of proof lies on that person'. Thus,
burden of proving a fact lies on a person who asserts such a fact.
4.3 Further, section 110 of the Evidence Act speaks about
burden of proof as to ownership, which says, 'when the question
is whether any person is owner of anything of which he is shown
to be in possession, the burden of proving that he is not the
owner is on the person who affirms that he is not the owner'.
4.4 Thus, it appears that whosoever has produced the copy of
the power of attorney is required to prove, in the secondary form
of evidence, that the same is not fraudulent, which, in the case
C/SCA/2095/2021 ORDER
on hand is the original plaintiffs.
4.5 Thus, from the preceding discussion and in the totality of
facts and circumstances of the case vis-a-vis aforesaid legal
position, in the considered opinion of the Court, the learned
Chamber Judge has committed no error, much less an error of law
and the impugned order suffers with no illegality, perversity
and/or arbitrariness, which requires interference at the hands of
this Court.
5. Accordingly, this writ petition fails and is accordingly,
dismissed in limine. However, in the facts and circumstances of
the case, there shall be no order as to costs.
5.1 It goes without saying that the petitioners - defendants
may rebut the evidence at an appropriate stage.
[ A. C. Joshi, J. ]
hiren
