Balbhadrasinh Raghuvirsinh Rana vs Nitaba Balbhadrasinh Rana
2021 Latest Caselaw 3909 Guj

         C/SCA/9941/2015                                     ORDER




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 9941 of 2015

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          BALBHADRASINH RAGHUVIRSINH RANA & 5 other(s)
                            Versus
                 NITABA BALBHADRASINH RANA
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Appearance:
MR ASHISH M DAGLI(2203) for the Petitioner(s) No. 1,2,3,4,5,6
ADVOCATE NOTICE SERVED(81) for the Respondent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                           Date : 08/03/2021

                             ORAL ORDER

1. This matter is taken up through video conference.

2. This petition has been filed by the petitioners with the following main prayers, which reads as under:

"(B) That the Hon'ble Court may be pleased to allow this Special Civil Application by issuing an appropriate writ, order or direction quashing and setting aside the order passed below Exh. 7 at Annexure-C, order below Exh. 71 rejected by order dated 02.05.2015 at Annexure - D and be pleased to allow the same as prayed for in the interest of justice.

(C) Pending admission hearing and final disposal of this petition, this Hon'ble Court may be pleased to grant stay as to execution, implementation and operation of the order passed below Exh. 71 dated 02.05.2015 and also be pleased stay further proceedings of Special Civil Suit No. 41 of 2009 (New Number R. C. S. 37 of 2012) and pending before teh Principal Senior Civil Judge, Limbdi in the facts and circumstances of the present case in the interest of justice."

3. Heard learned advocate Mr. Ashish Dagli for the petitioners. Though served but none has remained for the respondent.

             C/SCA/9941/2015                                        ORDER



4.    Rule.

5. The facts in nutshell of the case are that the petitioners are the original defendants before the Principal Senior Civil Judge, Surendranagar wherein the Special Civil Suit No. 41 of 2009 has been filed for seeking partition of the joint property and permanent injunction as well as declaration. The propety mentioned in the Schedule -A & B movable and immovable property. Further, various Misc. Applications were also filed for seeking interim orders. An application for seeking injunction Order 39 Rule 1 & 2 read with Section 151 of the Code of Civil Procedure was also filed. It appears that notice was not served to the petitioners and edorsement in the Rojkam is that proceedings are pending for service of summons. It further appears that an application for injunction was also rejected and it was kept pending about clarification with regard to service of the summons for a considerable long period. Thereafter, issues were framed, chief-examination is submitted by the plaintiff. That chief examination submitted by plaintiff at Exh. 19 and prayed for permitting them to file reply and to cross examine which was not entertained. That the petititioners have therefore earlier approached before this Court by way of filing a Special Civil Application No. 17310 of 2011 which came to be disposed of by this Hon'ble Court (Coram: Hon'ble Mr. Jusctice C. L. Soni) by order dated 02.02.2012. That the plaintiff had filed an application Exh. 71 to produce documents, as it is the claim of the plaintiff that the property is ancestral property and sought partition. That the petitioners intend to produce registered documents in respect of the property mentioned in Schedule - A attached to the plaint as in fact it was not new evidence, therefore, request was made to produce the documents on record. However, by a short order below Exh. 71 dated 02.05.2015 the application came to be rejected.Hence, this petition.

C/SCA/9941/2015 ORDER

6. The learned advocate for the petitioners has submitted that on 23.02.2021 this Court has passed following order, which reads as under:

"1. Heard learned advocate Mr. Apurva Jani for learned Advocate Mr. Ashish Dagli at length.

2. None has appeared for the respondent No. 1. This Court has also gone through the earlier proceedings wherein this Court has passed an order wherein notice was issued to respondent. The same is served but none has appeared. Therefore, this Court has decided to hear the petition for final disposal, since the matter touches the year 2018.

3. Reserved for order."

7. Having heard the arguments advanced by learned advocate for the petitioners and taking into consideration the facts and circumstances of the case, it appears that a very short issue involved in this petition is that present petitioner No.1 - original defendant No. 1 has given an application on 02.05.2015 to produce registered documents of the captioned property and the same is not new evidence but the learned trial Court has disallowed the application on the ground that as per the provisions under Order-8 Rule-1(a) of the CPC, the defendant has not produced any document at the relevant time though the same was in his possession, therefore, permission cannot be granted and hence the application was rejected, therefore the present petition is filed.

8. It is pertinent to note that earlier this Court (Coram: Hon'ble Mr. Justice C. L. Soni) by order dated 02.02.2012 in case of Balbhadrasinh Raghuvirsinh Rana Vs. Nitaba Balbhadrasinh Rana Guardian of Minor Omkarsinh in Special Civil Application No. 17310 of 2011 has passed a following oral judgment, which

C/SCA/9941/2015 ORDER

reads as under:

"1. Rule. Learned Advocate Mr. Nirad Buch who has appeared for respondent waives service of Rule. With the consent of Learned Advocates, matter is taken up for final hearing.

2. By way of this petition under Article 227 of the Constitution of India, the petitioner has challenged order dated 12.10.2011 passed by the learned Principal Senior Civil Judge Surendranagar below application Exh. 42 in Special Civil Suit No. 41 of 2009 whereby he learned Judge has ordered to hear and decide the application Exh. 42 only after the cross examination of the witness present on12.10.2011 is over.

3. Learned Advocate for the petitioner has made serious grievane in respect of the order dated 12.10.2011 and submitted that the learned Judge was not justified in keepin the applicatin Exh. 42 pending and in ordering to first cross examine the plaintiff-witness. Learned Advocate for the petitioner submitted that the application Exh. 42 was for the purpose of permitting the defendants to file written statement. Learned advocate for the petitioner further submitted that through more than four months have passed, still, the application has not been decided wit hte result that the petitioner was greatly prejudiced in putting forward his defence by way of written statement. Learned advocate for the petitioner submitted that before proceeding with the suit, for examination of witness in the suit, the application filed by the petitioner at Exh. 42 was required to be decided. Learned Advocate for the petitioner, therefore, urged that the order passed by the learned Judge is required to be quashed and set aside and the learned Judge is required to be directed to decide the application Exh. 42 first and then to proceed with the hearing of the suit including examination of witnesses.

4. Learned Advocate Mr. Buch submitted that the petitioner was responsible for not filing written statement in time. He submitted that the only intention on the part of the petitioner is to delay the proceedings of the suit. He would further submit that the learned Judge has committed no error in passing the order dated 12.10.2011. He would also submit that the examination of the witness has already commenced and on 12.10.2011, plaintiff had remained present for the purpose of cross examination. He, therefore, submitted that the learned Judge was justified in passing the order dated 12.10.2011 to see that the witness who had alreay remained

C/SCA/9941/2015 ORDER

present is cross examined and then application Exh. 42 could have been heard and decided. He therefore submitted that the learned Judge has committed no error in passing the order dated 12.10.2011 and therefore, this Court may not interfere in the order in question while exercising the powers under Article 227 of the Constitution of India.

5. I have heard the learend advocates for the parties. Learned advocate for the petitioner has placed on red the rojkam of hte suit in order to demonstrate that he was not served with the notice of the suit. He made attempt to point out that there was no delay on the part of the petitioner to file the written statement. It is his case that he came to know about the suit when he appeared through his advocate in Civil Misc. Application No. 26 of 2007. By drawing attention of ths Court to the rojkam, petitioner wanted to highlight that the he had made out ground for permitting him to file written statement at the belated stage. Be that as it may, this Court is not deciding the genuineness or otherwise of the ground for not filing the written statement by the petitioner but this Court finds that there is substance in the grievance made by the petitioner to the effect that when the petitioner had already preferred application on 12.10.2011 at Exh. 42 to permit the petitioner to file written statement, there was no reason to skip hearing the said application. It may be that the witnesss was present on 12.10.2011 for cross examination but that would not be ground for not deciding application Exh. 42 preferred by the petitioner. Under the circumstances, it appears that the learned Judge has failed to exercise the jurisdiction in not deciding the application Exh. 42 and passing order dated 12.10.2011 and keeping the application pending by putting pre-condition of examination of witnesses. Impugned order, therefore, cannot stand scrutiny of law and, therefore, order dated 12.10.2011 passed by the learned Judge is required to be quashed and set aside.

6. In view of the above, this petition is allowed. The order dated 12.10.2011 passed by the learned Judge is quashed and set aside. The learned Judge is directed to first decide application Exh. 42 and then to proceed with the hearing of the suit including examination of the witnesses. Rule is accordingly made absolute with no order as to costs."

9. It is observed that it was not reason to escape hearing of the said application for filing the written statement. It would be worthwhile to refer here Order -8 Rule-1(a) of the CPC, which read as under:

C/SCA/9941/2015 ORDER

"1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.--

(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.] (4) Nothing in this rule shall apply to documents--

(a) produced for the cross-examination of the plaintiff's witnesses, or

(b) handed over to a witness merely to refresh his memory."

10. It is true that the original defendant was requried to produce documents at the relevant time but prima-facie when the documents is not concocted or false and the same is registered wherein the interest of defendant is prima-facie made out case on the basis of the suit filed by Balbhadrasinh Raghuvirsinh Rana Vs. Nitaba Balbhadrasinh Rana Guardian of Minor Omkarsinh wherein the property is shown as an ancestral property upon such premises both the parties have right to adduce evidence and to prove accordingly. Both the parties shall get opportunity of rebuttal, if any, therefore, merely on the technical aspect i.e. on procedural aspect, if the permission to produce documents is not given, in that

C/SCA/9941/2015 ORDER

case, the petitioners may cause prejudice for his valuable rights, therefore, this Court is of the opinion that if one opportunity be given to the petitioners by imposing exemplary cost, then justice would be done. Further, as mentioned earlier though the notice was served but none is appeared for the respondent No. 1. Therefore, this Court is of the opinion that justice should be done on merits rather than on mere technicalities and on the basis of lack of procedural aspect, Accordingly, in the peculiar facts and circumstances of the case on hand, this petition requires favourable consideration, in the larger interest of justice.

11. In the backdrop as aforesaid, this petition is hereby allowed and the impugned order dated 02.05.2015 passed below application Exh. 71 by the learned Principal Senior Civil Judge, Limbdi is hereby set aside and the petitioners are permitted to produce documents with exemplary cost to be paid by the petitioners- original defendant to the original plaintiff. The learned trial Court concerned shall proceed with the matter without being influenced by the order of this Court and give opportunity of otherside for rebuttal of the same.

12. The petitioners are directed to deposit a sum of Rs.10,000/- (Ten Thousand Only) towards cost before the learned trial Court concerned within a period of four weeks from the date of this order and the respondent- original plaintiff is at liberty to withdraw the same. Rule is made absolute to the aforesaid extent.

(A. C. JOSHI,J) prk