Bhavnaben Manharbhai Patel vs Thakor Kalidas Bariya
2021 Latest Caselaw 15811 Guj

     C/SCA/7279/2021                             JUDGMENT DATED: 07/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7279 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

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1     Whether Reporters of Local Papers may be allowed                 NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                         NO

3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                               NO

4     Whether this case involves a substantial question               NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       BHAVNABEN MANHARBHAI PATEL
                                  Versus
                          THAKOR KALIDAS BARIYA
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Petitioner(s) No. 1,2,3,4
MR RAHUL K DAVE(3978) for the Petitioner(s) No. 1,2,3,4
NOTICE SERVED(4) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

                             Date : 07/10/2021

                             ORAL JUDGMENT

1. By preferring this petition, petitioner has requested to quash

and set aside the order dated 10.03.2021 passed below Exh.84 by

C/SCA/7279/2021 JUDGMENT DATED: 07/10/2021

learned Principal Civil Judge, Waghodiya in Regular Civil Suit

No.24 of 2013.

2. Short facts of the present case may be referred as under:

Regular Civil Suit No.24 of 2013 was filed for declaration and

injunction of an element of document by the plaintiff before the

court of learned Principal Civil Judge, Waghodiya. The petitioner,

being original defendant, filed reply vide Exh.10 and thereafter,

vide Exh.61, an application was given by the present petitioner that

the document in question was false and forged one and requested

to forward the document to FSL for scientific examination. Learned

Civil Judge vide order dated 06.10.2017, was pleased to pass an

order of forwarding the document to the FSL. As per the order,

amount of Rs.25,000/­ was deposited by the petitioners on

07.11.2017 and thereafter the document was forwarded to the FSL

for its report, meanwhile the plaintiff filed an application Exh.84

with a prayer that opinion of the FSL not yet available and

defendant is failed to fill up the requirement and tried to prolong

the matter. Therefore, it was requested to recall the order passed

below Exh.61 dated 06.10.2017. The learned Trial Judge, after

hearing the parties, was pleased to allow the application Exh.84

vide order dated 10.03.2021. Hence, this petition.

C/SCA/7279/2021 JUDGMENT DATED: 07/10/2021

3. Heard learned advocate for the petitioner.

4. As per the endorsement of the Bailiff and Registrar cum

Nazir, Principal Civil Court, Waghodiya dated 13.07.2021, notice

of this petition was duly served to the respondent on 12.07.2021.

5. Cause list also shows that notice is duly served to the

respondent; however, nobody is appeared for and on behalf of the

respondent to contest this petition.

6. Learned advocate appearing for the petitioner submits that as

per the order dated 06.10.2017 passed below Exh.61, necessary

procedure was carried out by the present petitioner and an amount

of Rs.25,000/­ was deposited before the court immediately. That

document in question was also forwarded to the FSL for

verification. That on 04.10.2018, petitioner has also produced

samples of signatures as required and pursis was passed vide

Exh.76. That the letter dated 31.12.2018 was also written by the

court at Waghodiya and communication was carried out with the

FSL on 21.01.2019. It was further submitted that on 27.05.2019,

one another letter was written by the court reminding the issue to

the FSL. That, vide letter dated 22.02.2021, the papers were

returned for proper compliance by FSL. That the court below,

instead of passing order for proper compliance, recalled the order

C/SCA/7279/2021 JUDGMENT DATED: 07/10/2021

dated 06.10.2017 passed below Exh.61. That the order in nature of

review of the previous order is not permissible in the eyes of law.

That communication was continued with the office of the FSL and

the court concerned and petitioner has complied with the order by

giving the signature and depositing the amount. There was no fault

on the part of the present petitioner in complying with the order

passed below Exh.61. Hence, it is requested by learned advocate for

the petitioner to quash and set aside the order passed below Exh.84

recalling the previous order passed below Exh.61 dated

06.10.2017.

7. Having heard learned advocate for the petitioner and

contents of the suit as well as the impugned order, it appears that

in Regular Civil Suit No.24 of 2013, the defendant produced the

original sale deed No.559 of 2004 and requested to forward the

said document to FSL for opinion of the hand writing expert.

Objections were also filed by the plaintiff and after hearing both

the parties, the learned Civil Court was pleased to pass an order to

forward the original registered sale­deed No.559 of 2004 produced

at Mark 64/1 to the hand writing expert of the FSL, Gandhinagar.

The defendants were also directed to deposit Rs.25,000/­ by way of

cost. It was further directed to produce the samples of their

C/SCA/7279/2021 JUDGMENT DATED: 07/10/2021

signatures on other natural documents for compliance of the order.

The said documents were also ordered to be forwarded to the hand

writing expert. Thereafter, it appears that on 07.11.2017, petitioner

deposited an amount of Rs.25,000/­ before the Court as per the

order passed below Exh.61. They have also given their samples of

signatures for forwarding to the FSL on 04.10.2018. A pursis in

respect of compliance of order was also filed by the petitioner vide

Exh.76. The letter was written by the Civil Court, Waghodiya to the

FSL on 31.12.2018. The FSL also responded by the communication

dated 21.01.2019. It also appears from the document produced on

record that on 27.05.2019, another letter was written by the Civil

Court at Waghodiya to the FSL. Further communication was also

carried out and FSL wrote one another letter dated 12.09.2019.

The Civil Court also reported on 11.02.2021. Thereafter on

22.02.2021, a letter was received from the FSL and returned the

papers for proper compliance. There was no compliance from the

Civil Court. Meanwhile an application vide Exh.84 was filed on

19.02.2021 stating that there was no compliance of the previous

order dated 06.10.2017 as required by the FSL, and therefore, the

proceedings were delayed. It was requested to recall the order

passed below Exh. 61 and proceed the matter accordingly. Learned

C/SCA/7279/2021 JUDGMENT DATED: 07/10/2021

Judge was pleased to allow the application vide order dated

10.03.2021. It appears that after passing the order below Exh.61 on

06.10.2017, the present petitioner has complied with the order by

depositing an amount of Rs.25,000/­ on 07.11.2017. They have

also produced their samples of signatures on 04.10.2018 for

forwarding to the FSL, they have also 8 passed pursis vide Exh.76.

Civil Court has also written a letter to the FSL on 31.12.2018 and

another letter was written by the Civil Court on 27.05.2019, FSL

also responded by communication dated 21.01.2019, FSL had also

written letter dated 12.09.2019. Civil Court has also reported back

on 11.02.2021, and thereafter, on 22.02.2021, a letter was issued

by the FSL returning the papers for proper compliance. Instead of

compliance as requested by the FSL in its letter dated 22.05.2021,

learned Civil Judge shockingly allowed the application Exh.84 in a

hasty manner vide order dated 10.03.2021. Learned Judge failed to

examine the correspondence carried out between the FSL and

office of the Learned Principal Civil Judge, Waghodiya as well as

the compliance made by the petitioners. Prima facie, it appears that

the order passed by learned Principal Civil Judge, Waghodiya

below Exh.84 dated 10.03.2021 allowing the application Exh.84 in

a nature of recalling the previous order passed below Exh.61 dated

C/SCA/7279/2021 JUDGMENT DATED: 07/10/2021

06.10.2017 appears to be illegal and erroneous, and therefore, it

requires to be quashed and set aside.

8. Present petition is hereby allowed. The order passed below

Exh.84 by learned Principal Civil Judge, Waghodiya dated

10.03.2021 in Regular Civil Suit No.24 of 2013 is hereby quashed

and set aside. Notice is discharged.

(B.N. KARIA, J) SUYASH