Gujarat High Court

Champalal Gulabji vs Manoharsinh Dilubha Vaghela on 9 September, 2021

Bench: B.N. Karia

     C/SCA/4298/2021                            ORDER DATED: 09/09/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 4298 of 2021
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                           CHAMPALAL GULABJI
                                 Versus
                       MANOHARSINH DILUBHA VAGHELA
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Appearance:
MR DEVANG LATHIGARA(2487) for the Petitioner(s) No. 1,2,3,4
MR HR LATHIGARA(423) for the Petitioner(s) No. 1,2,3,4
MR AMRISH K PANDYA(3219) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
                  Date : 09/09/2021
                   ORAL ORDER

1. Rule. Mr.Amrish K. Pandya, learned advocate waives

service of notice for and on behalf of respondent no.1.

2. Though notice was served upon respondent no.2, nobody

has appeared on behalf of respondent no.2.

3. By preferring this petition under Articles 16 and 19 of

the Constitution of India, the petitioners have challenged the

order dated 11.02.2021 passed by the learned Principal Senior

Civil Judge, Sanand below Exh.158 in Special Civil Suit

No.549 of 2017 requesting to permit him to examine the

witness.

4. Heard Mr.Devang Lathigara, learned advocate for the

petitioners and Mr.Amrish K. Pandya, learned advocate for

respondent no.1.

C/SCA/4298/2021 ORDER DATED: 09/09/2021

5. It was submitted by learned advocate for the petitioners

that Special Civil Suit No.549 of 2017 was filed by the plaintiff

- respondent no.1 herein before the Court of learned Principal

Senior Civil Judge, Ahmedabad (Rural) for specific

performance, declaration and permanent injunction. It was

further submitted that the petitioners are the original

defendants and have resisted the suit by filing a detailed

written statement at Exh.16 on 20.04.2014 containing that

they have not executed any such power of attorney in favour

of the defendant no.2 or anybody. That entire documents of

power of attorney relied upon by the plaintiff were bogus and

fraudulent. It was further submitted that during the course of

proceedings, the petitioners submitted two applications vide

Exhs.151 and 152 under Order 16 Rule 1 of the Civil

Procedure Code, 1908 (hereinafter referred to as "the CPC" for

short) for issuance of summons and both the applications

preferred by the petitioners were rejected vide order dated

01.02.2021 holding that list of the witnesses was not

produced by the petitioners as well as the permission of the

Court was not obtained as required Order 16 Rule 3 of the

CPC. It was further submitted that after the said order,

another application Exh.158 was submitted by the petitioners

C/SCA/4298/2021 ORDER DATED: 09/09/2021

giving detailed reasons why the witnesses were required to be

examined and power of attorney produced on record was not

original as it was not registered in the record of Notary and the

said fact was proved by the police inquiry in the criminal

complaint lodged against the respondent no.1. It was further

submitted in the application Exh.158 that the power of

attorney was executed on 30.03.2009 and Survey No.1044

was formed in the year 2012. That the permission was sought

for by the petitioners for examination of the witnesses and the

learned Judge, vide order dated 11.02.2021, rejected the

application holding that the earlier two applications at

Exh.151 and 152 were rejected and the present application

was similar, and therefore, earlier order cannot be reviewed. It

was further submitted that the impugned order passed by the

Court-below is contrary to the provisions of Order 16, Rules 1

and 3 of the CPC as there was no question of reviewing the

order previously passed below Exhs.151 and 152. That the

earlier applications were for issuance of summons while the

present application was for grant of permission to examine the

witness. That the learned Judge has made contrary

observation that the earlier applications at Exh.151 and

Exh.152 were for issuance of summons to the witnesses and

C/SCA/4298/2021 ORDER DATED: 09/09/2021

application Exh.158 was for the grant of permission to

examine the witness. It was further submitted that as the

power of attorney was not registered in the register of the

Notary and Survey No.1044 was came into existence in 2012

and allged power of attorney was executed in the year 2009

both the aspects go to the root of the matter and are important

to decide the entire suit. In support of his arguments, learned

advocate for the petitioners has relied upon the judgment in

the case of Mange Ram Vs. Brij Mohan and others reported

in 1988(1) G.L.H. 434 and submitted that witness can be

examined even without summons and without list of witnesses

produced on record. Hence, it was requested by learned

advocate for the petitioners to quash and set aside the order

dated 11.02.2021 passed by the learned Principal Senior Civil

Judge at Sanand below Exh.158 in Special Civil Suit No.549

of 2017 and to allow the application Exh.158.

6. Per contra, learned advocate for the respondent no.1 has

strongly objected the submissions made by learned advocate

for the petitioners and submitted that the mandatory

provisions under Order 16 Rule 1 of the CPC was not complied

with by the present petitioners. That the written statement

was filed by the defendants, but no list of witnesses was

C/SCA/4298/2021 ORDER DATED: 09/09/2021

produced at the relevant of time nor any document. It was

further submitted that the petitioners were aware of the fact of

the suit as well as power of attorney was executed in the year

2009, however, no defence was raised in the written

statement. That defence of the defendants was disclosed while

examination of the plaintiff, and thereafter, at a subsequent

stage, this application was submitted and previous two

applications at Exh.151 and 152 were already rejected by the

Court after hearing the parties and thereafter, by submitting

further application Exh.158, the petitioners tried to review

previous order, which is righlty denied by the Court-below

rejecting the application Exh.158. That no permission as

prayed for by the petitioners without any witness list as

required under Order 16 Rule 1 of the CPC can be granted, as

prayed for. It was further submitted that the learned Judge

has committed no error in dismissing the application Exh.158

preferred by the petitioners. It was further submitted that it

was clear negligence on the part of the petitioners to submit

the application Exh.158 after recording the evidence of the

plaintiff as well as defendant no.1. In support of his

arguments, learned advocate for the respondent no.1 has

placed reliance on the judgment in the case of Kumarpal

C/SCA/4298/2021 ORDER DATED: 09/09/2021

Nagardas Shah and others Vs. Shardaben Wd/o. Ratikant

Kasturchand Shah and others in Special Civil Application

No.6382 of 2004 in Paragraph No.7. Ultimately, it was

requested by learned advocate for the respondent no.1 to

dismiss the application.

7. Having heard learned advocates for the respective parties

and perused the documents produced on record, it appears

that after recording the evidence of the defendant no.1 in

Special Civil Suit No.549 of 2017, application Exh.158 was

submitted by the present petitioners as they were defendant

nos.1 to 4 in the suit. It is an admitted position that previous

two applications at Exh.151 and 152 were dismissed by the

Court observing that no prior permission was sought by the

present petitioners for issuance of summons. It further

appears that before submitting an application Exh.158 in the

suit, one witness list was produced vide Exh.157 that too after

recording the evidence of the defendants. In the application, it

was contended that no original power of attorney was

produced by the plaintiff along with the agreement to sell. It

was further contended that the said power of attorney was not

registered in the register maintained by Notary which was

disclosed in the police inquiry, and therefore, the power of

C/SCA/4298/2021 ORDER DATED: 09/09/2021

attorney was got up and fabricated. As per the contentions in

the application Exh.158, the power of attorney was executed

by Notary viz. Shri Bhalchandra B. Gandhi under his

signature and seal on 30.03.2009. If the register containing

the entry of the power of attorney would be produced on

record, clear chapter would be found before the Court. As the

power of attorney viz. Shri Bhalchandra B. Gandhi was

expired, register was maintained and kept by his daughter. It

was further submitted and contended in the application that

out of the suit property, Block No.16765, Account No.120 was

entered in the revenue record as Account No.1044 in 2012

after executing the power of attorney, and therefore, the power

of attorney was fabricated and created. The same contentions

were raised by the present petitioners in their written

statement filed in the suit, and therefore, request was made to

call the witness viz. Rupalben Sanjaykumar Shah and Talati-

cum-Mantri of Charsadvadi, Vasna, Ahmedabad. The Court

observed in its order that the previous applications Exhs.151

and 152 preferred by the present petitioners were dismissed

by the Court after hearing both the parties. It was further

observed that the same type of arguments were made by

deciding the present application Exh.158 and dispute was

C/SCA/4298/2021 ORDER DATED: 09/09/2021

raised. It was further observed that at the time of filing the

application Exhs.151 and 152 preferred by the present

petitioners, no application under Order 16 Rule 3 of the CPC

was submitted to permit the petitioners for examination of the

witness and straightaway application was given to issue

summons to the witness. It was further observed that while in

the present application i.e. Exh.158, permission was sought

for by the petitioners to examine the witness. As contents of

the previous applications Exh.151 and 152 preferred by the

petitioners were common as well as the prayer which were

dismissed vide an order dated 01.02.2021, if the prayer made

in the application Exh.158 would be considered, it would term

to be a review application which the Court has no power to

review the order. Hence, it was dismissed vide order dated

11.02.2021. No further reasons were assigned by the Court

while rejecting the application Exh.158. As provided under

Order 16 Rule 1, it is an admitted position that no witness list

was produced by the present petitioners when the issues were

settled. It is also an admitted position that after recording the

evidence of the defendant no.1, this third application Exh.158

was submitted by the present petitioners. As provided under

Rule 3 of Order 16 of the CPC, the Court may, for the reason

C/SCA/4298/2021 ORDER DATED: 09/09/2021

to be recorded, permit a party to call whether by summoning

through Court or otherwise, any witness, other than those

witness whose names appear in the list referred to in sub-rule

(1), if such parties show sufficient cause for the omission to

mention the name of such witness in the said list. In the

application Exh.158 preferred by the present petitioners,

sufficient reasons were shown for granting permission for the

production of the documents and examination of the witness.

Truly, in the previous application preferred by the present

petitioners Exhs.151 and 152, no reasons were assigned by

them permitting them to examine the witnesses or production

of the documents, as intended and therefore, only on this

ground previous two applications were dismissed by the Court

i.e. Exhs.151 and 152. In the third application, the petitioners

in detail gave sufficient reasons to permit them to examine

their witnesses. Considering the facts of the present case, if

the permission as sought for by the present petitioners would

be granted to them to examine their witnesses or for the

production of the documents, there is no possibility of causing

any prejudice to the respondents, however, the evidence of the

plaintiff is over as well as their cross-examination. Two

proposed witnesses, as intended by the petitioners to examine

C/SCA/4298/2021 ORDER DATED: 09/09/2021

in the suit, opportunity to cross-examination of the proposed

witness would certainly be available to the respondents

herein. It is the duty of the Court to find out the truth of the

dispute pending between the parties in the suit. Negligence, if

any, on the part of the present petitioners for not producing

the witness-list as provided under Order 16 Rule 1 of the CPC

and in the previous applications Exhs.151 and 152 not

assigning any reasons or sought permission for examination of

the witness cannot deny them to avail the remedy of filing

subsequent application Exh.158 with the reasons and seeking

permission to examine the witnesses. The Hon'ble Apex Court

in the case of Mange Ram Vs. Brij Mohan and others (supra)

has observed in Paragraph Nos.9,10 and 11 as under:

"9. where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of witness in the Court as directed by sub-rule (1) of Rule 1 and make an application as provided by Sub-rule (2) of Rule 1. But where the party would be in a position to produce its witnesses without the assistance of the court, it can do so under R. 1-A of O. 16 irrespective of the fact whether the name of such witness is mentioned in the list or not.

10. There is no inner contradiction between sub-rule (1) of R.1 and R.1-A of O.16. Sub-rule (3) of R.1 of O.16 confers a

C/SCA/4298/2021 ORDER DATED: 09/09/2021

wider jurisdiction on the court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under R.1-A and in such a situation the party of necessary has to seek the assistance of the Court under sub-rule(3) to procure the presence of the witness. Sub-R.1 and R.1-A operate in two difference areas and cater to two difference situations.

11. The analysis of the relevant provisions would clearly bring out the underlying scheme under O.16, R.1 and 1-A; and R.22 of the High Court Rr. would not derogate from such scheme. The scheme is that after the court framed issue which gives notice to the parties what facts they have to prove for succeeding in the matter which notice would enable the parties to determine what evidence oral and documentary it would like to lead, the party should file a list of witnesses with the gist of evidence of each witness the court within the time prescribed by sub-rule (1). This evidence filing of list is necessary because summoning the witnesses by the Court is a time consuming process and to avoid the avoidable delay in obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the Court. But if on the date fixed for recording the evidence, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under Sub-r. (1) of R.1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under R.1-A. The only jurisdiction the court has to decline to examine the witness is the one set out in proviso to S. 87(1) of Act No.43 of 1951 the discretion being confined to refusing to examine witnesses on the ground that

C/SCA/4298/2021 ORDER DATED: 09/09/2021

the evidence is either frivolous or vexatious or the evidence is led to delay the proceedings. Save this the court has no jurisdiction to decline to examine the witness produced by the party and kept present when the evidence of the party is being recorded and is not closed, and the court has no jurisdiction to refuse to examine the witness who is present in the court on the short ground that the name of the witness was not mentioned in the list filed under Sub-R. (1) of R.1 of O. 16 of the Civil Procedure Code."

8. This Court in Special Civil Application No.6382 of 2004

relied upon by learned advocate for the respondent no.1 has

observed in Paragraph No.7 as under:

"7. It is not the case of the petitioner No.3 that when he led the evidence, the evidence now sought to be produced, was not within his knowledge and could not be produced despite due diligence. The reason for non- production of such evidence at the relevant time is that it could not be produced due to inadvertence. Inadvertence is a form of negligence, therefore, non-production of the evidence sought to be now produced, is attributable to negligence and failure to produce such evidence because of inadvertence/negligence, is not a lawful ground to permit a party to lead additional evidence within the ambit and scope of Rule 17A of Order 18 of the Code as it stood before amendment."

9. In the cited case, the evidence which was sought to be

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produced was due to inadvertence, and therefore, it was

observed that negligence and failure to produce such evidence

because of inadvertence/negligence, is not a lawful ground to

permit a party to lead the additional evidence within the ambit

and scope of Rule 17-A of Order 18 of CPC as it stood before

amendment. Here the documents which were sought to be

produced and witnesses to be examined by the present

petitioners, the power of attorney and entry in the register

were not in the custody of the present petitioners. Considering

the facts of the present case, there is no possibility of causing