Gujarat High Court

Shantilal Bhikhbhai Patel vs Navinbhai Ganpatbhai Parmar on 16 September, 2021

Bench: B.N. Karia

      C/SCA/10171/2021                                 ORDER DATED: 16/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 10171 of 2021
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                          SHANTILAL BHIKHBHAI PATEL
                                     Versus
                         NAVINBHAI GANPATBHAI PARMAR
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Appearance:
MR NILESH A PANDYA(549) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,10,11,12,13,14,2,3,4,5,6,7,8,9
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     CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 16/09/2021

                                 ORAL ORDER

1. Present petitioner who is the original defendant No.1 in

Special Civil Suit No.603 of 2017 pending before the Court of

learned Civil Judge, Sr. Division, Vadodara, has challenged the

order dated 21st June, 2020 passed below application Exh.85.

2. That issue involved in this petition is very small and

considering this dispute, this Court is not inclined to issue notice to

the respondents. Hence, no notice.

3. Heard learned advocate for the petitioner.

4. Learned advocate for the petitioner vehemently submits that

in the suit filed by the plaintiff, sale deed, which is exhibited with

respect to property mentioned in the plaint by the plaintiff, was not

binding to them and till all the properties are not partitioned, all the

defendants are restrained from transfering the said property. That,

C/SCA/10171/2021 ORDER DATED: 16/09/2021

defendants were appeared in the suit and also filed their written

statement. They denied the contents of the plaint and prayed for

dismissal of the suit on various grounds mentioned in the written

statement as well as application for interim injunction. That, issues

were framed by the trial Court vide Exh. 40 and evidence of the

plaintiff No.1 was recorded on 10th April, 2019. That, plaintiff No.1

was cross-examined and it was over on 23 rd September, 2019. That,

suit was placed for further evidence of the plaintiffs i.e. respondent

Nos 1 to 4 and examination of chief on affidavit dated 21 st

November, 2019 was filed by the plaintiff No.2 which was similar

to deposition of the plaintiff No.1. Therefore, present petitioner -

defendant No.1 submitted one application vide Exh.85 and prayed

that considering the provisions of the Civil Procedure Code and

Indian Evidence Act, deposition given by plaintiff No.2 may be

discarded. That, application Exh.85 was rejected after hearing the

parties which is illegal and erroneous. It is submitted that the

conclusion arrived at by the trial Court are contrary to facts and

evidence of the case. That, observation of the trial Court that

evidence given by the plaintiff No.2 which has not delayed the

matter but to effective evidence is contrary to the facts of the case.

C/SCA/10171/2021 ORDER DATED: 16/09/2021

That, similar affidavit was produced by the plaintiff No.2 as given

by the plaintiff No.1 and therefore, plaintiff No.2 cannot be

permitted to give same evidence as it was already placed on record.

That, plaintiffs have tried to prolong the issue pending before the

learned trial Court. In support of his arguments, learned advocate for

the petitioner has relied upon the decision of Yashpal Sawhney Vs.

M/s. Gandotra Traders and others reported in AIR 1995

JAMMU AND KASHMIR 32 and requested to admit this petition

and quash and set aside the order dated 21.6.2021 passed below

Exh. 85 in SCS No. 603 of 2017.

5. Having heard learned advocate for the petitioner and the

documents produced on record, it appears that Special Civil Suit No.

603 of 2017 was filed by the respondents-plaintiffs before the Civil

Court at Vadodara for declaration and permanent injunction. On

receiving summons issued by the Court, present petitioner, who

happens to be defendant No.1, filed his written statement as well as

the objection of the application praying for interim injunction vide

Exh.9 dated 28th November, 2017. As per the contents of the

application submitted by defendant No.1 vide Exh.85, affidavit of

the plaintiff No.1 was produced on 10th April, 2019 and he was

C/SCA/10171/2021 ORDER DATED: 16/09/2021

cross-examined on 23rd September, 2019 . That, suit proceedings

were continued for recording further evidence of the plaintiff.

Meanwhile on 21st November, 2019, affidavit of the plaintiff No.2

was filed on record. As per the contention raised by defendant No.1

in his application, plaintiff Nos. 1 and 2 were the legal heirs of

Navinbhai Ganpatbhai Parmar. Statement of the chief-examination

of the plaintiff No.1 namely Vipulbhai Ganpatbhai Parmar was

similar to the statement of the chief-examination produced by the

plaintiff No.2, and therefore, considering the provisions of Civil

Procedure Code as well as Indian Evidence Act, affidavit in chief

examination produced by the plaintiff No.2 was requested to be

discarded by the Court. It is admitted fact that the suit was filed by

the respondent-plaintiff in the year 2007, written statement as well

as objection against the application for interim injunction were

submitted by the defendant No.1 on 28 th November, 2017.

Thereafter, issues were framed. Affidavit of the plaintiff No.1 was

produced on 10th April, 2019 and his cross-examination was over on

23rd September, 2019. Proceedings of the suit was continued for

further evidence of the plaintiff. Plaintiff No.2 filed his examination

in chief on oath on 21st November, 2019, after period of two months

C/SCA/10171/2021 ORDER DATED: 16/09/2021

approximately on completing the cross-examination of the plaintiff

No.1. As per submission made by learned advocate for the petitioner

that affidavit of the plaintiff No.2 was similar to the affidavit of the

plaintiff No.1 and therefore, his evidence should be discarded under

the provisions of Civil Procedure Code as well as Indian Evidence

Act. It is pertinent to note that none of the affidavits of plaintiff

Nos. 1 and 2 filed by them are produced on record by the petitioner

while filing this petition. In absence of any of the affidavit filed

before the trial Court by the plaintiff Nos. 1 and 2, it would be

difficult to go through the contents or the averments made by them

before the trial Court in the suit proceedings. Further, there was no

delay on the part of the plaintiff in the proceedings of the suit, as

first affidavit of plaintiff No.1 was filed on 10 th April, 2019. His

cross-examination was over on 23.9.2019. Within a period of two

months, plaintiff No.2, also filed his affidavit on 21st November,

2019 and meanwhile, application vide Exh.85 was submitted by

defendant No.1-present petitioner for discard the affidavit of

plaintiff No.2. After all it is the duty of the plaintiffs to prove their

case through their evidence oral or documentary as the case may

be. Hon'ble Jammu and Kashmir High Court, in the judgment,

C/SCA/10171/2021 ORDER DATED: 16/09/2021

relied upon by the petitioner, in case of Yashpal Sawhney (Supra)

has observed as under:-

"Courts have not only to dispense justice but do the same in a substantial manner. The growing concept of substantial justice is a laudable feature of our judicial system. If that be so then in every case when an application is made in terms of Order 16, Rule 1, C.P.C. court has to apply its mind and restrict the number of witnesses to an extent which should cater to the requirement of the case. The approach of the court should neither defeat the ends of justice nor cause undue delay in litigation. The court should not leave the number to the whims and fancies of the party producing the witnesses. Because a party interested in causing delay in a suit shall in that case be granted a premium for misusing the law of procedure. In determining number of witnesses a court should in my opinion, take into account the following guidelines :--

(a) Nature of the litigation;

(b) Number of issues required to be proved;

(c) Nature of the issues.

(d) The fact as to on whom has the onus been laid.

(e) The speficied purpose for which a particular witness is required to be produced. The party seeking to produce a witness is also required to specify the purpose for which the witness is proposed to be produced. Thus, detailing out of a purpose is a necessary requirement and in absence of that the court will be within its limits to disallow summoning of that witness.

7. Order 16, Rule 1 does not lay-out the number of witnesses that a party in a suit can produce. That makes it clear that the legislature left this field to the courts of law who are seized of the matter in which witnesses :are proposed to be examined. A question arises as to whether the legislature can mean, and the courts can allow as many witnesses to be called by the court as a litigant chooses to. In my opinion if the answer is yes then courts will be put at the mercy of litigants and the chain of litigation will never end. If the answer is yes, then in a case like this, even if the defendant-respondent would like to summon numberless witnesses, no body can stop him. That means a civil suit cannot normally be decided during the lifetime of the suiter; That never can be the policy of laws. The first duty cast upon the courts is to control the proceedings. We with the advancement of our country and the growing complexities in our socio-economic pattern, have to address ourselves to the requirement of the time. Our law has to be real and meaningful. Courts have not only to dispense justice but do the same in a substantial manner. The growing concept of substantial justice is a laudable feature of our judicial

C/SCA/10171/2021 ORDER DATED: 16/09/2021

system. If that be so then in every case when an application is made in terms of Order 16, Rule 1, C.P.C. court has to apply its mind and restrict the number of witnesses to an extent which should cater to the requirement of the case. The approach of the court should neither defeat the ends of justice nor cause undue delay in litigation. The court should not leave the number to the whims and fancies of the party producing the witnesses. Because a party interested in causing delay in a suit shall in that case be granted a premium for misusing the law of procedure. In determining number of witnesses a court should in my opinion, take into account the following guidelines :--

(a) Nature of the litigation;

(b) Number of issues required to be proved;

(d) The fact as to on whom has the onus been laid.

(e) The speficied purpose for which a particular witness is required to be produced.

(A) In order to control the proceedings the court, in the first instance, has to take into account the nature of the proceedings. In a matrimonial case or in a suit for eviction or any other like matter, if, as already observed, the choice of number of witnesses is left to a litigant then the court will be abdicating its legitimate obligations. In a case like the one in hand it will always be the endeavour of the defendant to protract litigation. He should not be allowed to do so by aimlessly furnishing an unending list of witnesses who belong to far- flung areas.

If that is done then these witnesses under the prevailing circumstances cannot be served for years together. Their examination by the court will be impossible for years to come. In that way the basis of the suit shall be knocked out.

(B) The second consideration will be as to how many issues are required to be proved. This may distinctify one matter from the other. In a case where parties are at variance on a number of issues, probably number of witnesses to be examined may be larger than in a case where number of issues is limited.

(C) Third consideration is as to what is the nature of the issues. In some cases the issues may be complicated. There the number of witnesses shall invariably be larger than in a case where the issues are simple.

(D) The fourth consideration is as to upon whom is the onus placed by the court. The number of witnesses to be produced by a party, upon whom burden of proof has been placed may be larger than the party who has only to lead evidence in rebuttal. The last but not the least of the considerations is that a party making an application under Order 16, Rule 1 and desirous of obtaining sommons for a person shall, in his application, state the purpose for which the

C/SCA/10171/2021 ORDER DATED: 16/09/2021

witness is proposed to be summoned. Taking a que from the words used in Order 16, Rule 1(2), C.P.C. it will be pertinent to observe that the same relate to singularity of the noun 'witness' or 'person'. The words used are "for the attendance of any person". The grammer of the sub-rule suggests that against every person supposed to be called as a witness, the purpose of his production should be shown. Not that a long list of witness will be detailed out after stating that some questions are to be proved. Sub-rule (2) has to be read with sub-rule (1) in a conjective manner, where two purposes of calling witnesses are contemplated. These purposes are giving evidence or producing documents. Reading Sub-rules (1) and (2) together it will be safe to hold that against every witness, the party proposing to call that witness has to indicate as to for what purpose is he proposed to be called. This provision of law makes room for a prior information of the witness to come prepared for making deposition in the court or producing documents.

6. Here, there is no question to permit the plaintiff to examine

number of witnesses as per their choice. Plaintiff No.2 was one of

the plaintiffs in the suit proceedings and no other witnesses were

requested to be examined on their side at belated stage.

Immediately after completing the cross-examination of plaintiff

No.1, within period of two months, subsequent affidavit was filed by

the plaintiff No.2. Here, there is no question of delay the

proceedings of the suit filed by the plaintiff. Considering the

principle laid down by the Hon'ble Jammu and Kashmir High Court

in case of Yashpal Sawhney (Supra), facts of the present case is

quite different then the facts shown in the judgement relied upon by

the learned advocate for the petitioner, and therefore, it would not