Heirs Of Decd. Koli Mafaji Suraji ... vs Harijan Dhanabhai Harjibhai
2022 Latest Caselaw 7494 Guj

      C/SCA/16668/2022                         ORDER DATED: 30/08/2022




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 16668 of 2022
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          HEIRS OF DECD. KOLI MAFAJI SURAJI PARKHANJI
                               Versus
                  HARIJAN DHANABHAI HARJIBHAI
=======================================
Appearance:
MR VICKY B MEHTA(5422) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.3.1,1.3.2,1.3.3,1.3.4,1.3.5,1.4,2,3,4
 for the Respondent(s) No. 1,2,3
=======================================
     CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                         Date : 30/08/2022
                           ORAL ORDER

1. This application is filed under Article 227 of the

Constitution of India challenging the order passed by Principal

Civil Judge, Amirgadh in Regular Civil Suit No. 11 of 2010 below

Exhibits - 148, 149 and 152 dated 13.09.2021, whereby

applications given by the petitioners - plaintiffs on different dates,

claiming for issuing of witness summons to the Talati-cum-Mantri

of concerned gram panchayat, Surveyor of District Land Record

Office, for production of document and examining them to give

evidence in respect of those documents, came to be rejected,

reserving liberty to the petitioners - plaintiffs to file fresh

application if concerned authority denies to give such documents

to the plaintiffs after it being approached.

C/SCA/16668/2022 ORDER DATED: 30/08/2022

2. The petitioners - plaintiffs filed a suit for permanent

injunction claiming that the suit land is their ancestral property

and no other person has any right to interfere with their

possession. The said suit came to be filed in the year 2010.

3. Heard Mr. Vicky B. Mehta, learned advocate for the

petitioners - plaintiffs.

3.1. According to his submission, there is no restriction on

calling as a witness and examining any public officer to produce

even the public documents in view of Order XVI Rule 1 of the

Code of Civil Procedure, 1908 (hereinafter referred to as "the

Code").

3.2 He has further submitted that the documents are in

possession of the public authority and he can produce the same

and depose thereon. In support of his claim, he has relied on a

decision rendered by the Division Bench of this Court in Bharat

Heavy Electricals Limited v. Ineous Styrolution Limited,

rendered in Special Civil Application No. 20764 of 2018 dated

18.12.2019 to submit that under Order XVI Rule 1 of "the Code",

it is the right of a party at any stage of the suit to make an

application to the Court seeking summons be issued to a witness

either to give evidence or to produce documents.

       C/SCA/16668/2022                          ORDER DATED: 30/08/2022




3.3           In similar lines, he has relied on a decision of the

Supreme Court in the case of Ashok Sharma v. Ram Adhar

Sharma, reported in 2009 (11) SCC 41.

4. Having heard learned advocate for the petitioners and

going through the documents annexed with the petition along

with the impugned order, it is clear that the suit is filed for the

purpose of permanent injunction, claiming that suit property is in

their possession being ancestral property, since long. During the

course of suit, along with the plaint, petitioners - plaintiffs are

supposed to produce documents on which they rely in support of

the plaint. Not only that, the original documents are, under the

scheme of "the Code", supposed to be produced before the trial

commences. Here in this case, issues are framed and before the

issues are framed, petitioners - plaintiffs are supposed to produce

all those evidence in support of their case, which are more

particularly, public documents and copies thereof are easily

available to them even prior to the filing of the suit to support

their claim of possession. Not only that, they have not attempted

to get it from the public authorities before filing of the suit, nearly

after 9 years of the filing of the suit, that too, after framing of the

issues and their examination before the Court is over, have come

out with different applications with a view to further delay the

proceedings.

C/SCA/16668/2022 ORDER DATED: 30/08/2022

5. Looking at the Order XVI Rule 1 of "the Code", after

settlement of the issues, within 15 days thereof at best, list of

witnesses whom the party proposes to call either to give evidence

or to produce documents, is required to obtain summonses to

such persons for their attendance in the Court. Despite full

infraction of the said provision, the trial Court has while rejecting

their application, permitted them to make fresh application if

their demand before the public authority for such documents is

refused.

6. Once discretion is exercised by the trial Court in a

proper manner protecting interest of the party, I see no reason to

interfere in this petition under Article 227 of the Constitution of

India. The judgments relied on by the learned advocate for the

petitioners - plaintiffs, in view of the fact that suit is already filed

for permanent injunction based on their possession, which

plaintiffs are supposed to prove and those documents are easily

available, despite in possession of public authorities, it pertains to

their own land, as claimed by them, they were supposed to

produce the same along with the plaint, and therefore, in the

facts of this case, these decisions are not relevant at all.

Not only that, the impugned order came to be passed

on 13.09.2021 and it has been challenged nearly after a year

C/SCA/16668/2022 ORDER DATED: 30/08/2022

thereof, with a view to further delay the proceedings before trial

Court. Therefore also, this petition is not required to be

entertained.

Hence, this petition is rejected.

(UMESH A. TRIVEDI, J.) Raj