Lakshmiben Purshottambhai Amin ... vs Govindbhai Jivabhai Patel
2022 Latest Caselaw 10342 Guj

       C/SCA/4287/2022                                      ORDER DATED: 23/12/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4287 of 2022
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
              In R/SPECIAL CIVIL APPLICATION NO. 4287 of 2022
                                   With
     CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 2 of 2022
              In R/SPECIAL CIVIL APPLICATION NO. 4287 of 2022
========================================================
 LAKSHMIBEN PURSHOTTAMBHAI AMIN D/O MANGALBHAI DESAIBHAI
                         PATEL
                          Versus
                 GOVINDBHAI JIVABHAI PATEL
========================================================
Appearance:
MR. KSHITIJ P VAKIL(7197) for the Petitioner(s) No. 1,2,3,4
 for the Respondent(s) No. 5,6,6.8,7
MR PARTHIV B SHAH(2678) for the Respondent(s) No. 3,4
NOTICE SERVED BY DS for the Respondent(s) No.
1,2,5.1,5.2,5.3,5.4,5.5,6.1,6.2,6.3,6.4,6.5,6.6,6.7,7.1,7.2,7.3
========================================================

     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                   Date : 23/12/2022

                                    ORAL ORDER

1. Heard learned Advocate Mr. Kshitij P. Vakil on behalf of the petitioners and learned Advocate Mr. Parthiv B. Shah on behalf of the respondents no. 3 and 4. Though served the other respondents have chosen not to appear.

2. By way of this petition, the petitioners-original plaintiffs have challenged an order dated 12.10.2021 passed below Exh. 109, Exh. 110 and Exh. 112 in Regular Civil Suit No. 3527 of 2015 by the learned 27 th Additional Senior Civil Judge, Vadodara.

3. Learned Advocate Mr. Vakil on behalf of the petitioners would

C/SCA/4287/2022 ORDER DATED: 23/12/2022

submit that three different applications had been preferred by the original plaintiffs namely Exh. 109 praying for production of documents more particularly for the purpose of cross-examining defendant no.3, Exh. 110 for the purpose of joining the third party as defendant in the suit property and Exh. 112 for appointment of a Court Commissioner for drawing panchnama of the suit property. Learned Advocate would submit that the learned Civil Court without appreciating the contentions of the petitioners- original plaintiffs had rejected the said applications, which were necessary for the purpose of arriving at a just conclusion by the learned Civil Court in the suit concerned and having regard to the same learned Advocate would request this Court to interfere with the order concerned.

4. Learned Advocate Mr. Vakil on behalf of the petitioners would submit that the application below Exh. 109 was for production of document for cross-examination of the defendant no.3 and whereas the learned Civil Court ought not to have rejected the same. It is further submitted that Exh. 110 was for joining of a third party, and whereas it is submitted that such third party had purchased the suit property pending the suit and whereas such third party was required to be joined as a party defendant. It is submitted that without considering the application in its proper perspective learned Civil Court had rejected the same.

It is further submitted that application under Exh. 112 had been preferred for appointing a Court Commissioner to draw panchnama of the property more particularly according to learned Advocate Mr. Vakil as mentioned in the said application, construction was being carried out in the property by the purchaser in question. It is submitted that the learned Civil Court even without appreciating the request of the petitioners in its true

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spirit had rejected the said application also. Having regard to such submissions learned Advocate Mr. Vakil would request this Court to set aside the impugned order and to grant the prayers made in Exh. 109, Exh. 110 and Exh.112.

5. This petition is vehemently objected to by learned Advocate Mr. Parthiv Shah appearing on behalf of the defendants no. 3 and 4 - respondents no. 3 and 4 herein. Learned Advocate Mr. Shah would submit that no error whatsoever had been committed by the learned Civil Court more particularly according to learned Advocate Mr. Shah, the learned Civil Court had given cogent reasons for rejecting the applications, inasmuch as application below Exh. 109 had been rejected since no particulars weer mentioned in the said application, application below Exh. 110 had been rejected on the ground of res judicata and application below Exh. 112 had been rejected on the ground that the plaintiffs had established by cross- examination of defendant no. 3 that the third party has started construction on the suit property and whereas the learned Civil Court had also observed that a Court Commissioner's report could not be permitted for the purpose of creation of evidence. Having regard to the such submissions learned Advocate Mr. Shah would submit that no interference is called for and this Court may reject the present petition.

6. In rejoinder learned Advocate Mr. Vakil would submit insofar as Exh. 110 that while the learned Civil Court had inter alia rejected the said Exh. on the ground of res judicata and wheres according to learned Advocate, the aspect of res judicata would not come into play in the instant case more particularly since the order based upon which res judicata has been claimed, was passed in the very proceedings and whereas according to learned

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Advocate Mr.Vakil, principle of res judicata would not be attracted to orders passed in the said proceedings. Having regard to such submissions, learned Advocate Mr. Vakil would request this Court to allow the present petition.

7. Heard learned Advocates for the parties who have not submitted anything else and perused the documents on record.

8. As noted herein above by way of the impugned order dated 12.10.2021, the learned Civil Court was deciding three separate applications and whereas insofar as this Court is concerned, this Court deems it expedient to discuss and decide each of the applications separately;

[1] Exh. 109 By way of the said exhibit, the plaintiff had sought to produce certain documents for referring the same at the stage of cross-examination of defendant no.3.

This Court is in agreement with the order passed by the learned Civil Court rejecting such application more particularly since it appears, as noted by the learned Civil Court that the said application is totally vague and bereft of any particulars. While the original plaintiffs had sought permission to produce documents for the purpose of cross-examining the defendant no. 3 but at the same time, what would be relevant here is that the plaintiffs in the said application have not mentioned any particulars with regard to the document which they seek to produce and the purpose of production of such documents i.e. the relevance of the said document with the issue on hand. The plaintiffs, if they wanted to rely upon any particular document for the purpose of cross-examination of the defendant no.3, in the considered opinion of this Court, was required to specifically mention the details of such documents and whereas the plaintiff, also required to mention the

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purpose i.e. the relevant purpose for which the document was sought to be produced. That in a suit proceedings while the parties are at liberty to produce documents which they seek to rely upon, more particularly as per the procedure envisages in Order 7 Rule 14 or Order 8 Rule 1A of the Code of Civil Procedure, as the case may be and whereas in the instant case, more particularly when the plaintiffs had filed this closing purshis after leading evidence, it was incumbent upon the plaintiff to have stated the particulars and relevancy of such documents. Omnibus /general applications, without any specific particulars, are not required to be entertained and whereas in the considered opinion of this Court Exh. 109 had rightly been rejected by the learned Civil Court.

[2] Exh. 110 By way of Exh. 110, the original plaintiffs- petitioners herein were seeking to join third party as defendant in the suit proceedings more particularly according to the plaintiffs, the third party having purchased the suit property during the pendency of the suit.

It appears that the present plaintiffs had preferred application Exh. 43 with the very selfsame prayer and whereas it also appears that Exh. 43 had been rejected by the learned Civil Court vide order an dated 19.02.2019. It also appears that the plaintiff had not challenged the said order and had preferred Exh. 110 with the very selfsame prayer. Learned Civil Court vide the impugned order had been pleased to reject the said application on the ground of principles of res judicata and whereas learned Advocate for the petitioners has contended that the bar of res judicata under Section 11 of the Code of Civil Procedure would not be applicable with regard to an order passed in the very selfsame proceedings.

In the considered opinion of this Court, such a contention taken by learned Advocate being contrary to the position settled by the Hon'ble

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Supreme Court, such contention cannot be countenanced, more particularly the issue not being res integra. It appears that the Hon'ble Supreme Court in case of Y.B. Patil and ors vs Y.L. Patil reported in 1976 (4) SCC 66, at paragraph no. 4 had inter alia laid down the law that principles of res judicata can be invoked not only in subsequent proceedings but they also get attracted in subsequent stage of the same proceedings. According to the Hon'ble Supreme Court once an order made in the course of proceeding becomes final, it would be binding on subsequent stage on that proceedings.

Relevant observations of the Hon'ble Supreme Court at paragraph no. 4 of the decision hereinabove is quoted hereinbelow for benefit:

"4.....It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding."

The Hon'ble Apex Court in a recent decision in case of S.

Ramachandra Rao vs. S. Nagabhusan Rao & Ors.-2022 SCC online SC 1460 has inter alia reiterated that the doctrine of res judicata is attracted not only in separate subsequent proceedings but also at subsequent stage of the same proceedings. In paragraph no. 31 of the said judgment being relevant for the present purpose, is quoted hereinbelow for benefit:

"31. For what has been noticed and discussed in the preceding paragraphs, it remains hardly a matter of doubt that the doctrine of res judicata is fundamental to every well regulated system of jurisprudence, for being founded on the consideration of public policy that a judicial decision must be accepted as correct and that no person should be vexed twice with the same kind of litigation. This doctrine of res judicata is attracted not only in separate subsequent proceedings but also at the subsequent stage of the same proceedings. Moreover, a binding decision cannot lightly be ignored and even an erroneous decision remains binding on the

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parties to the same litigation and concerning the same issue, if rendered by a Court of competent jurisdiction. Such a binding decision cannot be ignored even on the principle of per incuriam because that principle applies to the precedents and not to the doctrine of res judicata."

From the aforesaid decision of the Hon'ble Supreme Court, it clearly appears that the bar of res judicata as envisaged in Section 11 of the Code of Civil Procedure is inter alia attracted also to prior orders in the said proceedings. Having regard to the law laid down by the Hon'ble Supreme Court as noted hereinabove and since it is undisputed that application Exh. 43 had been preferred with the very selfsame prayers as in Exh. 110 and same having been rejected, principle of res judicata would get attracted and the plaintiffs would be barred from preferring a subsequent application for the very selfsame relief. For such reason in the considered opinion of this Court no interference is called for even insofar as the decision of the learned Civil Court on the said aspect.

[3] Exh. 112.

By way of the said exhibit, the petitioners were requesting the learned Civil Court to appoint a Court Commissioner more particularly for drawing a panchnama of the property upon which construction was taking place as per the plaintiffs themselves.

At the outset it would be required to be noted that the suit preferred by the plaintiffs i.e the petitioners herein, was inter alia praying for a declaration that the plaintiffs are co-owners of the suit property and whereas a sale-deed dated 25.06.1965 was also challenged. It appears that there was no dispute with regard to boundaries of the property in question. It also appears as per the finding of the learned Civil Court that the plaintiff had been able to establish at the stage of cross-examination that the third party had started construction upon the property. Under such circumstances, to

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this Court, it does not appear that the learned Civil Court may have committed any error whatsoever. While Order 26 Rule 9 of CPC inter alia envisages power available with the Court to direct local investigation it is also by now settled by decisions of this Court that the Court Commissioner could not have been appointed for creating evidence in favour of either party.

It also appears that when there was no dispute with regard to any overlapping boundary of the subject suit property and whereas since the plaintiffs had prayed for a declaration and whereas since the suit itself was at the final /concluding stages more particularly after the plaintiff had led his evidence, therefore in the considered opinion of this Court, no error appears to have been committed by the learned Civil Court while passing the impugned order.

At this stage this Court seeks to rely upon decision of the Hon'ble Supreme Court Apex Court in case of M/S Garment Craft vs Prakash Chand Goel reported in 2022 (4) SCC 181, paragraph no. 15 of the said decision being relevant for the present purpose is quoted hereinbelow for benefit:

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.T he jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be

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exercised to ensure there is no miscarriage of justice".

The Hon'ble Supreme Court vide the said decision has inter alia laid down the law with regard to exercise of supervisory jurisdiction by this Court under Article 227 of the Constitution of India. The Hon'ble Supreme Court has inter alia observed that the High Court exercising supervisory jurisdiction does not act a Court of first appeal to re-appreciate or reweigh the evidence or facts. It is also observed by the Hon'ble Supreme Court that the High Court is not to substitute its decision on facts and conclusion as arrived at by an inferior court or tribunal. The jurisdiction of this Court is in the nature of correctional jurisdiction to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principles of law or justice. According to the Hon'ble Supreme Court power under Article 227 of the Constitution of Indian is to be exercised sparingly only in cases where either there is no evidence or findings are so perverse that such a conclusion ought not to have been arrived at. The Hon'ble Supreme Court has clarified this issue by laying down the law that discretionary relief must be exercised to ensure that there is no miscarriage of law. It would also be pertinent to mention here that the Hon'ble Supreme Court has also observed that if the final finding in an order is justifiable then the Court should not interfere as a normal course.

9. Considering the fact situation from the view point of the law laid down by the Hon'ble Supreme Court would appear that the impugned decision does not suffer fromeither violation of any fundamental principles of law or justice or that the final findings are perverse or that there is no evidence to justify the final finding. This Court has also noticed that the rejection of the present petition would not cause any miscarriage of justice whatsoever.

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10. Having regard to the above observations, discussions and conclusions, in the considered opinion of this Court, the impugned decision being a well reasoned order. without suffering from any flaws as set out by the Hon'ble Supreme Court and as noticed hereinabove by this Court even supported by the factual position, in the considered opinion of this Court, no interference is called for. Hence the present petition stands disposed of as rejected. Interim relief granted earlier stands vacated.

In view of the order passed in the main petition, civil applications would not survive. Hence civil applications stands disposed of.

(NIKHIL S. KARIEL,J) NIRU