Gujarat High Court
Prafulbhai Motibhai Parekh vs Heirs And Lrs Gurusharan Barot on 3 January, 2022
Bench: Ashokkumar C. Joshi
C/SCA/6244/2021 JUDGMENT DATED: 03/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6244 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
=======================================
PRAFULBHAI MOTIBHAI PAREKH
Versus
HEIRS AND LRS GURUSHARAN BAROT
=======================================
Appearance:
MR APURVA R KAPADIA(5012) for the Petitioner(s) No. 1,2,3,4,5
for the Respondent(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 7,8,9
MR. MAULIK M SONI(7249) for the Respondent(s) No. 1.2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1.1,2,3,4,5,6
=======================================
CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 03/01/2022
ORAL JUDGMENT
1. This petition, under Article 227 of the Constitution of India,
is filed by the petitioners - original plaintiff Nos. 1, 4, 7, 8 and 10
in Regular Civil Suit No. 109 of 2005 challenging the order dated
C/SCA/6244/2021 JUDGMENT DATED: 03/01/2022
08.01.2020 passed by the learned Principal Senior Civil Judge,
Narmada at Rajpipa below application Exh. 263. By the said
application, the petitioners had prayed for reopening the right of
evidence of the petitioners - plaintiffs, which was closed vide
order dated 14.11.2019 passed in the said suit.
2. Rule, returnable forthwith. Learned advocate Mr. Maulik
Soni waives service for the respondents. With the consent of the
learned advocates for the respective parties, the matter is taken
up for final hearing today.
3. Heard, learned advocate Mr. Arpit Kapadia for the
petitioners - plaintiffs and learned advocate Mr. Maulik Soni for
the respondents.
3.1 The learned advocate for the petitioners submitted that the
learned trial Court, taking a very hyper-technical view of the
matter, rejected the application for reopening the right of
evidence of the petitioners, inasmuch as the Court has rejected
the said application only on the ground that earlier also, the right
of the petitioners was closed and reopened then, however, the
learned trial Court has failed to appreciate the fact that in the
interregnum, several applications for production of documents
were filed by both the sides, which were pending at the relevant
point of time and hence, the petitioners - plaintiffs could not
exercise their right to evidence/cross-examination. It is
submitted that the petitioners, who have a good case on merits,
are ready to cooperate in the trial. Further, rejection of the
application may jeopardize the right and interest of the
petitioners. Accordingly, in the said facts of the case, it is urged
that present petition may be allowed and the right to evidence of
C/SCA/6244/2021 JUDGMENT DATED: 03/01/2022
the petitioner may be reopened.
4. Per contra, the learned advocate for the respondents, while
opposing the present petitioner, submitted that earlier also, the
right to evidence of the petitioners was closed and only on a
condition to pay a cost of Rs.3,000/-, the right of the petitioners
was reopened vide order dated 16.04.2014, however, since the
petitioners did not pay the cost, their right was closed again.
Again, on an application (Exh. 190) preferred by the plaintiffs, the
right of the petitioners - plaintiffs was reopened vide order dated
23.06.2015, on the condition to pay a cost of Rs.4,000/-,
however, thereafter, also, since the petitioners - plaintiffs did not
turn up, again their right was closed and in the said set of facts
and circumstances of the case, present petition merits no
consideration and it is requested to be rejected.
5. Regard being had to the submissions advanced and
considering the material available on record, it appears that
earlier, on two occasions, the right of the petitioners to evidence
came to be closed by the trial Court. However, a perusal of the
record also reveals that in the interregnum, several applications
for production of the documents were also filed by the either side
and accordingly, as is submitted by the learned advocate for the
petitioners, the petitioners could not exercise their right to
evidence. It may be true that law helps to the vigilant, however,
simultaneously, it is also trite that justice seems to have been
done, rather than going into the mere technicality, when
otherwise justifiable cause is there. Accordingly, without going
deep into the merits of the case, this Court is of the opinion that
ends of justice would meet if one more opportunity is given to the
petitioners to exercise their right of evidence, however, with
C/SCA/6244/2021 JUDGMENT DATED: 03/01/2022
exemplary cost.
6. In the aforesaid backdrop, the petition succeeds and is
allowed accordingly. The order dated 08.01.2020, passed by the
learned Principal Senior Civil Judge, Narmada at Rajpipa below
application Exh. 263 in Regular Civil Suit No. 109 of 2005 is set
aside and the right of the petitioner - plaintiff of evidence is
reopened by way of last opportunity, in accordance with law, on
the condition that the petitioners shall deposit an amount of
Rs.1,000/- (Rupees One thousand only) towards cost before the
trial Court concerned within a period of 4 weeks, and the trial
Court shall permit the respondents to withdraw the same on
proper verification.
6.1 It is further directed that the petitioners shall cooperate in
the trial and shall not ask for unnecessary adjournments.
6.2 Rule is made absolute accordingly.
[ A. C. Joshi, J. ]
hiren
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