Gujarat High Court
Habib Bhai Nasirbhai Parbadiya vs Ahmed Bhai Kasambhai Sunasara on 10 November, 2022
Bench: Nikhil S. Kariel
C/SCA/21201/2022 JUDGMENT DATED: 10/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21201 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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HABIB BHAI NASIRBHAI PARBADIYA
Versus
AHMED BHAI KASAMBHAI SUNASARA
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Appearance:
DHANESH R PATEL(8226) for the Petitioner(s) No. 1
MR MAKBUL I MANSURI(2694) for the Respondent(s) No.
1,10,2,3,4,5,6,7,8,9
MS SABINA M MANSURI(3631) for the Respondent(s) No.
1,10,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 10/11/2022
ORAL JUDGMENT
1. Heard learned Advocate Mr.B. S. Raju appearing with learned Advocate
C/SCA/21201/2022 JUDGMENT DATED: 10/11/2022
Mr.Dhanesh Patel for the petitioner and learned Advocate Mr.Makbul
Mansuri for the respondents.
2. Issue Rule returnable forthwith. Learned Advocate Mr.Mansuri waives
service of notice rule for the respondents. With the consent of the
learned Advocates for the respective parties, the matter is taken up for
final hearing forthwith.
3. By way of this petition, the petitioner has challenged an order dated
15.9.2022 passed by the learned Principal Sr. Civil Judge, Palanpur
below Exh.55 in Regular Civil Suit No.16 of 2020, whereby the
application preferred by the present petitioner for placing certain
documents on record in support of the written statement has been
rejected.
4. Learned Advocate Mr.Raju for the petitioner would submit that as a
matter of fact, while the present petitioner had preferred his written
statement within reasonable time, the reason for not tendering the
documents in support of the written statement at the relevant point of
time was, as mentioned in the application at Exh.55 that, since the issue
related to an Easementary Right/Right of way, the parties involved were
trying to work out a settlement and whereas since ultimately such
settlement could not be arrived at, the present petitioner had intended to
tender the documents in support of his written statement. Learned
Advocate Mr.Raju would submit that the learned Trial Court has only
given a reason that the application for submitting the documents has
been given after a long time and whereas the learned Trial Court has not
appreciated the contentions of the petitioner herein that the documents at
the relevant point of time had not been submitted on account of the
parties attempting to settle the dispute. Learned Advocate Mr.Raju in
C/SCA/21201/2022 JUDGMENT DATED: 10/11/2022
support of his submissions would rely upon the decision of the Hon'ble
Apex Court in case of Sugandhi (Dead) By Legal Representatives and
Anr. Vs. P. Rajkumar Represented by His Power Agent Imam Oli,
reported in (2020) 10 SCC 706. Learned Advocate would also rely
upon the decision of the Hon'ble Apex Court dated 17.5.2022 in Civil
Appeal No.4096 of 2022 (Levaku Pedda Reddamma & Ors. Vs.
Gottumukkala Venkata Subbamma & Anr.). Learned Advocate,
relying upon the said decisions of the Hon'ble Apex Court, would
request this Court that the learned Trial Court having gravely erred in
not granting the application of the petitioner for tendering documents in
support of his written statement, this Court may set aside the said order
and permit the present petitioner to tender the documents as requested
for.
5. This petition is vehemently objected to by the learned Advocate
Mr.Mansuri on behalf of the original plaintiff. Learned Advocate
Mr.Mansuri would submit that the reason given by the learned Trial
Court in not accepting the application preferred by the petitioner does
not suffer from any infirmity, more particularly since it appears from the
order itself that the present petitioner had submitted his written
statement on 13.10.2021 and approximately 11 months thereafter on
2.9.2022 the application at Exh.55 for tendering documents in support of
written statement had been given.
6. To a pointed query, learned Advocate Mr.Mansuri would fairly submit
that indeed the parties had attempted to settle the dispute and whereas
the entire village had tried to prevail upon both the parties to try and
arrive at an amicable solution. Learned Advocate Mr.Mansuri would
further submit that in any case, if this Court were to consider and allow
the present petition, then suitable cost may be imposed upon the original
C/SCA/21201/2022 JUDGMENT DATED: 10/11/2022
applicant.
7. Heard learned Advocates for the parties, who have not submitted
anything further.
8. The main ground raised by the learned Advocate for the petitioner is that
at the relevant point of time, since the parties were attempting to settle
the matter, therefore, in spite of the fact that the written submission
having been filed well within the time limit, the documents in support of
the written statement had not been filed. Learned Advocate Mr.Raju for
the petitioner has relied upon the decisions of the Hon'ble Apex Court
as referred to herein above, whereby the Hon'ble Apex Court has inter
alia observed that if a good cause is shown by the defendant for not
producing the documents, which ought to have been produced along
with the written statement, then such application ought to have been
allowed. In both the decisions, the Hon'ble Apex Court has inter alia
reiterated the proposition that there is no straight-jacket formula and the
rules of procedure are hand-maiden of justice and should be
implemented to achieve the ends of justice and, therefore, even if there
is a delay, the Trial Court should have imposed some cost, rather than
declining the production of document itself.
9. Having regard to the law laid down by the Hon'ble Apex Court and
having regard to the facts and circumstances of the case, where it is
apparent that the parties, after filing of the suit, had at the first instance
attempted to settle the dispute inter se and whereas the same being the
reason forth coming for not producing the documents on record along
with the written statement, in the considered opinion of this Court, as a
reasonable cause for non-production of the documents along with the
written statement having been made out, the present petition deserves
C/SCA/21201/2022 JUDGMENT DATED: 10/11/2022
consideration. At the same time, considering the fact that some
inconvenience would be caused to the original plaintiff, more
particularly since the documents are attempted to be produced after a
period of 11 months, appropriate cost is also required to be imposed.
10. Having regard to the same, the present petition is allowed, the
documents, which were to be produced along with the application at
Exh.55 in support of the written statement shall be taken on record by
the learned Trial Court. The present petitioner shall pay the cost of
Rs.5,000/- to the respondent herein within a period of two weeks from
today. Considering the facts and circumstances of the case, the learned
Trial Court shall attempt to hear and decide the application at Exh.5 for
interim injunction as expeditiously as possible, subject to other
pendencies.
11. The present petition is disposed of as allowed with the above
observations and directions. Rule is made absolute to the aforesaid
extent.
Sd/-
(NIKHIL S. KARIEL,J)
V.V.P. PODUVAL
