Jagdishbhai Parshottambhai ... vs Rukshmaniben Wd/O Javahar ...
2023 Latest Caselaw 2765 Guj

       C/SCA/5749/2023                                      ORDER DATED: 05/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 5749 of 2023

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              JAGDISHBHAI PARSHOTTAMBHAI PATEL
                            Versus
      RUKSHMANIBEN WD/O JAVAHAR RAMCHANDRA GURUBAXANI
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 05/04/2023
                                 ORAL ORDER

1. The present petition is filed by the petitioners by

challenging the impugned order passed dated 17.03.2023

passed below exhibit 258 in Regular Civil Suit No.82 of 2008

by the learned Addl. Civil Judge, Vadodara, whereby the

application filed by present petitioners under the provisions of

Order I Rule 1(A) of the Civil Procedure Code is rejected.

2. Heard learned advocate Mr. S.P. Majmudar with Mr.

Jay Shah, learned advocate for the petitioners.

3.1 He has relied upon the provisions of Order VIII Rule

1(A) of the C.P.C. and has submitted that if the document,

which is sought to be produced by the petitioners, was not

there at the time of filing of written statement in pursuant

C/SCA/5749/2023 ORDER DATED: 05/04/2023

to the provisions of order I rule 1(a) after obtaining leave of

the Court, the petitioner can produce such document at the

time of trial. He has drawn the attention of this Court

towards the averments made in the application at Exhibit

258 and more particularly, averments made at para 4 of the

application, and has submitted that this document is very

relevant to decide the controversy between the parties. He

has submitted that there is no bar to produce any document

even at the belated stage and though, now the trial is posted

for arguments of the parties.

3.2 He has heavily relied on the judgment of the Hon'ble

Apex Court in the case of Sugandhi Versus P. Raj Kumar

reported in (2020) 10 SCC 706, and has submitted that there

is no straight jacket formula and the Court should not reject

such application on hyper-technical ground, and more

particularly, when such document is necessary for arriving at

just decision in the suit.

3.3 He has further argued that the relevancy of the

document is required to be seen, which states that the

document is produced. He has further relied on the judgment

of the Uttarakhand High Court in the case of Jyoti Mehta

Versus Sandeep Verma and Another reported in 2021 SCC online Uttarakhand 1681.

C/SCA/5749/2023 ORDER DATED: 05/04/2023

3.4 He has further submitted that the plaintiffs in the suit

have already filed application under order VI rule 17 of the

C.P.C., which was rejected by the trial Court, against which

the plaintiffs have preferred the petition by way of special

civil application, which is pending before this Court, and

therefore also, no prejudice will cause to the rights of the

plaintiffs if such application is allowed.

4.1 I have considered the submissions made at the bar. I

have considered the provisions of order VIII Rule 1(A) of the

Civil Procedure Code, 1908, which reads as under:

"Order VIII Rule 1A.

Duty of defendant to produce documents upon which relief is

claimed or relied upon by him.--

(1) Where the defendant bases his defence upon a

document or relies upon any document in his possession or

power, in support of his defence or claim for set-off or

counter-claim, he shall enter such document in a list, and

shall produce it in Court when the written statement is

presented by him and shall, at the same time, deliver the

document and a copy thereof, to be filed with the written

statement.

(2) Where any such document is not in the possession

or power of the defendant, he shall, wherever possible, state

in whose possession or power it is.

C/SCA/5749/2023 ORDER DATED: 05/04/2023

(3) A document which ought to be produced in Court

by the defendant under this rule, but, is not so produced

shall not, without the leave of the Court, be received in

evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents--

(a) produced for the cross-examination of the plaintiff's

witnesses, or (b) handed over to a witness merely to refresh

his memory."

4.2 I have also perused the judgments, which are cited at

the bar in the case of (i) Sugandhi (supra), (ii) Nutan Corporation Versus Sunil Thakorbhai Mehta reported in 2009 (0) GLHEL-SC 222585.

4.3 On perusal of the impugned order, it transpires that

the trial Court has given cogent and convincing reasons by

discussing the provisions of law and the judgment cited at

the bar in detail in the context of the application filed by

the present petitioners under the provisions of Order VIII

Rule 1(A) of the C.P.C. From the bare perusal of the

application, it clearly transpires that the petitioners have not

given any explanation that why the document is not produced

at the time of filing of written statement and if the Court

has found in the impugned order that even from the

pleadings in the application and more particularly under

C/SCA/5749/2023 ORDER DATED: 05/04/2023

paragraph 6, which clearly transpires that the case of the

petitioners does not deserves any consideration and no

discretion is required to be exercised in favour of the

petitioner.

4.4 This Court finds that the learned trial Court, after

considering the relevant provisions of the law, after

considering the facts and circumstances of the case and also

after considering the impugned application, has rightly come

to the conclusion that there is no reason to grant permission

to produce such document and that is also, at such belated

stage where there is no explanation coming forward that why

it is not produced at the time of filing of written statement

and neither it was the case that such document was missing.

4.5 Considering the totality of the facts and circumstances

of the present case and considering the facts that this Court

has limited jurisdiction under article 227 of the Constitution

of India in view of the judgment of the Hon'ble Apex Court

in the case of Garment Craft V/s Prakash Chand Goel reported in (2022) 4 SCC 181, whereby the Apex Court has

said that supervisory jurisdiction of High Court when to be

exercised, more particularly, paragraph 15 to 17 are relevant

and this Court finds no reason to interfere in the order

impugned order dated 17.03.2023 passed below exhibit 258

C/SCA/5749/2023 ORDER DATED: 05/04/2023

in Regular Civil Suit No.82 of 2008 by the trial Court, which

is otherwise found just and proper and in consonance with

the records available with the Court.

5. In view of the aforesaid, the present petition is

dismissed.

(SANDEEP N. BHATT,J) ds