Bileshwar Corporation Thro Udaybhai ... vs Shantinagar (Shela) Cooperative ...
2023 Latest Caselaw 8626 Guj

Gujarat High Court

Bileshwar Corporation Thro Udaybhai ... vs Shantinagar (Shela) Cooperative ... on 13 December, 2023

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 20188 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE DEVAN M. DESAI

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1        Whether Reporters of Local Papers may be allowed
         to see the judgment ?

2        To be referred to the Reporter or not ?

3        Whether their Lordships wish to see the fair copy
         of the judgment ?

4        Whether this case involves a substantial question
         of law as to the interpretation of the Constitution
         of India or any order made thereunder ?

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  BILESHWAR CORPORATION THRO UDAYBHAI DINESHCHANDRA
                          BHATT
                          Versus
SHANTINAGAR (SHELA) COOPERATIVE HOUSING SOCIETY LTD THRO
                     VIRAMBHAI DESAI
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Appearance:
MR SAURABH G AMIN(2168) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4,5
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                  Date : 13/12/2023
                                  CAV JUDGMENT

1. With consent and request of learned advocates of

both sides, this petition has been taken up for final hearing.

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2. Heard learned Senior Counsel Mr.Dhaval Dave

assisted by Mr.Saurabh Amin for the petitioner and learned

advocate Ms.Trusha K.Patel for the respondent.

3. Draft Amendment is allowed.

4. Rule. Learned advocate Ms.Patel waives service of

notice of rule for and on behalf of respondent.

5. By invoking Articles 226 and 227 of the

Constitution of India, the petitioner has prayed for quashing

and setting aside the order dated 10.11.2023 passed by the

learned Principal Senior Civil Judge, Sanand, Ahmedabad

(Rural) below Exhibit 233 in Special Civil Suit No.407 of 2017.

6. The facts leading to the present petition summarized

as under:-

6.1 The present petitioner instituted Special Civil Suit

No. 407/2017 (Old No. Special Civil Suit No.272/2013 for a

decree of specific performance of an Agreement to Sell dated

22.12.2006 and a Memorandum of Understanding complied

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with a permanent injunction.

6.2 The learned trial Court allowed the injunction

application below Exhibit-5 and had directed the respondent

No.1 to maintain status quo qua the suit property till outcome

of the suit. Appeal From Order No. 203/2022 challenging the

said order was allowed by this Court vide order dated

20.06.2023 and the learned trial Court was directed to expedite

the suit and complete the same within four months on receipt

of the order.

6.3 Against the order, the present petitioner preferred

Special Leave to Appeal (C) No. 15462/2023 before the Hon'ble

Supreme Court, which was withdrawn.

6.4 The issues were framed on 30.11.2022 below

Exhibit-94. No list of witness was submitted by the either

parties within 15 days of settlement of issues as per Order XVI

Rule 1 of the Code of Civil Procedure.

6.5 The deposition of petitioner/plaintiff commenced on

16.09.2023 and was concluded on 23.09.2023. The plaintiff

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closed its evidence on 04.10.2023. The deposition of the

defendant's witness namely Ashish Patel commenced on

21.10.2023 and was concluded on 21.10.2023.

6.6 The application below Exhibit-233 was filed by the

respondents seeking prayer to issue witnesses summons to the

officer of Collector's office to produce complaint filed by Dipen

Kaushik Patel and the statement of Nilesh Dineshchandra Bhatt

dated 16.10.2013. The said application was allowed by the

learned trial Court by impugned order dated 10.11.2023.

Thereafter, the petitioner is before this Court.

Submission of Petitioner.

7. Learned advocate for the petitioner has submitted

that the present petitioner instituted Special Civil Suit No.

407/2017 (Old No. Special Civil Suit No. 272/2013) for a

decree of specific performance and permanent injunction on

the basis of agreement to sell dated 22.12.2006.

7.1 It is further submitted that the matter has travelled

upto Hon'ble Apex Court on various orders passed during the

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trial.

preferred an application Exhibit-69 on or about 15.11.2022

under Order 1 Rule 10 of Civil Procedure Code for joining

party. The learned trial Court allowed the injunction

application below Exhibit-5 and directed the respondent No.1

to maintain status quo qua the suit property till outcome of

the suit. Appeal From Order No. 203/2022 challenging the said

order was allowed by this Court vide order dated 20.06.2023

and the learned Trial Court was directed to expedite the suit

and complete the same within 4 months of receipt of the

order.

7.3 Against the said order, the present petitioner

preferred Special Leave to Appeal (C) No. 15462/2023 before

the Hon'ble Supreme Court which was pending for

adjudication. Both the parties have been directed to co-operate

in the proceedings before the trial Court for expeditious

disposal of the suit, in view of the direction issued by the

High Court to dispose of the suit within 4 months.

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7.4 The learned trial Court by order dated 24.08.2023,

allowed an application Exhibit-69 preferred by respondent Nos.

2 to 5 under Order 1 Rule 10 of CPC for joining party. The

said order has been stayed by this Court by order dated

23.10.2023.

7.5 It is further submitted that the documents now

sought to be produced by issuance of witness summons was

not produced at the stage when Written Statement was filed.

7.6 The deposition of petitioner/plaintiff is concluded on

23.09.2023. The plaintiff gave pursis for closing its evidence on

04/10/2023. The deposition of the defendants witness namely

Ashish Patel commenced on 21.10.2023 and was concluded on

21.10.2023. At the fag end of the trial, on 26.10.2023, the

defendant preferred application below Exh.233 praying for

issuance witness summons for production of document. The

documents sought to be summoned and produced are neither

referred to in the written statement nor in deposition of the

defendant. Even the plaintiff was not put any question upon

such documents.

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7.7 It is further submitted that the learned trial Court

has erred in allowing the application only on the ground that

the document is intended to contradict the version of the

plaintiff in his deposition, more so when no such case was set

up in the cross examination. From the application, it is clear

that copy of the documents were in their possession since long

but the reason best known to them they were not produced till

date. After the evidence of the plaintiff is completed, no such

application could have been granted by the learned trial Court.

By allowing the application, defendant No.1 was allowed to fill

up the lacuna at the fag stage of the suit.

7.8 It is submitted provision of that Order 16 Rule 1(3)

are not properly considered by the learned Judge. It is

categorically submitted that the party is required to show the

sufficient cause for the omission to mention the name of the

witness as contemplated under Order 16 Rule 1(3) of the Civil

Procedure Code. The application Exhibit 233 is, absolutely

silent on showing sufficient reasons for issuance of witness

summons. There is no case made out by the respondent.

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7.9 The defendant did not put any question regarding

the documents to the petitioner at the time of the cross-

examination also. It is submitted that it was the duty of the

defendant to obtain and produce the document below list

page-234 before the settlement of the issues. Hence, serious

prejudice will be caused to the petitioner if documents are

permitted to be produced. As petitioner will not be able to

meet with such documents.

7.10 It is further submitted that Order 13 of the Civil

Procedure Code provides that the parties to the suit must

produce all the documents on which they want to rely before

the settlement of issues. The exception to provision of Order

13 Rule 1(1) is Order 13 Rule 1(3).

7.11 It is submitted that the judgments relied by the

learned advocate for the respondents is on the aspect of Order

16 Rule 1(1) and not in respect of Order 16 Rule 1(3) and

hence not applicable to the facts of the present case. Learned

advocate for the petitioner has relied upon a decision of Anil

Ramesh Bhusani vs Bhaskar Ramesh Bhusari and others, reported

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in 2014(5) Mh.L.J.

Submission of Respondents

8. Per Contra, Learned advocate for the respondents

has submitted that on 22.12.2006, a MOU by and between

plaintiff (Bileshwar Corporation) and defendant no.1

(Shantinagar society) was executed whereby in all 17 lands

were allegedly agreed to be sold out by the defendant to the

plaintiff No.1. The Plaintiff has sought specific performance of

this agreement to sell. It is submitted that in the year 2007,

since plaintiff was not in a position to make the payment as

agreed, earlier contract was rescinded. In place of earlier

MOU, another MOU was entered into between Ashishbhai

Patel, Plaintiff society and others. The plaintiff contended that

this MOU was executed in the year 2011; however, a reply

before SIT, written replies filed by Nileshbhai Bhatt and Uday

Bhatt (PARTNERS OF PLAINTIFF), it is admitted that the MOU

was entered into in the year 2007.

8.1 On 03.01.2013, complaint was lodged before SIT by

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Dipan Kaushik Patel, acting as partner of Bileshwar

Corporation against Nilesh Dineshchandra Bhatt, Ashishbhai P.

Patel and Nileshbhai V. Trivedi. On 16.10.2013, Nilesh Bhatt

had sent a written reply to PSI (SIT). This statement is

produced by two partners of the plaintiff Firm in

Cr.M.A.No.6619 of 2018. Defendant No.1 was not a party to

said proceedings. This statement would prove that the plaintiff

was not ready and willing to perform its part and hence the

agreement of year 2006 was cancelled and MOU was executed

in the year 2007 and not in the year 2011.

8.2 On 30.11.2022, Exhibit 5 was allowed against

transfer of lands. On 20.06.2023, the Appeal from Order

No.203 of 2022 was allowed and Injunction granted by the

trial court was vacated.

8.3 It is further submitted that in deposition of Uday

Bhatt, he has admitted that his brother Nilesh Bhatt had acted

on behalf of society and had signed Exhibits- 166 and 167.

Thus, authority of Nilesh Bhatt to act on behalf of plaintiff is

admitted and Nilesh Bhatt had stated before the SIT that

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Banakhat was cancelled as the plaintiff society was not in a

position to pay the remaining amount. Hence, the application

is filed to issue witness summons calling upon the officer from

SIT to produce documents.

8.4 The plaintiff has not disowned the truthfulness of

the statements produced by the defendant No.1. The purpose

of documents to be produced is not to fill up lacuna, but to

contradict the stay of plaintiff. The purpose is to bring on

record the truth for the adjudication of disputes. Learned

advocate for the respondent has relied upon the following

decisions in the case of:-

(i) D.T. Makwana Vs. State of Gujarat & Another, reported in 1992(1) G.L.H.46.

(ii) Bhavesh Nareshchandra Amin Vs. Dilipbhai Bhaktiprasad Doshi, reported in 2023(0) AIJEL-HC 244913.

(iii) Dharmendrakumar Maganbhai Parmar Vs. Pushapaben Dharmendrabhai Parmar D/o Lakshmanbhai Dungarbhai Parmar, reported in 2021(0) AIJEL-HC 242732.

(iv) Bharat Heavy Electricals Limited Vs. Ineos Styrolution Ltd. reported in 2019(0) AIJEL-HC 241593.

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(v) Naren Advertising And Marketing Vs. State Bank of Saurashtra, 2000(0) AIJEL-HC 208330.

(vi) Rahulbhai Godadhara Vs. Vijay Mafatlal Shah, 1982(0) AIJEL-SC.

(vii) Lalithaj Rai Vs. Aithappa Rai, reported in 1995(0) AIJEL-SC 15412.

(viii) Ashok Sharma Vs. Ram Adhar Sharma, reported in 2009(0) AIJEL-SC 42855

9. Having heard and considered the submissions of

learned advocates for the parties, a short question in the

present petition is whether a witness can be called upon to

produce the documentary evidence at the middle stage of the

trial.

In the present case, neither parties have followed

the provisions of Order 16 Rule 1(1) of the Code of Civil

Procedure, Order 16 Rule 1(3) of the Civil Procedure Code

cannot be read in isolation. What is contemplated under Order

16 Rule 1(3) of the Civil Procedure Code is when there is that

if there is the omission to mention the name of such witness

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in the list of witnesses with the permission of the Court

witness can be summoned.

10. In the present case, defendant No.1 has filed an

application to call upon a witness to produce the documents

mentioned in Exhibit-233, more particularly, for the documents

attached with marked 234. It is an admitted fact that

application Exhibit 234 was tendered after the closure of the

oral evidence of plaintiff. However, there is nothing on record

that the defendant was in knowledge of such documents either

at the stage of filing written statement or at the stage of

framing of issues. Such documents came in the possession of

defendant No.1, when such documents were produced before

this Court in the criminal proceedings.

11. It is worthwhile to consider that the stage of

leading evidence of defendant No.1 is yet not concluded and

the stage of the trial is for further evidence of defendant No.1.

In the case of Bhavesh Nareshchandra Amin vs. Dilipbhai

Bhaktiprasad Doshi, in paras 16, 17, 18, 19 and 19.1, this Court

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has observed as under:-

"16. Having discussed the law on the issue of witness summons, this Court would now examine whether the application was required to be rejected on any of the three contingencies as laid down by Hon'ble Division Bench of this Court in Bharat Heavy Electricals Limited (supra). It would be required to be noted herein that as such, as regards the first two contingencies i.e the application either lacking bonafides or the application being vexatious, neither it is the opinion of this Court nor has it been submission of learned Advocates appearing for respondents no.1, 2 and 3 that the application should have been dismissed on the above contingencies.

16.1 To elaborate by way of the application dated 20.10.2022, the petitioner was seeking to produce original copy of an 'agreement of consent' and report of the Fingerprint Bureau of Forensic Science Laboratory which had examined the said agreement and also for examination of the author of the report given by the FSL. It would appear that the suit in question, had been filed for declaration that the 'agreement of consent' referred to hereinabove was fraudulent. It also does not appear that such an application had been given hereinbefore and had been rejected or that the application had been moved by someone who was not concerned with the outcome of the suit. Thus it would appear that the application was neither lacking bonafides nor vexatious.

17. Insofar as the aspect of the application being an abuse of the process of the Court, the learned Advocates for respondents have submitted that the application is an abuse of process of the Court on the following counts namely (1) that no reasons

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being assigned for the application being moved at such a late stage; (2) The application having been moved nine years after the suit was filed, five years after written statement was filed, seven months after order of this Court dated 11.03.2022 fixing timeline for deciding the suit and three months after evidence of plaintiff was recorded and closed and that the application was moved inspite of order dated 11.03.2022 directing the learned Trial Court to decide the suit preferably within six months and this Court also directing the parties to co-operate in disposal within time frame. The application being moved after the earlier application for production of the report of the FSL, had been rejected upto the Hon'ble Supreme Court.

18. In the considered opinion of this Court none of the above aspects as raised by the learned Advocates for the respondents would be relevant for holding that the application was an abuse of the process of the Court. To elaborate insofar as the application being moved without any reasons, it would appear that the said contention had been neither raised by the respondents before the learned Civil Court nor the learned Civil Court had considered the said objection as one of the grounds for rejecting the application Exh. 86. In any case in the considered opinion of this Court, the petitioner has made out sufficient cause for delayed preferring of the appeal, when it has been submitted by the learned Advocate for the petitioner that the cause to prefer such an application had arisen only after the order passed by the learned Civil Court rejecting application for production of documents including the FSL report in question had been confirmed upto the Hon'ble Supreme Court. In view of the said circumstances, in the considered opinion of this Court non-stating of sufficient cause as per Order 16 Rule 1 (2) of CPC would not be fatal to the said application under Exh. 86. In the considered opinion

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of this Court, more particularly having regard to the law laid down by the Hon'ble Division Bench of this Court in case of Bharat Heavy Electricals Limited (supra), it would appear that an application for issuance of the witness summons can be made at any stage of the suit and whereas the same is the right of a party and except in case where the Court finds that the application was either not bonafide or vexatious or grant of the application would result in an abuse of the process of the Court, the same would have to be granted. Thus it would appear unless the application falls under the above three categories, only on account of the fact that sufficient cause is not shown, would not render the application liable to be dismissed. At the cost of reiteration, in the instant case, since this Court is of the opinion that learned Advocate for the petitioner has been able to make out sufficient cause as noted hereinabove, the submission of learned Advocate for the respondents that the application ought to have been rejected as he did not show the sufficient cause, cannot be countenanced. Under such circumstances in the considered opinion of this Court, application below Exh. 86 for issuance of witness summons could not be termed as an abuse of the process of the Court as warranting its rejection.

19. As regards the issue of the said application having been moved belatedly, in the considered opinion of this Court, the fact of such an application for issuance of witness summons being the right of a party to apply at any stage, the aspect of belatedness would pale into insignificance.

Furthermore, it would also be relevant to mention that the Hon'ble Division Bench of this Court has also inter alia observed that an application for grant of witness summons would not be refused on the ground that such an application might delay trial of the suit. Under such circumstances, the aspect of

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the application being filed belatedly, would not be an aspect, which would have any bearing on the maintainability of such an application.

19.1 Insofar as the issue of the application being filed inspite of a direction of this Court vide order dated 11.03.2022 directing the learned Trial Court to preferably decide the civil suits within a period of six months and also containing a direction to parties to co-operate for disposal, yet such an application being preferred. In the considered opinion of this Court, while the order in question using the word "preferably", denoting the intent of the Court that as far as possible the suits are to be decided within the time frame of six months yet the time frame is not be treated as being mandatory. Furthermore in the considered opinion of this Court even if such a direction was mandatory in nature, yet such a direction would not preclude any of the parties from exercising any legal remedies available to them. In the considered opinion of this Court, a mandatory direction for deciding the litigation within a specific period of time, would not have the effect of obliterating the legal remedies which a party has or could avail of, for redressal of any grievance or for grant of any positive remedy. Thus a party availing a remedy available under the law, would not and cannot be termed as an abuse of the process of the Court inspite of such remedy being availed of during existence of an order directing the litigation to be decided within a specific time frame."

12. The Court has observed that merely because the

mandatory direction for deciding the litigation within a

stipulated period of time, the legal remedies available to the

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parties to prove the respective cases, would not have been

obliterated. In the present case, the defendant No.1 has availed

the legal remedy by making necessary application summoning

a witness to produce the documents, which was within its

right.

13. In the case of Dharmendrakumar Maganbhai Parmar

vs. Pushapaben Dharmendrabhai Parmar D/o Lakshmanbhai

Dungarbhai Parmar, in para 5, this Court has relied upon the

observations made by the Madras High Court in the case of N.

Senthilkumar Vs. V. Tamilselvi, reported 2011(1) LW 758 . This

Court has also taken into account the observations made in

paras 5.2, 5.3, 5.4 and 5.6 of the case of N.Senthilkumar

(supra).

In the aforesaid case, the provisions of Order 16

Rule 1(1) has been discussed and observed that a discretion

has been vested in the Court to permit a party to summon a

witness, whose name does not appear in the list of witnesses.

14. In the case of Naren Advertising And Marketing Vs.

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State Bank of Saurashtra, in para 22, this Court has observed

as under:-

"22. I have considered all these submissions made by the learned counsel for the petitioner. In my view, as per section 30(b) of the Code of Civil Procedure read with Order-16 of the Code of Civil Procedure and as per the provisions of City Civil Court Rules, the present application has been moved in consonance with the provisions of City Civil Court Rules and also the Court has ample powers under section 30(b0 of the Code of Civil Procedure read with Order-16 of the Code of Civil Procedure. The Court has power and jurisdiction to issue summonses to person whose attendance is required either to give evidence or to produce documents. In my view, section 30 does not provide at any time limit and in fact at any time, the application can be filed. In my view, looking to section 30 of the Code of Civil Procedure and also judgment of Panjab and Haryana and also the judgment of Kerala High Court, the present application has been filed within time limit as still suit has to go for trial. In my view in the application, wherein it is stated that Shri Mannan Shah is a partner of the plaintiff-Firm, there is no reason to disbelieve the applicant that he is not a partner of the plaintiff-Firm. In my view, in the application read with provide the particular and states of Criminal Case and it is relevant to the present suit. In my view, therefore, the present application filed under section 30 of the Code of Civil Procedure read with Order-16 of the Code of Civil Procedure and City Civil Court Rules, the present application ought to have been allowed. I do not agree with the reasoning given by the learned Judge in her judgment dated 14th August, 2000 for rejecting the application. I, therefore, quashed and set aside the said order in this behalf."

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wherein the Court has power and jurisdiction to

issue summons to person whose attendance is required

either to give evidence or to produce documents, has been

considered.

15. In the aforesaid decisions also, the view expressed

by this Court is that it is the power and jurisdiction of Court

to issue summons.

16. In the case of Rahulbhai Godadhara Vs. Vijay Mafatlal

Shah, this Court has observed in para 6 as under:-

"6. The Tribunal has made certain observations while passing the order below application Exhibit 128 and the impugned order. The observations pertain to the negligent and lethargic manner of the advocates conducting the motor accident claim cases. The observations may be germane and may be true also. I am not expressing any opinion regarding the correctness or otherwise of the observations of the Tribunal. But one fact should not be lost sight of and it is this that the courts and Tribunals are meant for doing substantial justice and when no prejudice is likely to be caused to the other side and the prayer for examination of witness, or production of document or such other similar prayer is made, though, at a late stage, the same should ordinarily be not rejected if it is not likely to cause prejudice to the other side and much more so if it is necessary for arriving at a just decision of the case."

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17. Even on a negligent and lethargic manner of

conducting the claim cases, the view expressed by this Court is

that ordinarily the examination of witness or production of

documents or such other similar prayer is made, even at the

late stage, the same should ordinarily be not rejected. This is

subject to the rider that no prejudice is caused to the other

side in exercising the power and jurisdiction vested in the

Court.

18. In the case of Bharat Heavy Electricals Limited Vs.

Ineos Styrolution Ltd., in para-16, the Hon'ble Division Bench of

this Court has laid down following propositions:-

"16.(1) Under Order, Rule 1, C.P.C it is the right of the party at any stage of the suit to make an application to the Court seeking that summons be issued to a witness either to give evidence or to produce documents.

(2) The Court is not entitled to refuse such an application on the ground that it might cause delay in the trial of the suit on the adjourned date of the suit.

(3) If the summons is not served by the adjourned date of the suit the party who filed the application to issue the summons would take the risk.

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(4) If an application for adjournment is made at the `instance of the party who applied under Order 16, Rule 1, C.P.C. it is for the the Court to consider whether or not an adjournment should be granted.

(5) The Court may not refuse to order an application under Order 16, Rule 1, Civil P.C. on the ground that the evidence, if produced, may not be of any help to the document.

(6) Though Order 16, Rule 1, C.P.C. does not in terms impose any restrictions on the Court, the Court in the exercise of its inherent jurisdiction may refuse to issue summons in an application made under Order 16, Rule 1, C.P.C in those cases where it is satisfied that the application filed was not bonafide or was vexatious or granting the application would result in an abuse of process of the Court. Except in these three above contingencies the application must almost always be ordered.

19. In the present case, in my view, no prejudice is

likely to be caused to the petitioner on simply allowing a

witness to produce the documents. It is needless to observe

that merely documents are produced the same shall not be

exhibited unless defendant No.1 undertakes the exercise of

proving the contents of the documents. In the present case, by

production of the documents, the right of the plaintiff to rebut

the contents of the documents shall not be taken away in case

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a prayer for giving exhibiting such documents are made. As

and when, any attempt is made of giving exhibits to such

documents, a full opportunity shall be given to the plaintiff to

rebut the execution as well as the contents of such documents.

20. In opinion of this Court, that if there is an abuse of

process of Court or Court finds, it malafide or vexatious, the

application to summon a witnesses to produce documents can

be rejected. However, learned trial Court has exercised its

inherent jurisdiction by allowing the application. There is

nothing on record worth name that the application is malafide

or there exist abuse of process of court. Only grievance of the

petitioner is that it is at a belated stage and serious prejudice

will be caused, if documents are permitted to be produced,

what prejudice will be caused to the petitioner has not been

spelled out by the petitioner.

21. In doing substantial justice, court has power under

Section 30 of the Civil Procedure Code to issue a witness

summons, Section 30 of the Civil Procedure Code, is

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reproduced hereinunder:-

"30. Power to order discovery and the like:- Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party-

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

(c) order any fact to be proved by affidavit."

A power has been given to Courts to summons

documents without any application of a party irrespective of

stage of trail. But such powers are to be exercised judiciously

and in the present case, there is nothing, even prima facie, on

record that the power exercised are arbitrary and without

jurisdiction.

22. Order 16 Rule 1A of the Civil Procedure Code is

reproduced for reference:-

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Order 16 Rule 1A. Production of witnesses without summons. - Subject to the provisions of sub-rule (3) of rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents .

A right has been given to a party either to bring a

witness to give evidence or to produce documents subject to

the provisions of Order 16 Rule 1(3) of the Civil Procedure

Code.

23. On reading and interpreting all the above provisions

of Civil Procedure Code, what transpires that a right is given

to a party to summons a witness to either produce document

or give evidence at any stage of trial. The aim and purpose is

to bring the truth on record which will help the court in

deciding the controversies between the parties.

24. The scope under Article 227 is very limited and to

be exercised only when the Order impugned is arbitrary and

erroneous. The powers under Article 227 are wide and they

must be exercised sparingly and this is not a case whereby the

powers under Article 227 of the Constitution of India, are to

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be exercised. In the present case, the learned trial Court has

not exercised the jurisdiction arbitrarily and the findings in the

order impugned, are not perverse.

25. In the totality of the facts, this Court is of the view

that the present petition lacks merit and deserves to be

dismissed. However, the trial Court shall decide the suit

without being influenced by the observations made

hereinabove.

26. With these observations and directions, the petition

stands dismissed. Rule is discharged. Interim relief, if any,

stands vacated.

(D. M. DESAI,J)

MANOJ

FURTHER ORDER

1. At this stage, request is being made by the learned

advocate Mr. Saurabh G. Amin for the petitioner to stay the

order. On the other hand, learned advocate Ms. Trusha K.

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Patel for the respondent has raised a serious objection for

granting the stay of the order. Request is rejected.

2. In the meantime, the learned advocate Mr. Saurabh

G. Amin for the petitioner has requested that interim

arrangement, which was arrived at between the parties seeking

an adjournment before learned Trial Court may be continued.

4. On the other hand, learned advocate Ms. Trusha K.

Patel for the respondent has raised an objection regarding such

interim arrangement being continued.

5. In the interest of justice, interim arrangement shall

continue till the proper proceedings are filed by the petitioner

within a period of four weeks from today.

(D. M. DESAI,J) MANOJ