Gujarat High Court

Manojkumar Arvindbhai Patel vs Arvindbhai Jashbhai Patel on 23 March, 2023

Bench: Sandeep N. Bhatt

      C/SCA/16841/2021                                 ORDER DATED: 23/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16841 of 2021

                                  With
            CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2022
            In R/SPECIAL CIVIL APPLICATION NO. 16841 of 2021
==========================================================
                         MANOJKUMAR ARVINDBHAI PATEL
                                   Versus
                          ARVINDBHAI JASHBHAI PATEL
==========================================================
Appearance:
MR YOGESH G KANADE(3114) for the Petitioner(s) No. 1,2,3
for the Respondent(s) No. 1
MR.ADITYA J PANDYA(6991) for the Respondent(s) No. 2
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 23/03/2023
                                  ORAL ORDER

1. Heard learned advocate Mr. Yogesh G. Kanade for

the petitioners and learned advocate Mr. Aditya J.

Pandya for the respondent No.2 and respondent No.1 is expired during the pendency of the suit proceedings.

2. The present petition is preferred by the petitioners

challenging the impugned order dated 04.09.2021 passed

below Exh.58 in Special Civil Suit No.172 of 2011 by the

Additional Senior Civil Judge, Vadodara, whereby, the

trial Court has dismissed the application filed under

Order XI Rule 12 & 14 of the Code of Civil Procedure,

C/SCA/16841/2021 ORDER DATED: 23/03/2023

1908, by which, the petitioners prayed for production of

documents from original defendant No.2.

3.1 Brief facts of the case are as such that the present

petitioners are the original plaintiffs, who has filed

Special Civil Suit No.172 of 2011 for declaration of

cancellation of registered sale deed dated 01.11.2010

being illegal and void, which is executed before the Sub-

Registrar Officer, Vadodara Vibhag-2 at Sr. No.10794. It

is the case of the petitioners that the suit property is

ancestral property, and therefore, in the revenue records,

the names of the petitioners have been mutated by way

of Mutation Entry No.2286 on 03.07.1981. The plaintiffs

are the owner of the land Mauje Sama, Vadodara Survey Nos. 314, 308, 619, 420 and 309 and total 6 acre and

29 Gunthas land have been procured.

3.2 It is further the case of the petitioners that the

petitioners have also filed Exh.5 application for interim

injunction, which is vide order dated 09.01.2018 is

allowed by the learned Additional Senior Civil Judge &

A.C.J. Magistrate, Vadodara. It is further the case of the

petitioners that till long span of time, the defendants

C/SCA/16841/2021 ORDER DATED: 23/03/2023

had not filed reply, and therefore, the right to submit

written submission have been closed by the trial Court,

and therefore, they have preferred Special Civil

Application No.6082 of 2018 before this Court, which is

erroneously allowed vide order dated 10.02.2020 with a

condition to pay cost of litigation of Rs.5000/- and is

directed to file the written statement within stipulated

time period of time, and thereafter, the respondents have

filed their written statement under Order VIII, Rule 6 of

Code of Civil Procedure and also have filed the counter

claim on 28.08.2020, and thereafter, the petitioners have

preferred the application at Exh.58 by seeking the

production of certain documents at para 7 of the

application, such as, documentary evidence pertains to transaction between defendant Nos.1 and 2 regarding the

sale deed like; details of cheque and bank statement

through which defendant No.2 has paid the amount of

sale consideration to defendant No.1.

3.3 It is further sought the balance sheet and income

tax return of the defendant No.2 of the financial year

2008-09, 2009-2010, 2010-2011 and also sought

information about whether any agreement to sale is

C/SCA/16841/2021 ORDER DATED: 23/03/2023

executed prior to the execution of sale deed in favour of

defendant No.2 and also the same is opposed by the

respondents by filing objection by stating that the sale

deed, which is executed by defendant No.1 in favour of

defendant No.2, is never challenged by defendant No.1

during his lifetime, neither any grievance is made about

the non-payment of the sale consideration. It is also

urged in that objection that notice is also served under

Section 135(d) Bombay Land Revenue Code to the

plaintiffs in the year 2010, and therefore, they are aware

about the sale transaction and therefore, the application,

which is filed at belated stage after almost 10 years

from filing of the suit under the provision of Order XI

Rule 12 and 14 of the CPC, is apparently not maintainable and is required to be dismissed as it is

filed with some ulterior motives.

3.4 Thereafter, the learned trial Court has heard the

parties and has dismissed the application by observing

that the plaintiff himself has averred something in his

plaint, which clearly establish that the plaintiff is aware

about the sale transaction and not only that total sale

consideration of Rs.44/- lakhs is also paid by cheque and

C/SCA/16841/2021 ORDER DATED: 23/03/2023

in cash by registered sale deed dated 01.11.2010, which

is registered with the Sub-Registrar Office, and

thereafter, the notice under Section 135(d) of the Bombay

Land Revenue Code is also served upon the plaintiffs,

and therefore, the plaintiffs cannot now ask about the

sale consideration.

3.5 Learned advocate appearing for the parties have

relied on many judgments. Thereafter, the learned trial

Court has considered the said application by rejecting the

say of the petitioners. There is need to produce the

documents under the provision of Order XI Rule 12 and

14 of the CPC. Further, defendant No.1 during his

lifetime has never raised any cloud regarding none receipt of sale consideration, and therefore, mainly on

that ground, the application filed by the plaintiff is

rejected.

4.1 Learned advocate Mr. Yogesh G. Kanade for the

petitioners has submitted that the prayer made in the

plaint itself shows that the petitioners are challenging

the sale deed executed in favour of the defendant No.2

by defendant No.1, who happens to be father of

C/SCA/16841/2021 ORDER DATED: 23/03/2023

defendant No.2. He has further submitted that interim

injunction is also granted in favour of plaintiffs in the

year 2018 as defendant No.2 has not contested the suit

till that day when right of the defendant No.2 is closed

to file written statement. Thereafter, the defendant No.2

has also approached this Court by filing Special Civil

Application, by which the right is open on condition to

pay the cost of Rs.5,000/- in the order dated 10.02.2020

passed in Special Civil Application No.6082 of 2018. He

has further submitted that the documents, which are

sought to be produced by the plaintiffs, are very

necessary to decide the suit proceedings which will not

cause any prejudice to the rights of the defendants. On

the contrary, such documents is available on the record, the Court can certainly examine the rival claims of the

parties in proper manner.

4.2 He has relied upon the judgment in the case of

Kewal Krishan Versus Rajesh Kumar And Others reported in AIR 2022 SC 564¸ and has submitted that if

it is executed without any comment or sale consideration,

it should be considered void. He has also relied on the

judgment of this Court in the case of Harshadkumar

C/SCA/16841/2021 ORDER DATED: 23/03/2023

Kantilal Bhalodwala & Anr Versus Ishwarbhai Chandubhai Patel & Ors. reported in 2010 (2) GLR 1041, wherein the Court has considered the aspect to establish the case by the parties by producing the source

of money like passbook, income tax return, etc., and

therefore, he has submitted this judgment is also helpful

to the case of present petitioners. He has lastly relied on

the judgment in the case of M/s Kamalia Brothers and

Co. Versus State of Gujarat reported in AIR 1992 GUJ 138, which pertains to the provisions of Order XI Rule 12 of the CPC and he has pointed out that such

discovery of documents/letters cannot be limited to letters

exchanged between the parties to the suit. The only

requirement is that the document should relate to any matter in question and should be in possession of the

party of the suit, and therefore, he prays that in the

facts and circumstances of the present case, the present

petition deserves to be allowed.

5.1 Per contra, learned advocate Mr. Aditya J. Pandya for the respondent No.2 has strongly opposed the prayers

made in the present petition and has supported the

judgment and order passed by the learned trial Court by

C/SCA/16841/2021 ORDER DATED: 23/03/2023

contending that during the lifetime, defendant No.1 has

never raised any objection about non-receipt of sale

consideration and when the document executed between

the parties i.e. registered sale deed, which is in favour

of respondent No.2, who has paid the substantial amount

for sale consideration, and therefore, that documents

cannot be doubted by the present petitioner. He has

relied on the provisions of Section 91 of the Indian

Evidence Act, 1872, which reads as under:-

"Section 91 of the Indian Evidence Act:-

When the terms of a contract, or of a grant, or

of any other disposition of property, have been reduced

to the form of a document, and in all cases in which

any matter is required by law to be reduced to the

form of a document, no evidence shall be given in proof

of the terms of such contract, grant or other disposition

of property, or of such matter, except the document

itself, or secondary evidence of its contents in cases in

which secondary evidence is admissible under the

provisions hereinbefore contained.

Exception 1.-- When a public officer is required

by law to be appointed in writing, and when it is

shown that any particular person has acted as such

C/SCA/16841/2021 ORDER DATED: 23/03/2023

officer, the writing by which he is appointed need not

be proved.

Exception 2. Wills admitted to probate in India

may be proved by the probate."

5.2 He has submitted that when the plaintiffs have no

reason to interfere or enquire the genuineness of the

validity of the sale transaction between defendant Nos.1

and 2, the petitioners has no direct relation in the land,

which is sold to the defendant No.2 by defendant No.1.

More particularly, defendant No.1 has never raised any

doubt or objection regarding the validity and genuineness

of the sale transaction, and therefore, he prays to

dismiss the present petition with appropriate observation.

6.1 I have considered the rival contentions raised at the

Bar. I have also considered the material available on the

record. While going through the pleadings of the parties,

it transpires that the suit, which is filed by the plaintiff

by claiming the property in question, is the ancestral

property and defendant No.1, who happens to be father

of the plaintiffs, has sold the land in question to

defendant No.2 by way of registered sale deed.

C/SCA/16841/2021 ORDER DATED: 23/03/2023

6.2 It is true that validity of the registered sale deed,

which is registered before the Sub-Registrar Officer,

cannot be challenged in casual manner and more

particularly, by the third party, who has no direct

interest with any of the parties, and in the present case,

it is not so that defendant No.1 is father of the

plaintiffs. It is specific case of plaintiffs in the suit that

the suit property in question is an ancestral property

and the said property is sold by his father without

obtaining consent of the plaintiffs. Moreover, judgments,

which are cited at the Bar, are also helpful and more

particularly, the judgment of Co-ordinate Bench of this

Court in the case of M/s Kamalia Brothers (supra), which pertains to the provisions of Order XI Rule 12 of the CPC and para 7 of that judgment is relevant to the

aforesaid said provisions, which reads as under:-

"7. The trial Court has also rejected the plaintiff's

application on the ground that the documents in

question are not between the plaintiff and the

defendant, but they are documents between the officials

of the defendant. I have no doubt that this observation

of the trial Court is merely an obfuscation inasmuch as

the correspondence between the officers of the defendant

C/SCA/16841/2021 ORDER DATED: 23/03/2023

can certainly be relied upon by the plaintiff if

according to the plaintiff the same may prove or

support the plaintiff's case. It is obvious that the Order

11 Rule 12 does not in any way limit the discovery of

documents, in the case of letters to the letters

exchanged only by the parties to the suit. The

requirements of this provision are limited only to the

fact that the documents should be or should have been

in the possession or power of a party to the suit, and

that the same should relate to any matter in question

in the suit. Clearly the letters in question satisfy these

requirements and, therefore, the order for discovery

thereof cannot be refused on the ground that the

letters are not directly between the parties to the suit."

6.3 Para 7 of the aforesaid decision is squarely applicable to the facts and circumstances of the present

case. It is held that the letters in question satisfy these

requirements, and therefore, the order for discovery

thereof cannot be refused on the ground that the letters

are not directly between the parties to the suit.

6.4 Moreover, the provisions of Order XI Rule 12 and

14 of the Code of Civil Procedure reads as under:

C/SCA/16841/2021 ORDER DATED: 23/03/2023

"Order XI:-

Rule 12. Application for discovery of documents:- Any

party may, without filing any affidavit, apply to the

Court for an order directing any other party to any

suit to make discovery on oath of the documents which

are or have been in his possession or power, relating to

any matter in question therein. On the hearing of such

application the Court may either refuse or adjourn the

same, if satisfied that such discovery is not necessary,

or not necessary at that stage of the suit, or make

such order, either generally or limited to certain classes

of documents, as may, in its discretion be thought fit:

Provided that discovery shall not be ordered when and

so far as the Court shall be of opinion that it is not

necessary either for disposing fairly of the suit or for

saving costs.

Rule 14:- Production of documents. - It shall be lawful

for the Court, at any time during the pendency of any

suit, to order the production by any party thereto, upon

oath, of such of the documents in his possession or

power, relating to any matter in question in such suit,

as the Court shall think right; and the Court may deal

with such documents, when produced, in such manner

as shall appear just."

6.5 The above reproduced Rules of Code of Civil

C/SCA/16841/2021 ORDER DATED: 23/03/2023

Procedure, 1908 are also not refusing such discovery and

on the contrary such discovery can be asked at any

stage of suit, if genuine ground is made out by the

parties. The plaintiffs are directly affected party and if

the production of such document is permitted, no

prejudice will cause to the rights of the respondents and

on the contrary, this will help the case of the respondent

No.2 to establish that the property is purchased by him

by valid and proper transaction after sale consideration.

6.6 Therefore, I found that the present petition deserves