Dhaval Enterprise vs Gopal Industries
2023 Latest Caselaw 8052 Guj

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    C/SCA/6148/2023                               CAV JUDGMENT DATED: 03/11/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 6148 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA

and
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 ?

========================================================== DHAVAL ENTERPRISE Versus GOPAL INDUSTRIES ========================================================== Appearance:

MR DHAVAL D VYAS(3225) for the Petitioner(s) No. 1 MR ARJUNSINGH B CHAUHAN(11510) for the Respondent(s) No. 1,2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE DEVAN M. DESAI

Date : 03/11/2023

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)

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By invoking Article 227 of the Constitution of India, the

petitioner has prayed for the following reliefs:-

"8(a) YOUR LORDSHIPS may be pleased to issued an appropriate writ, order or direction by quashing and setting aside the order dated 16.02.2023 passed below Exh.48 in Commercial Suit No.264 of 2022 by the 6th Additional Senior Civil Judge, Surat (Annexure-A);

(b) Pending the hearing and disposal of the petition, the Hon'ble Court be please to stay further proceedings of Commercial Suit No.264 of 2022 pending before 6th Additional Senior Civil Judge, Surat;

(c) Any other and further relief/s that may be deem, just and proper may kindly granted in the interest of justice.'

2. The prayer in Exhibit 48 application by the petitioner -

plaintiff was to issue witness summons to Income Tax Department,

Income Tax Office, Majura Gate, Surat and Goods and Services Tax

Office, GST Office, Near Navdi Ovara, Nanpara Surat to produce

documents and to give evidence.

2.1 Heard learned advocate Mr.Dhaval D. Vyas for the

petitioner and learned advocate Mr.Arjunsingh B. Chauhan for the

respondents.

3. Rule. Learned advocate Mr.A.B.Chauhan waives service of

notice of rule for and on behalf of respondents.

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4. The brief facts leading to this petition are as under:-

4.1 The petitioner has filed Recovery Suit against the

respondents for the goods supplied to the respondents on various dates.

The case of the petitioner is that, the petitioner is engaged in the business

of manufacturing and selling of chemicals, whereby the respondent was

supplied with the chemicals as per the order of respondent. The business

transactions were going on since many years. The petitioner used to issue

bill/challan to the respondent, as and when, the goods were sold and

delivered. The petitioner filed a Commercial Suit No.264 of 2022 for the

recovery of Rs.10,45,613/- for the goods sold and delivered between

03.05.2018 to 24.05.2018. Pursuant to the above transactions, the

respondents issued cheque, which was dishonoured with the endorsement

'insufficient funds'. Thereafter, the petitioner filed a criminal case under

Section 138 of the Negotiable Instruments Act before the Chief Judicial

Magistrate, Surat bearing Criminal Case No.4676 of 2018.

4.2 In the said suit, the respondents appeared and filed written

statement. The Affidavit in lieu of Examination-in-chief under Order

XVIII Rule 4 of the Civil Procedure Code, was submitted by the

petitioner.

4.3 As per the say of the petitioner, petitioner produced bills and

the statement of Bank Account for the year 2018-19 to 2020-22. The

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grievance of the respondent is that, he has not received goods and also

denied the receipt of the goods as per the order. The cross-examination of

the petitioner is completed on 04.01.2023. Thereafter, petitioner moved

an application Exhibit 48, wherein the petitioner sought witness summons

to be issued to the Office of Income Tax Department, Surat and GST

Office, for the production and giving evidence for the documents

mentioned in the application.

5. Learned advocate for the petitioner has submitted that since

the respondents have denied the receipt of the goods to nullify the said

contention of the respondent, income tax returns of the defendant for the

year 2017-18 and 2018-19, are necessary and vital documents. Further, it

is the say of the learned advocate for the petitioner that, under the Goods

and Services Tax Act, when the goods are purchased by the respondents,

respondents claimed rebate under the Goods and Services Tax Act and

that can be ascertained from the details of GST rebate availed by the

respondents. Thus, these are the documents, which are necessary to prove

the case of the petitioner and for that purpose the witnesses prayed for are

required to be examined. The submission made by the learned advocate

for the petitioner that the stage of further leading the evidence of the

petitioner is yet not closed so the petitioner has an ample opportunity to

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prove his case before the learned trial court.

6. According to the submissions of learned advocate for the

petitioner, the documents sought to be produced by the witness, are very

vital and important piece of evidences in discharging the burden of

proving the case of the petitioner.

7. Learned advocate for the respondents while objecting to the

petition submitted that, the documents sought to be produced by the

witness of Income Tax Department and GST Department, are the

documents of respondents and the petitioner has to prove its case on its

own merits. While referring the cross-examination of the petitioner,

learned advocate for the respondent has submitted that, in the cross-

examination, the petitioner has admitted that they have not produced any

chalan with regard to delivery of goods. It is also an admitted fact that,

the income tax returns of the petitioner has also not been produced. This

is an attempt to fill up lacuna on the part of the petitioner and such lacuna

could not be filled up by calling upon the witness from Income Tax

Department and Goods and Services Department.

8. The controversy is in a narrow compass what is under

consideration for this court is whether a witness can be called upon to

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produce the documents to give deposition for the petitioner to fill up the

lacuna. It is very well known principle that the party has to succeed on its

own strength and not on the weakness of the other side. Applying this

principle, in the present case, burden of proving the suit transaction and

the amount due to the petitioner will remain on the petitioner till the

petitioner discharges.

9. At this stage, Section 101 of the Indian Evidence Act, 1872,

is worth considering. Section 101 of the Indian Evidence Act, 1972 reads

as under:-

101. Burden of proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

10. The said section defines burden of proof. The burden of

proof lies on party who substantially asserts the affirmative averments. A

party is bound to prove existence of any fact and the burden cannot be

shifted. The burden of proof and the onus of proof are having distinct

meaning in the law of evidence. Burden of proof lies upon a person who

has to prove the fact and which never shifts whereas the onus of proof

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shifts. Such a shifting is a continuous process in the evaluation of

evidence. The initial burden of proving a prima facie case is cast upon the

plaintiff. The onus shift on the defendant to adduce rebating evidence to

meet the case made out by the plaintiff.

11. Applying this principle, in the present case, the plaintiff has

positively averred in the plaint that the material was sold and supplied to

the respondents and in the defence, the respondents have denied the

transactions. Thus, the burden of proof of proving the transactions is in

the plaintiff and it can be presumed that the plaintiff was in complete

knowledge about the controversy and was also in knowledge about the

fact that the petitioner has to prove the transactions. At this juncture, it

will not be out of place to refer the provisions contained Order XVI Rule

1 of the Civil Procedure Code, which is reproduced hereinunder:-

"1. List of witnesses and summons to witnesses-

(1) on or before such date as the Court may appoint, and nor later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.

(2) x x x x xx

(3) xx xx xx

(4) xx xx xx

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12. The aforesaid Rule stipulates that the list of witnesses whom

the party proposed to call either to give evidence or to produce documents

has to submit list of witnesses and summons to witnesses, not later than

15 days after the date on which the issues are settled. This provision is

made for the purpose that all the parties know as to whom one party

propose to examine as a witness. The word "shall" used in Order XVI

Rule 1 be construed as mandatory. The trial courts are expected to

observe the said provisions strictly. This court is of the view that, in each

and every trial, the learned Judge to see that the provisions of Rule 16(1)

are scrupulously complied with so as to save precious time of the court

as well as litigants.

13. It may be stated, before proceeding further, that it has

become a practice in the trial that witnesses are either called upon or

applications for summoning witnesses are tendered, so as to keep the

other side in dark, this practice has to be deprecated. It is a practice

prevailing in the trial courts that witnesses are examined either by calling

the witnesses or by invoking the provisions under the Code of Civil

Procedure at the convenience and whims of the parties. The motive

behind this is only to try fill-up the lacuna which may have been left

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during the stage of leading either oral or documentary evidences.

14. In the case on hand, the learned trial court has observed that

since the suit is for recovery of money for the goods sold and delivered,

the petitioner will have an ample opportunity to cross-examine the

respondents and can certainly disprove the contentions of the respondent.

On scrutinizing the application Exhibition 48, the bone contention of the

petitioner is that since the transactions is denied by the respondents,

income tax returns of the respondents and the documents pertaining to

GST rebate are vital documents.

15. In the present case on hand, though the plaintiff was in

complete knowledge about the issues involved in the present case and did

not submit list of witnesses as contemplated under the provisions of

Order XVI Rule 1. This court is of the view that the prayers made in

Exh.48 application by the petitioner are nothing but to fill-up the lacuna

which are left over by the petitioner. The plaintiff cannot obviously take

the advantage the witnesses of defence, the plaintiff is supposed to prove

his case on his own strength.

16. In the totality of the facts and considering the controversy

existing in the suit, by calling upon the witnesses to produce the

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documents and to give evidence, is not permissible. The plaintiffs cannot

rely upon the documents of defendants in proving its own case. Once,

both the parties lead their respective evidences and only thereafter the

evidentially value and the the factum of proving respective contentions

can be arrived at by the trial court. Hence, the order passed by the learned

6th Additional Senior Civil Judge, Surat, is in consonance with the law,

and in accordance with the principles of law. The order impugned does

not require any interference.

17. The learned trial court may decide the controversy strictly

on the basis of evidence lead by the parties and the learned trial court

shall not be influenced by the observations made hereinabove.

18. With these observations, petition is dismissed.

(N.V.ANJARIA, J)

(D. M. DESAI,J) MANOJ