Heirs Of Decd Badriprasad ... vs Lh Of Decd Ratilal Parshottamdas ...
2023 Latest Caselaw 8193 Guj

                                                                                        NEUTRAL CITATION




     C/SCA/19254/2023                                    ORDER DATED: 09/11/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 19254 of 2023
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        HEIRS OF DECD BADRIPRASAD PUNAMCHAND AGRAWAL
                             Versus
            LH OF DECD RATILAL PARSHOTTAMDAS PATEL
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Appearance:
MR CJ VIN(978) for the Petitioner(s) No.
1,1.1,1.1.1,1.1.2,1.1.3,1.1.4,1.1.5,1.2,1.3,1.4,1.5,1.6,2,2.1,2.2,2.3,3,3.1,3.2,3.
3,3.4,3.5,3.6,4
for the Respondent(s) No. 1,10,11,1.1,12,1.2,13,1.3,14,15,2,3,4,5,6,7,8,9
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  CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                               Date : 09/11/2023
                                ORAL ORDER

1. Heard learned advocate Mr. C. J. Vin for the petitioners

and learned advocate Mr. N. V. Gandhi for Respondents No.1.1

to 1.3.

2. At the outset, the learned advocate for the petitioner has

submitted that vide Exhibit-925, an application seeking

production of the certified copies of the proceedings of the High

Court was filed. However, the said application was decided by

the learned Trial Court by making an observation that exhibiting

of the documents shall be considered after the final submissions

of the suit which would be canvassed. Learned advocate for the

petitioner has submitted that the documents, which were sought

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to be produced, were only the certified copies of the proceedings

of First Appeals No.2733 of 2019, 2580 of 2021 and 3685 of

2021. It is further submitted that by not exhibiting the

documents at the time of deciding the application below

Exhibit-925, an error has been committed by the learned Trial

Court below. He has further submitted that if the documents are

not exhibited at the proper stage and if the judgment is

pronounced without considering the documents, the petitioners

would suffer a great loss.

2.1 Learned advocate for the petitioners has placed reliance of

the order dated 21.07.2023 passed by the coordinate Bench of

this Court in R/First Appeal No.3685 of 2021 with Civil

Application (For Stay) No.1 of 2021 in R/First Appeal No.3685

of 2021 and allied matters i.e. with R/First Appeal No.2580 of

2021 with Civil Application (for stay) No.1 of 2021 in R/First

Appeal No.2580 of 2021 with Civil Application (For Production

of Additional Evidences) in R/First Appeal No.2580 of 2021.

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3. Per contra, learned advocate Mr. Gandhi has made a

submission pointing out the observations made in order dated

21.07.2023 passed by the coordinate Bench of this Court, which

is placed on record at page 79 of the petition clause No. (v) of

paragraph No.7 of the said order, wherein it has been made clear

that no further evidence shall be led by either side and the Court

below shall pass the fresh de-novo judgment and decree on the

basis of the submissions to be made by both the sides.

3.1 By relying upon the said observations, the learned

advocate for the respondent has submitted that since the Co-

ordinate Bench of this Court has specifically not permitted any

party to lead any further evidence, the impugned order does not

require any interference and the impugned order is in

consonance with the directions issued by this Court.

3.2 Learned advocate for the respondent has relied upon the

observations made by the coordinate Bench of this Court vide

order dated 21.07.2023, which is placed on record at page 79 of

the petition which is reproduced hereunder:

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(v) It is made clear that no further evidence shall be led by either side and the Court below shall pass the fresh de-novo judgment and decree on the basis of the submissions to be made by both the sides.

(vi) It will be open for both the sides to place on record the documents which are filed before this Court in the proceedings initiated under Order 39 Rule 2(a) of the Code of Civil Procedure, 1908 as well as the Special Civil Applications filed by both the sides.

4. Having taken into consideration the rival submissions

made by the learned advocates for the respective parties and

having perused the averments stated in the petition, what is

sought to be produced by the petitioner before the learned Trial

Court was proceedings of the First Appeals being No.2733 of

2019, 2580 of 2021 and 3685 of 2021. By no stretch of

imagination, it can be said that the respondents herein were not

aware about the proceedings before the High Court as well as

the contents of the proceedings. The Trial Court has committed

an error of law in not deciding the application for giving

Exhibits rather than, differed the decision of exhibiting the

documents after the trial is concluded. Such practice is not

permissible under the law.

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5. If such practice is adopted and allowed by the learned

Trial Court, it would lead to miscarriage of justice for the simple

reason that parties would remain in dark till the judgment is

pronounced. And after the pronouncement of judgment either

party may suffer on account of either exhibiting or non-

exhibiting of documents. Thus, parties should not be kept in

lurch. The practice adopted by various learned Trial Courts of

keeping the issue open till the conclusion of the trial with regard

to the application for giving Exhibits to the documents, is totally

against the settled principles of law. Even in the impugned

order, the learned Trial Court has committed an error by not

deciding application Exhibit-925 and kept the parties under

uncertainty. It is expected from the learned Trial Court that

whenever the documents are produced by any party after

considering the admissibility of the documents, the Trial Court

should take the decision of either giving exhibits or reject the

request / application for giving exhibits. The said exercise has to

be undertaken before the cross-examination of the concerned

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party starts. If such exercise is undertaken at the right stage, the

trial would be proceeded without any unnecessary interlocutory

applications. The learned Trial Court should not keep the parties

in an uncertain situation by keeping the issue pending.

6. In view of the above observations, the Trial Court is

directed to decide the application Exhibit-925 afresh after giving

full opportunity to both the sides of hearing. It is further directed

that the learned Trial Court should decide the trial only on

merits keeping in mind the outer limit set up by this Court.

7. With these observations, order dated 27.10.2003 passed in

Special Civil passed by the Additional Civil Judge, Deesa is

quashed and set aside. The Trial Court may not be influenced by

the observations made hereinabove while deciding Exhibit-925.

Direct service is permitted.

(D. M. DESAI,J) RINKU MALI