Savitaben D/O Harjibhai ... vs Shantibhai Mohanbhai Punjhabhai ...
2023 Latest Caselaw 6412 Guj

                                                                                NEUTRAL CITATION




       C/SCA/7007/2021                           ORDER DATED: 02/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7007 of 2021
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               SAVITABEN D/O HARJIBHAI CHELABHAI VAGHARI
                                 Versus
               SHANTIBHAI MOHANBHAI PUNJHABHAI VAGHARI
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Petitioner(s) No. 1,2,3,4,5,6
MR JAMSHED KAVINA(11236) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                             Date : 02/09/2023

                              ORAL ORDER

1. Heard learned advocate Mr. Yogendra Thakore for the petitioners and learned advocate Mr. Jamshed Kavina for the respondent.

2. By way of this petition filed under Article 227 of the Constitution of India, the petitioners challenge judgment and order dated 12.2.2021 passed by the learned 4 th Addl. Senior Civil Judge, Mehsana in application below Exh.70 in Regular Civil Suit No.124 of 2015, whereby application of the petitioners

- defendants for issuance of witness summons has been rejected by the learned Court below.

3. Facts in brief are that in Exh.70 in Regular Civil Suit No.124 of 2015, the defendants prayed that in order to prove their defence canvassed in written statement, they are required to examine Licence Surveyor, Asst. Government Inspector (Land Records) and Talati-cum-Mantri. It was also prayed that some illegal encroachment has taken place on the suit land. The survey of the suit land has also taken place. The defendants are required to prove all these aspects by calling the witnesses. The

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learned Court below, for the reasons recorded in the impugned order, declined to grant relief, which has given rise to the present petition.

4. Learned advocate Mr. Yogendra Thakore would submit that he is not pressing the prayer for fresh survey of the suit land, reserving his right to prefer separate application if available under the law before the court below. He would further submit that the defendant no.1 shall enter first into the witness box before calling the witnesses. Upon such submission, he would submit that the learned court below, while rejecting application Exh.15, has taken totally hyper-technical approach that the defendants have not produced the witness list in view of Order 16 Rule 1 of the CPC. He would further submit that since the defendants who have filed counter claim against the plaintiff, the defendants are also plaintiffs as far as their counter claim is concerned. He would further submit that burden to prove some of the issues are also fixed upon the defendants. He would further submit that principle of natural justice demands that the defendants may be given fullest opportunity to prove their defence and the case put up through counter claim. Upon such submission, he submits to allow this petition and to quash and set aside the impugned order with the rider that the plaintiff shall post enter into the witness box and with further submission that he is not pressing relief qua resurvey/fresh survey of the suit land at this juncture with liberty to file appropriate proceedings before the learned Court below.

5. Vehemently objecting to the relief claimed in this petition as well as arguments made by learned advocate Mr. Thakore,

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learned advocate Mr. Kavina, referring to the judgment of the Bombay High Court in case of Madhav Vishwanath Labhade and others Vs. Ramesh Gangadhar Kavade and others reported in 2019 SCC Online Bom 3303 would submit that filing of witness summons list under Order 16 Rule 1 of the CPC is the mandatory. In the present case, after framing of the issue, within the time limit, as stated in Order 16 Rule 1 of the CPC, the defendants have not filed witness list. He would further submit that since the defendants have missed the bus and did not follow the mandatory provisions of law, they cannot be permitted to fill up the lacuna at the subsequent stage. He would further submit that the defendants have not even filed proper explanation as to why they wanted to examine the witnesses. Thus he submits that the learned court below committed no error in disallowing the application Exh.70. He also argued that the defendants instead of coming to the witness box first intend to examine the witnesses. This procedure is unknown to the CPC.

6. The second submission canvassed by learned advocate Mr. Kavina is that to collect the witnesses, the defendants cannot be permitted to appoint the court commission under Order 26, Rule 9 of the CPC, which is settled provision of law and therefore, he submits that the learned court below has rightly denied this relief.

7. The third submission canvassed by learned advocate Mr. Kavina is that the witnesses which the defendants intended to call are the government officials and they are intended to be called for the purpose of proving certain documents, which they

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have prepared under their official capacity which can even otherwise proved by producing the certified copies of those documents on record by the defendants.

8. Lastly, for negating this petition, he would submit that this court holds the limited supervisory jurisdiction under article 227 of the Constitution of India. This court cannot venture and to interfere with the impugned order until finds that there is patent illegality in the order. These submissions are canvassed to dismiss this petition.

9. Having heard learned advocates for both the sides, at the outset, perusal of the impugned order, what appears that the learned court below has taken the hyper-technical approach. It is to be noted that procedural law are the handmaid to the principle of substantial justice. Procedural law cannot prevent a party to get the substantial justice. In the present case, the learned court below mechanically passed order believing that since the defendants have not filed the witness list in view of Order 16, Rule 1 of the CPC, they cannot be permitted to examine the witnesses in support of their defence. These findings do not stand. The learned court below also believed that the defendants have not declared that the government officials are not giving necessary information along with filing of the counterclaim and therefore, the defendants cannot examine those witnesses. This finding is totally imaginary and in teeth of the provisions of Order 8 Rule 6A of the CPC.

10. Insofar as, the judgment relied upon by the learned advocate for the respondent in case of Madhav Vishwanath Labhade (supra) is concerned, in that case, the Bombay High

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Court does not favour the petitioner mainly on the ground that when the court called upon the petitioner - defendant to explain why they want to call those witnesses, the petitioner - original defendant of that case was failed to give proper explanation. In the present case, the learned court below has not called any explanation from the defendants that why they wanted to call this witnesses. In that circumstances, the judgment, upon which the learned advocate Mr. Kavina has relied upon, does not render help to his case.

11. For the foregoing findings, the petition deserves consideration, more, particularly when the defendants declared that they shall enter into the witness box first and thereafter they shall examine the witnesses along with other submissions that they are not pressing the relief for fresh survey of the suit land with liberty to move the learned court below with appropriate application.

12. In view of this, it is clear that the learned court below has committed patent illegality which requires this court to interfere with the impugned order under supervisory jurisdiction.

13. In view of above findings and reasons, I pass following order.

1. The impugned order passed below Exh.70 in Regular Civil Suit No.124 of 2015 is hereby quashed and set aside.

2. The application as far as issuance of summons to the witnesses is allowed with the rider that the defendants shall first enter into the witness box and shall offer

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themselves for the cross examination to the plaintiff.

3. The defendants shall deposit the amount of witness charges, as shall be ordered by the court below.

4. From the receipt of this order, the defendants shall comply with the provisions of Order 16 Rule 1 of the CPC if they are required to examine any other witnesses and shall submit the witness list.

5. The defendants shall be at liberty to move appropriate application for conducting fresh survey of the suit land. The court shall decide such application, if filed, on its own merits after considering the objections raised by the plaintiff.

6. It is expected from the learned court below to hear and decide the suit as early as possible considering the age of the suit and pendency of litigation is before it.

(J. C. DOSHI,J) SHEKHAR P. BARVE