Gujarat High Court
Dollyben Kantilal Patel vs Decd Harishchandrasinh Jadeja on 5 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8749 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DOLLYBEN KANTILAL PATEL
Versus
DECD HARISHCHANDRASINH JADEJA & ORS.
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Appearance:
MR MEHUL S SHAH, SR. ADVOCATE with MR ADITYA A GUPTA(7875) for
the Petitioner(s) No. 1
MR DHAVAL C DAVE, SR. ADVOCATE with MR SALIL M THAKORE(5821)
for the Respondent(s) No. 1.1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/09/2024
CAV JUDGMENT
1. By way of this petition under Article 227 of the
Constitution of India, the petitioner claimed following relief:-
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"A. YOUR LORDSHIPS BE PLEASED to quash and set
aside the impugned order dated 14.12.2023 below Ex
503 to the extent agreement dated 13.10.2000 at mark
502/4 is refused to be exhibited, annexed at Annexure
Alto this application, impugned order dated 05.04.2024
below Ex 669 passed by the Ld. 13th Additional Senior
Judge, Rajkot in Special Civil Suit No. 53 of 2002,
annexed at Annexure B to this application and to
further quash and set aside the impugned order dated
26.04.2024 below Ex 688 passed by the Ld. 13th
Additional Senior Judge, Rajkot in Special Civil Suit No.
53 of 2002 annexed at Annexure C as being illegal,
contrary to law and arbitrary and to further direct the
Ld. 13th Additional Senior Judge, Rajkot to permit
filing of examination-in-chief or issue witness summons
to the witness Shri Mr. Shitalbhai Sanatbhai Mehta and
to further direct the Ld. 13th Additional Senior Judge,
Rajkot to exhibit Mark 502/4 document being
agreement dated 13.10.2000 in the interest of justice.
B. YOUR LORDSHIPS BE PLEASED to stay the
impugned order dated 14.12.2023 below Ex 503 to the
extent agreement dated 13.10.2000 at mark 502/4 is
refused to be exhibited, annexed at Annexure A to this
application, impugned order dated 05.04.2024 below
Ex 669 passed by the Ld. 13th Additional Senior Judge,
Rajkot in Special Civil Suit No. 53 of 2002, annexed at
Annexure B to this application and the impugned order
dated 26.04.2024 below Ex 688 passed by the Ld. 13th
Additional Senior Judge, Rajkot in Special Civil Suit No.
53 of 2002 annexed at Annexure C and to further
permit filing of examination-in-chief or issue witness
summons to the witness Shri Mr. Shitalbhai Sanatbhai
Mehta and to further direct the Ld. 13th Additional
Senior Judge, Rajkot to exhibit Mark 502/4 document
being agreement dated 13.10.2000 during the pendency
and disposal of the present application."
2. Brief facts and narratives of the case are as under:-
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2.1 The original plaintiff, Harishchandrasinh Jadeja, who was
the owner of the land bearing Survey No. 250 admeasuring Acres
198 Gunthas 39 situated at Rajkot executed an agreement to sell
dated 01.04.1993 in favor of Kantilal Ambalal Patel, proprietor of
Sai Developers, as per which Kantilal Ambalal Patel had to clear
ULC/ALC litigation over the land at his own cost and as
consideration, he was to get a portion of the land and the
remaining portion would remain with Harishchandrasinh Jadeja.
2.2 That an irrevocable power of attorney dated 01.04.1993
was executed by the original plaintiff-Shri Harishchandrasinh
Jadeja in favour of the defendant No.2-Dhananjay Vallabhbhai
Patel which was produced along with the plaint at Mark 4/9
later on it is exhibited at EX-483 and the same is annexed
herewith and marked as Annexure-E. In the agreement to sell
dated 01.04.1993, this irrevocable Power of Attorney executed in
favor of defendant no. 2- Dhananjay V. Patel is referred to and it
is stated that all rights have been granted to the power of
attorney by the org. plaintiff. It is further stated in the agreement
to sell that the irrevocable power of attorney shall remain valid
until the project or scheme is constructed on the suit land.
2.3 That irrevocable Power of Attorney was given by the owner
of the land, Harishchandrasinh Jadeja, in favor of Dhananjay V
Patel in order to enable original defendant no. 1, Kantilal Patel to
fight the litigation and undertake all legal process for clearing
the title of the land. It is stated that in the said irrevocable power
of attorney, wide powers were granted to the defendant No. 2 to
represent, remain present and do all acts as are necessary on
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behalf of original plaintiff- Shri Harishchandrasinh Jadeja. The
Power of Attorney further empowers the Defendant No. 2-
Dhananjay V. Patel to represent the org. plaintiff in court and to
further sign on any suit, written statement, reply, applications,
affidavits, contracts, appeal, revision, review or give oral evidence
on behalf of the org. plaintiff. Apart from being irrevocable, it is
made clear in the Power of Attorney that Kantilal can undertake
all processes using the Power of Attorney which the land owner-
Harishchandrasinh Jadeja can perform and the Power of
Attorney cannot be cancelled or revoked by Harishchandra until
the title of the land is cleared.
2.4 On 07.04.1993, another agreement to sell was executed by
original plaintiff-Harishchandrasinh Jadeja in which he agreed
to sell the entire land to original defendant no. 1-Kantilal for a
consideration of Rs. 25,76,808/-.
2.5 On the basis of the Power of Attorney, original defendant
no. 1- Kantilal Patel started undertaking the process of clearing
the title of the land from April 1993 onwards by handling the
litigation over the land including ULC cases and acted on behalf
of original plaintiff-Harishchandrasinh Jadeja. It is stated that
the subject land admeasuring Acres 198 Gunthas 39 was open
land. The org. plaintiff received information and told Kantilal
Patel, org. defendant, that several high-headed persons had
started stealing sand from the land and were trying to create
unauthorized slums in our land. Therefore, a security agency
had to be hired for taking care of the land. It was decided that
the possession of the land would be handed over to Kantilal so
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that he may incur the expenses of securing the land and the
land owner would not have to bear such expenses. Therefore,
another irrevocable power of attorney dated 30.11.1994 was
executed in favor of Kantilal's consultant Rajesh B Shah residing
at Vadodara.
2.6 From 1994 to 2001, two rounds of ULC litigation took place
right upto the Supreme Court. The entire expenditure was being
borne by original defendant no. 1-Kantilal Patel. In the
meantime, the price of the land was increasing. The heirs of old,
infirm and ailing plaintiff- Harishchandra Jadeja started
pressuring him to sell off the land to someone and to cancel the
agreements in favor of Kantilal Patel. So to protect the future
rights of both the parties, an agreement dated 13.10.2000 (in
short "the disputed document") was executed between the
parties.
2.7 It is stated that one Mr. Mr. Shitalbhai Sanatbhai Mehta
and Late Shri Sanat Maganlal Mehta who was a Former Member
of Parliament of Surendranagar, First Chairman of Narmada
Sarovar Nigam and the Former Finance Minister of Gujarat had
also signed the disputed document as witnesses to its execution.
It is stated that the disputed document revises and increases the
consideration to the tune of 100% increase every year effective
from the date of agreement i.e 01.04.1993 and such additional
amount would be paid at the time of sale deed after completion
of ULC/ALC proceedings to the org. plaintiff under the
agreement to sell dated 01.04.1993 and 07.04.1993. It also
records the fact of handing over of possession of the suit land to
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the org. defendant. It also records an alternative proposal
regarding how the 30 acres out of the total suit land of 198 Acres
39 Gunthas is to be dealt with. It also records that in the
proceedings under the Gujarat Agricultural Land Celing Act,
1960, the org. plaintiff will choose the suit land of 198 Acres as
the retainable land and exercise his option of choice accordingly.
It also records the agreement between the parties that org.
defendant can secure his future rights by obtaining a consent
decree from a competent court. Thus, disputed document is a
vital agreement which secures the rights of both the parties.
2.8 Consequently, original defendant no. 1-Kantilal Patel filed
a suit being Civil Suit No. 350 of 2000 asking for relief which
would secure the right of both the parties and sought specific
performance of agreement dated 07.04.1993. In the said suit,
prayer sought was that only when the entire consideration is
paid to the original plaintiff-Harishchandra Jadeja, a sale deed
should be executed in favor of Kantilal Ambalal Patel. (Sai
Developers). Earlier, entire proceedings were conducted by the
Power of Attorney on behalf of the principal, original plaintiff-
Harishchandrasinh Jadeja. Similarly, even before the Court in
Civil Suit No. 350 of 2000, the Power of Attorney appeared on
behalf of org. plaintiff-Harishchandrasinh Jadeja and consented
that only when full consideration is received, sale deed should be
executed. The Hon'ble Court recorded the consent and specified
that after full consideration is paid, original plaintiff-
Harishchandrasinh Jadeja should execute a sale deed or Court
Commissioner should execute a sale deed in favor of Kantilal
Patel. It was further specified that till then the land owner
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Harishchandrasinh Jadeja will not create any third party rights
or encumbrance over the land. As per the final operative portion
of such consent decree, the org. defendant No.1 had paid a sum
of Rs. 12 lakhs to the org. plaintiff- Shri Harishchandrasinh
Jadeja and it was ordered that the sale deed should be executed
upon payment of the remaining consideration as per the
agreement. It is noteworthy that consent decree dated
07.02.2001 also refers to the disputed document.
2.9 When the legal heirs of org. plaintiff-Harishchandra came
to know about this, after a period of 7 months from the date of
the decree dated 07.02.2001, they caused a notice dated
29.10.2001 to be issued to the power of attorney holders,
defendant no. 2 and Rajesh B Shah stating that both the
persons were granted power of attorney which was cancelled by
the notice dated 29.10.2001. For a period of 8 years from 1993
to 2001, org plaintiff-Harishchandrasinh Jadeja did not object to
the Power of Attorney and the proceedings of the Civil Suit No.
350 of 2000 were conducted and disposed off on the basis of
Power of Attorney without any dispute regarding it.
2.10 The notice dated 29.10.2001, the reason given to cancel
the Power of Attorney was that the sister of original plaintiff-
Krushnakuwarba had created disputes regarding partition of the
properties and therefore, original plaintiff-Harishchandrasinh
Jadeja was compelled to cancel the Power of Attorney. It is clear
that org plaintiff-Harishchandrasinh Jadeja, had made no
allegation against the Power of Attorney holders in that land. In
fact, in the agreement to Sell dated 07.04.1993, it was
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undertaken that the agreement would be binding to
Harishchandrasinh Jadeja's legal heirs and successors and
therefore, such reason was against the undertaking given in the
agreement to Sell. If the sister of Harishchandrasinh Jadeja
created disputes, then the original defendant no. 1 could not
have been made to suffer for it.
2.11 That the org. plaintiff got a notice dated 29.11.2001
published in the newspaper, "Gujarat Samachar", stating that
the power of attorney granted to defendant no. 2-Dhananjay V
Patel and Rajesh B Shah stands cancelled.
2.12 On 13.03.2002, the present independent suit being Special
Civil Suit No. 53/2002 was filed by the org. plaintiff- Shri
Harishchandrasinh Jadeja claiming that on 23.11.2001, the org.
plaintiff came to know that the consent decree dated 07.02.2001
in Civil Suit No. 350/2000 was obtained by fraud by the org.
defendant no. 1 in connivance with its power of attorney holder,
defendant No.2.
2.13 Thereafter, the plaint was amended. At para 16B of the
amended plaint dated 19.09.2005 at Ex 54, the org. plaintiff-
Harishchandrasinh Jadeja refers to execution of the disputed
document and admits that pursuant to the execution of such
disputed document, he had accepted 7 lakhs towards
consideration for sale of the suit property to the org. defendant
No. 1 during the pendency of the suit and that he was ready to
refund the same. Therefore, it is not open to the plaintiff to
proceed further with the suit after having acquiesced in the
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compromise decree dated 07.02.2001 by accepting the sum of
Rs. 7 lakhs towards the remaining consideration.
2.14 That vide Ex 54, on 19.09.2005, an amended plaint was
filed. Third amended plaint was filed on 26.04.2006 vide Ex 74
and the fourth amended plaint was filed on 27.01.2010 vide Ex
145. Therefore, from 2002 to 2010, in a period of 8 years, the
plaintiffs have amended the plaint several times. In the amended
plaint filed by the org. plaintiff-Shri Harishchandrasinh Jadeja at
Ex 74, it is admitted at para 16B that disputed document was
executed between the parties and that the org. plaintiff-Shri
Harishchandrasinh Jadeja had accepted a sum of Rs. 7 lakhs
towards consideration during the pendency of the suit and that
he was ready to refund the same. The org. defendant No. 1 filed
his written statement to the amended plaint on or around
09.02.2010 in which the execution of the disputed document is
not denied. Thus, both the parties admit to the copy of the
amended the disputed document.
2.15 It is noteworthy that even though original copy of the
disputed document was in the custody of the org. plaintiff, he
did not produce the same in the suit even though its execution is
admitted in the plaint. It is stated that issues were framed vide
Ex 279.
2.16 That in the Ex 281 examination-in-chief filed by Amarsinh
Jadeja, the legal heir of Harishchandrasinhji, the said disputed
document is referred to and its execution is not disputed even in
cross-examination by Shri Amarsinh.
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2.17 That the org defendant no. I had filed an application dated
23.06.2011 at Ex 222 to direct the plaintiff to produce the
disputed document before the Hon'ble Court against which the
plaintiff filed its objections at Ex 232 on 13.12.2011 stating that
the document was a public document and so it could not be
sought from the plaintiff. This Ex 222 application was disposed
off by the Hon'ble Court vide order dated 04.08.2012 without
any decision on merit on the ground that the org. defendant no.
1 was taking adjournments to argue the said application on the
one ground whereas it had filed an application to conduct the
suit expeditiously on the other hand.
2.18 Even the defendant no. 1/4 filed a similar application at Ex
359 to which the plaintiff filed its objection at Ex 378 taking a
different stand that the said document was not in its custody. It
is stated that the said application was disposed vide order dated
29.09.2023 on the ground that the said document did not bear
any relevance with the issue involved in the suit and on the
ground that the plaintiff had in its objection Ex 378 stated that
they do not have the custody of the said document.
2.19 Therefore, the present Petitioner-defendant No. 1/2
produced a xerox copy of the disputed document along with a Ex
502 list of documents & therefore, mark 502/4 was given to the
xerox copy of the disputed document. An Ex 503 application
dated 11.12.2023 was given by the Petitioner-defendant no. 1/2
to exhibit the documents produced along with the Ex 502 list of
documents. In such application, the Petitioner-defendant No.
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1/2 has given detailed reasons as to why secondary evidence of
disputed document was being led. However, without considering
the reasons stated by the Petitioner-defendant no. 1/2 in the Ex
503 application, the Ld. Trial Court was pleased to not give
exhibit to the disputed document vide impugned order dated
14.12.2023 below Ex 503 application inter alia on the ground
that the Petitioner-defendant no. 1/2 has not provided reasons
for leading secondary evidence of disputed document.
2.20 The org. plaintiff and org. defendant who had executed the
disputed document have passed away and only one of the
witnesses to the disputed document, i.e., Shri Mr. Shitalbhai
Sanatbhai Mehta, is alive as on date. In the witness list at Ex
626, the Petitioner-defendant no. 1/2 has shown Shri Mr.
Shitalbhai Sanatbhai Mehta as one of the witnesses. This list
was objected to by the plaintiff No. 1/1 vide Ex. 670 objections.
An application at Ex 669 was submitted to issue witness
summons on Shri Mr. Shitalbhai Sanatbhai Mehta which was
objected to by the plaintiff vide Ex 671 objections inter alia on
the ground that Shri Mr. Shitalbhai Sanatbhai Mehta's
testimony would not be relevant considering the subject matter
of the suit. Vide impugned order dated 05.04.2024, the Ld 13th
Additional Senior Civil Judge, Rajkot was pleased to dismiss the
Ex 669 application inter alia on the ground that Shri Mr.
Shitalbhai Sanatbhai Mehta was not shown as a witness in the
agreement to sell dated 01.04.1993, 07.04.1993 and the Power
of Attorney dated 01.04.1993 whereas the disputed document
having Mark 502/4 is not exhibited. It was further observed that
the evidence of Mr. Shitalbhai Sanatbhai Mehta is not required
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for effective adjudication of the suit.
2.21 The evidence of defendant no. 1/2 continued thereafter.
Witness summons was issued on the Manager of Shri Dena
Bank. It is stated that vide order dated 29.03.2024, the Ld. Trial
Court had rejected the application Ex 664 of the plaintiffs to
adjourn the cross- examination of defendant till certified copies
of several documents pertaining to Suit No. 186/2010 are
obtained. This was challenged by the plaintiffs vide SCA No.
5605 of 2024 before the Hon'ble High Court and the same was
dismissed vide order dated 05.04.2024. Even the SLP No. 8872
of 2024 was disposed off by the Hon'ble Supreme Court vide
order dated 19.04.2024 while granting liberty to the plaintiffs to
cross-examine the defendant no. 1/2 on the basis of simple copy
of the records connected with Suit No. 186/2010. The plaintiff
craves leave to produce the relevant records by way of a separate
compilation.
2.22 Since the Ld. Trial Court had refused to issue witness
summons on Shri Mr. Shitalbhai Sanatbhai Mehta, an affidavit
of summon Mr. Shitalbhai Sanathhai Mehta had been dismissed
vide carlier evidence of Shri Mr. Shitalbhai Sanatbhai Mehta
under Order 18 Rule 4 was filed by the defendant no. 1/2 on
26.04.2024 at Ex 688. However, the same was rejected vide
impugned order dated 26.04.2024 inter alia on the ground that
earlier Ex 669 witness summons application to impugned order
dated 05.04.2024 which had not been challenged by the
defendant no. 1/2.
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2.23 Thereafter, vide order dated 30.04.2024, the Ld. Trial
Court was pleased to recall the defendant no. 1/2 for further
cross-examination as per the order dated 19.04.2024 passed by
the Hon'ble Supreme Court. It is stated that vide Ex 691, closing
purshish was submitted by the defendant no. 1/2 while
reserving its rights. Vide Ex 692 & 693, defendant No. 1/1, 1/3
and 1/4 adopted the evidence led by defendant no. 1/2.
2.24 The evidence of defendant no. 5 has commenced and the
same has been completed. The defendant no. 5 has filed his Ex
694 examination-in-chief of Shri Arvindkumar Dwarkadas Jani
under Order 18 Rule 4 of CPC which also refers to mark 502/4
in detail. It is stated that the matter is now at the stage of final
arguments.
2.25 Though not relevant, for the purpose of complete
disclosure, it is stated that the Respondent No. 2, Bhanuben
Kantilal Patel, had filed an application below Ex 291 under
Order 7 Rule 11 for rejection of the plaint which was dismissed
by the Ld. Trial Court vide order dated 13.03.2023. The said
order dated 13.03.2023 was challenged before the Hon'ble High
Court in CRA No. 197 of 2023 and vide order dated 15.06.2023,
the said CRA was rejected by the Hon'ble High Court with a
direction to decide the Suit No. 53/2002 within a period of 6
months from the date of the order dated 15.06.2023. The said
period of 6 months has been further extended by 1 year vide
order dated 19.01.2024 passed by the Hon'ble High Court. The
Petitioner craves leave to produce the relevant record by way of a
separate compilation.
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2.26 Hence, present petition.
3. In essence, the petitioner challenges order passed below
Exh.503 dated 14.12.2023; order passed below Exh.669 dated
5.4.2024 and order passed below Exh.688 dated 26.4.2024
passed by the learned 13th Addl. Senior Judge, Rajkot in Special
Civil Suit No.53 of 2002.
4. Exh.503 was moved by the petitioner to exhibit the
document produced at Mark 502/4; Exh.669 was moved to issue
witness summons to Shalinbhai Sanatbhai Mehta and order
passed below Exh.688 discarded the affidavit of witness Mr.
Shitalbhai Sanatbhai Mehta filed in lieu of chief examination
under Order 18 Rule 4 of the CPC.
5. Heard learned Senior Counsel Mr. Mehul S. Shah assisted
by learned counsel Mr. Aditya Gupta for the petitioner, learned
Senior Counsel Mr. DC Dave assisted by learned counsel Mr.
Salil Thakore for respondent No.1.1, learned counsel Mr. Kurven
Desai for the respondent No.7 and learned counsel Ms. Helly
Parikh for respondent Nos.2,3 and 8.
6. Learned Senior Counsel Mr. Mehul S. Shah would submit
that applications Exh.222 as well as Exh. 359 were moved under
Order 11 Rule 12, 13 and 14 of the CPC for production of the
disputed document. However, the first application was disposed
of on other ground without deciding the application and second
application was disposed of on the ground that the plaintiffs of
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the suit have categorically stated that they do not possess the
original copy of the disputed document. He would further
submit that these two documents were the foundation for
moving the application for exhibiting Mark 502/4 document
being photostat copy. Firstly, the petitioner has tried to get the
original disputed document produced in the Court, but since it
was not in possession of the plaintiffs of the suit, the defendants
tried to get exhibited the photostat copy by treating it to be
secondary evidence, but the learned trial Court committed
serious error in disbelieving that Mark 502/4 could not be
treated as secondary evidence.
6.1 Learned Senior Counsel Mr. Mehul S. Shah would further
submit that existence of the disputed document is not in
dispute. The plaintiffs in their plaint categorically referred to the
disputed document. He would further submit that in these
circumstances, the disputed document is not the new document
to the plaintiffs, but the plaintiffs were in full knowledge of the
disputed document. He would further submit that in essence,
Special Civil Suit No.53 of 2002 was filed to quash and set aside
the collusive decree arrived at between the defendants and the
power of attorney of the plaintiffs in Regular Civil Suit No.350 of
2000. He would further submit that even in Regular Civil Suit
No.350 of 2000, reference of the disputed document was also
mentioned. He would further submit that in order to decide the
real controversy between the parties of Special Civil Suit No.53 of
2000, the disputed document, copy of which is produced at
Mark 502/4 and since the original of the disputed document was
not available, Mark 502/4 is required to be exhibited treating it
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as secondary evidence by the learned trial Court, but the learned
trial Court committed serious and gross error in rejecting the
application to exhibit the disputed document.
6.2 As far as order denying the issuance of summons to the
witness is concerned, learned Senior Counsel Mr. Mehul S. Shah
would submit that in view of Order 16 Rule1A of the CPC, the
petitioner can examine the witness even if he has not placed on
record the list of the witnesses. He would further submit that it
is a prerogative of the petitioner to call his witness even he is not
named in the witness list, but the learned trial Court, for some
strange reason, declined the application for calling the witness
namely Mr. Shitalbhai Sanatbhai Mehta - witness to the
disputed document. He would further submit that it was one
more try on the part of the petitioner to prove the document
Mark 502/4 by bringing the said witness into the witness box
and to examine the signature and contents made in the Mark
502/4. He would further submit that Mark 502/4 document
was also referred to the plaintiffs in the cross-examination, but
the plaintiffs have denied to recognize those documents and
therefore, it was required for the petitioner to examine the
witness to prove the disputed document, which is essential for
deciding the controversy between the parties.
6.3 Lastly, learned Senior Counsel Mr. Mehul S. Shah would
submit that the Court has no jurisdiction to discard the affidavit
filed under Order 18 Rule 4 of the CPC in lieu of chief
examination, it can be on record and veracity of it can be decided
during the final hearing, but by no means, the Court has
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jurisdiction to discard the affidavit of witness Mr. Shitalbhai
Sanatbhai Mehta placed as examination-in-chief, which was filed
to establish the disputed document.
6.4 In nutshell, learned Senior Counsel Mr. Mehul S. Shah
argued that the learned trial Court has failed to notice the law
for exhibiting secondary document; at the same time, the learned
trial Court also failed to notice the provisions of Order 16 Rule
1A of the CPC, which is independent to provisions of Order 16
Rule 1 of the CPC and though the production was allowed,
Proving of the disputed document was not permitted and hence,
the learned trial Court committed serious error in discarding the
disputed document and committed further error by not
permitting the petitioner to examine the witnesses.
6.5 To buttress his submission, learned Senior Counsel Mr.
Mehul S. Shah referred to and relied upon the following
authorities.
(1) judgment of the Hon'ble Apex Court in case of Ameer
Trading Corpn. Ltd. Vs. Shapoorji Data Processing Ltd. reported
in (2004) 1 SCC 702, more particularly, para 33, which reads as
under:-
"33. The matter may be considered from another angle.
Presence of a party during examination-in-chief is not
imperative. If any objection is taken to any statement
made in the affidavit, as for example, that a statement
has been made beyond the pleadings, such an objection
can always be taken before the court in writing and in
any event, the attention of the witness can always be
drawn while cross-examining him. The defendant would
not be prejudiced in any manner whatsoever the
examination-in-chief is taken on an affidavit and in the
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event, he desires to cross-examine the said witness he
would be permitted to do so in the open court. There
may be cases where a party may not feel the necessity
of cross-examining a witness, examined on behalf of the
other side. The time of the court would not be wasted in
examining such witness in open court."
(2) Full bench judgment of Bombay High Court in case of
Hemendra Rasiklal Ghia Vs. Subodh Mody reported in 2008(6)
Mh.L.J. 886, more particularly, para 90 thereof, is also relied,
which reads as:-
"90. So far as Question-B relating to the stage at which
objection to the admissibility or relevancy of evidence
contained in the affidavit of evidence filed under Order
XVIII Rule 4 of C.P.C. is no more res integra in view of
the three Judge Bench judgment of the Apex Court in
the case of Ameer Trading Corpn. Ltd. (supra); wherein
the Court ruled as under:
"..... If any objection is taken to any statement
made in the affidavit, as for example, that a
statement has been made beyond the pleadings,
such an objection can always be taken before the
court in writing and in any event, the attention of
the witness can always be drawn while cross-
examining him. The defendant would not be
prejudiced in any manner whatsoever if the
examination-in-chief is taken on an affidavit and
in the event he desires to cross-examine the said
witness he would be permitted to do so in the open
Court........."
(Emphasis supplied)
(3) Bombay High Court judgment in case of Harakchand
Gulabchand Dhoka Vs. Kashinath Narsingh Marathe reported in
(2010) SCC Online Bom 78, more particularly, para 6 thereof, is
also relied, which reads as:-
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"6.Once the affidavit in lieu of examination-in-chief is
filed it partakes the character of the examination-in-
chief of the concerned witness. There is no provision
under the said Code under which the Court can direct
deletion of any portion of an examination-in-chief.
Nevertheless, an objection can always be taken by the
rival party in writing to any objectionable portion of the
affidavit. Moreover, the attention of the witness can be
always invited to said portion while cross examining
him. If there are irrelevant statements in the affidavit in
lieu of examination-in-chief and if there are statements
which are beyond the scope of the pleadings, the rival
party can always record his objection in writing to the
objectionable portion of the affidavit. The law is well
settled. A party to the suit cannot be permitted to travel
beyond his pleadings. If any evidence is tried to be
adduced which has no foundation in the pleadings, the
Court always has a power to discard such evidence
while finally deciding the suit or proceeding."
6.6 Upon above submissions, learned Senior Counsel Mr.
Mehul S. Shah prays to allow this petition and to grant relief
claimed herein above.
7. On the other hand, Learned Senior Counsel Mr. DC Dave
would submit that single writ petition challenging three different
orders having delivered on three different dates independent of
each other is not maintainable. While supporting the impugned
orders, he would submit that by way of application, secondary
evidence cannot be taken into consideration and exhibited and
the learned trial Court has rightly observed so while dismissing
application Exh. 503. He would further submit that according to
the learned trial Court, without following procedure laid down in
sections 64 and 65 of the Evidence Act, the document cannot be
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treated to be secondary evidence. He would further submit that
the document at Mark 502/4 was a photostat copy. He would
further submit that though the pleading identifies the disputed
document, but the photostat copy cannot be treated to be the
same of the original one until it is proved by leading necessary
evidence as laid down in the Evidence Act. He would further
submit that the learned trial Court has rightly rejected the
application for not exhibiting the document at Mark 502/4. As
far as rejection of application Exh. 669 (Annexure B) for issuance
of witness summons is concerned, he would submit that while
rejecting the application, the learned trial Court has reproduced
the issues, which are framed in the suit and believed that there
is no issue framed in regards to the disputed document, which
rest burden of proof upon the petitioner. He would further
submit that basic object of filing the Special Civil Suit No.53 of
2002 is to quash and set aside the compromise decree arrived at
between the plaintiffs and power of attorney of the defendants.
This kind of nature of the suit does not have any place of
disputed document. He would further submit that it is a clear
finding on the part of the learned trial Court that there is no
need to examine witness Mr. Shitalbhai Sanatbhai Mehta and
therefore, application at Exh.669 was dismissed. He would
further submit that in view of the said findings, affidavit in lieu
of examination in chief filed at Exh.688 has rightly been
discarded by the learned trial Court believing that the evidence
of Mr. Shitalbhai Sanatbhai Mehta is not necessary. Thus, he
submits that the learned trial Court has not committed any error
in rejecting three applications.
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7.1 Learned Senior Counsel Mr. DC Dave would further submit
that at earlier point of time, two applications for production of
documents was rejected by the Court below and thereafter,
applications of same nature, but with different averments were
moved by the plaintiffs, more particularly, an application for
exhibiting the document Mark 502/4. Thus, he would submit
that application at Exh.503 is also barred by principles of res
judicata.
7.2 In support of his submissions, learned Senior Counsel Mr.
DC Dave relied upon the judgment in case of S. Ramachandra
Rao Vs. S. Nagabhushana Rao and others reported in 2022 SCC
Online SC 1460, more particularly, para 27 to 30, they reads as
under:-
"27. The principle that the doctrine of res judicata is
attracted not only in separate subsequent proceedings
but also at subsequent stage of the same proceedings is
hardly of any doubt or dispute. A 3-Judge Bench of this
Court in the case of Y.B. Patil (supra), has tersely
underscored this principle of law in the following terms:
-
"4. It is well settled that principles of res judicata
can be invoked not only in separate subsequent
proceedings, they also get attracted in subsequent
stage of the same proceedings. Once an order
made in the course of a proceeding becomes final,
it would be binding at the subsequent stage of
that proceeding."
28. It is also well-settled, as laid down in several
decisions, that even an erroneous decision remains
binding on the parties to the same litigation and
concerning the same issue, if rendered between the
same parties by a Court of competent jurisdiction. In
the case of Gorie Gouri Naidu (supra), this Court, inter
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alia, said,
"4..The law is well settled that even if erroneous,
an inter-party judgment binds the party if the
court of competent jurisdiction has decided the
lis."
29. In Makhija Construction & Engg. (P) Ltd. (supra),
this Court also clarified the distinction between a
precedent and the operation of the doctrine of res
judicata in the following terms: -
"19. A precedent operates to bind in similar
situations in a distinct case. Res judicata operates
to bind parties to proceedings for no other reason,
but that there should be an end to litigation."
30. In S. Nagaraj (supra), it was also made clear by this
Court that binding decisions cannot be ignored even on
the principles of per incuriam because those principles
have relevance to the doctrine of precedents but have
no application to the doctrine of res judicata.
7.3 Lastly, it is contended by Learned Senior Counsel Mr. Dave
that nature and scope of the High Court's jurisdiction under
Article 227 of the Constitution of India is very limited. He would
further submit that the High Court does not act as that of
appellate Court and it has no power to review the evidence upon
which determination has been taken place. He would further
submit that the Court should not venture into interfering with
the impugned order under the supervisory power. In support of
this submission, he has relied upon the judgment of the Hon'ble
Apex Court in case of Mohd. Yunus v/s. Mohd. Mustaqim
reported in AIR 1984 SC 38 and Garment Crafts Vs. Prakash
Chand Goel reported in (2022) 4 SCC 181.
7.4 Upon such submissions, Learned Senior Counsel Mr. DC
Dave prays to dismiss the petition.
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8. Regard being had to the rival submissions of learned
advocates for both the parties, it could be noticed that by single
writ petition, the petitioner has challenged three different orders
delivered on three different dates viz. order passed below
Exh.503 dated 14.12.2023; order passed below Exh.669 dated
5.4.2024 and order passed below Exh.688 dated 26.4.2024. The
orders have no common thread and they are different, distinct
and unrelated. At least, order below Exh.503 is not related to
order below Exhs.669 and 688. In this regard, in the judgment
of Madras High Court in case of Management, E.I.D.Parry India
Ltd. Versus Assistant Commissioner Of Labour-I and others
reported in 2001(3) LLJ 1335, in para 26 and 27, it has been
held as under:-
"26. In the light of the above pronouncement of the
Apex Court as well as the earlier Division Bench of this
Court, I am of the considered view that the petitioner
herein cannot be permitted to file a single writ petition
against the orders passed by the Assistant
Commissioner of Labour-1, (Controlling Authority
under the Payment of Gratuity Act) in I. A. Nos.140 to
179 of 1998 in P. G. Applications Nos.67 to 106 of
1999. The petitioner has to challenge each order passed
in each Interlocutory Application arising out of the
Payment of Gratuity Application by filing separate writ
petitions and the writ petitioner cannot be permitted to
join all the causes of action, and challenge separate and
identical orders passed by the very same authority by
filing a single writ petition. The cause of action for each
of the application is different and the application before
the forum below is also different and distinct.
27. In the circumstances, the petitioner is not entitled
to maintain a single writ petition. The Division Bench
judgment relied upon by the learned counsel for the
petitioner, in my considered view, will not enable the
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petitioner to maintain a single writ petition. In the light
of the pronouncements of the Apex Court referred to
above, as well as earlier Division Bench, this Court
holds that the petitioner is not entitled to maintain a
single writ petition and it has to file separate writ
petitions challenging each one of the orders passed in
each one of the Interlocutory Applications arising out of
separate Payment of Gratuity Applications.
9. Now, let examine the validity, legality and propriety of each
order challenged in a single writ petition.
10. Exh. 503 was moved before the learned trial Court for
exhibiting Mark 502/4 - disputed document. The contention in
this regard was that in prior point of time, two applications were
preferred by the petitioner for production of disputed document
from the possession of the plaintiffs of the suit, but since the
plaintiffs did not produce the disputed document, it constrained
the defendants to file the photostat copy of the said disputed
document at Mark 502/4. The application was moved to exhibit
Mark 502/4 treating it to be a secondary evidence. Section 62 of
the Evidence Act defines primary evidence. Section 63 of the
Evidence Act defines the secondary evidence; section 64 deals
with production of document by primary evidence and section 65
deals with cases in which secondary evidence relating to
documents may be given. Sections 64 and 65 of the Evidence
Act read as under:-
64. Proof of documents by primary evidence.--
Documents must be proved by primary evidence except
in the cases hereinafter mentioned.
65. Cases in which secondary evidence relating to
documents may be given.--Secondary evidence may be
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given of the existence, condition, or contents of a
document in the following cases: --
(a) when the original is shown or appears to be in the
possession or power -- of the person against whom the
document is sought to be proved, or of any person out
of reach of, or not subject to, the process of the Court,
or of any person legally bound to produce it, and when,
after the notice mentioned in section 66, such person
does not produce it;
(b) when the existence, condition or contents of the
original have been proved to be admitted in writing by
the person against whom it is proved or by his
representative in interest;
(c) when the original has been destroyed or lost, or
when the party offering evidence of its contents cannot,
for any other reason not arising from his own default or
neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be
easily movable;
(e) when the original is a public document within the
meaning of section 74;
(f) when the original is a document of which a certified
copy is permitted by this Act, or by any other law in
force in 1 [India] to be given in evidence;
(g) when the originals consist of numerous accounts or
other documents which cannot conveniently be
examined in Court, and the fact to be proved is the
general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the
contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but
no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general
result of the documents by any person who has
examined them, and who is skilled in the examination
of such documents."
11. In order to prove the secondary evidence, it is incumbent to
prove that original appears to be in possession or in the power
against a person against whom the document is sought to be
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proved, or of any person out of reach of, or not subject to, the
process of the Court, or of any person legally bound to produce
it, and when, after the notice mentioned in section 66, such
person does not produce the primary one; not mere existence,
but the condition and content of the original have to be proved to
be admitted in writing by the person against whom it is proved
or by his representative in interest; or in a case where original
has been destroyed or lost, or when the party offering evidence of
its contents cannot; for any other reason not arising from his
own default or neglect, produce it in reasonable time; or when
the original is of such a nature as not to be easily movable; or
when the original is a public document or the certified copy of
the original is permitted by any other law in force in India to be
given in evidence; or the originals consist of numerous accounts
or other documents which cannot conveniently be examined in
Court.
12. These are the indicia, which is necessary to establish
before document is to be exhibited as secondary evidence.
Learned Senior Counsel Mr. Mehul S. Shah failed to point out
that any of the indicia has been followed by the petitioner for
referring document to be exhibited as secondary evidence. The
learned trial Court, while discarding the application to exhibit
the document as secondary evidence, took assistance of the
judgment of this Court in case of Sardar Sarovar Narmada
Nigam Limited Versus Rupdevsinhji Dolatsinhji Gohil-decd
reported in 2021 (4) GLR 3361, more particularly, para 53
thereof, which reads as under:-
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"53. In the plaint, I do not find any pleadings as to why
Xerox copies of the documents are being relied upon. In
other words, there are no pleadings to lay a foundation
for the purpose of adducing secondary evidence. There
is nothing to indicate in the plaint nor in the
examination-in-chief of the plaintiff as to in whose
possession the original documents are and in what
manner, the photocopies were obtained. To put it in
other words, the plaintiff could be said to have failed to
explain as to what were the circumstances under which
the photostat copies were prepared and who was in
possession of the original documents at the time its
photographs were taken. On the other hand, in the
written arguments Exh.114 filed on behalf of the
defendants, a specific plea has been raised as regards
the documentary evidence adduced. I may quote the
true English translation of Para-2 of the written
arguments on record (Exh.114):-
"The Plaintiff has tendered his examination-in-
chief in the form of an affidavit at Exhibit-35 and
other documents at Exhibits-36 to Exhibit-94. The
Hon'ble court has passed an order below the said
affidavit at Exhibit-35 that "The documentary
evidences at mark-34/1 to 34/59 referred to in the
affidavit be exhibited on the condition that the
evidentiary value of the same shall be determined
at the stage of final hearing." But, the plaintiff has
not proved any of the said documents before the
Hon'ble court. Most of the documents at mark-
34/1 to 34/59, submitted by the plaintiff, are the
xerox copies and none of the said documents have
been proved by the plaintiff in accordance with the
provisions of the Evidence Act."
13. The petitioner is also silent that whether the witness has
deposed that in whose possession, the original document is and
how the photostat copy of the disputed document is obtained.
To be remembered that the petitioner has already examined
himself and during his deposition, he has not attempted to
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exhibit the disputed document as secondary evidence by leading
evidence as per section 65 of the Evident Act. In these
circumstances. This Court is of the considered opinion that the
learned trial Court has not committed any error.
14. As far as rejection of application Exh.669 is concerned, this
was an application filed by the petitioner to issue witness
summons to Mr. Shitalbhai Sanatbhai Mehta. In regards to this
application, it was argued that Order 16 Rule 1A of the CPC is
independent to the provisions of Order 16 Rule 1 of the CPC and
it permits the petitioner to examine the witness even if no
witness list has been produced as per Order 16 Rule 1 of the
CPC. It is also argued that it was a prerogative of the petitioner
to examine the witness. It was also submitted that father of
witness Mr. Shitalbhai Sanatbhai Mehta had signed as witness
to the disputed document and therefore, in order to prove the
contents and signature of the party with regard to the disputed
document, deposition of witness Mr. Shitalbhai Sanatbhai Mehta
is necessary. The learned trial Court dismissed the application
on the ground that none of the issue framed at Exh.279 pertains
to the legality and validity of the disputed document, which cast
buden of proof upon the petitioner. The learned trial Court while
rejecting the application has reproduced the issues and believed
that the Court can reach to the conclusion without referring
disputed document and as such, no need to examine witness Mr.
Shitalbhai Sanatbhai Mehta. Thus, the learned trial Court has
not rejected the application at Exh.669 on the count of
maintainability, but believed that oral evidence of witness is not
required.
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15. On plain reading of Order 16 Rule 1 and 1A of the CPC
indicates that Order 16 Rule 1A enables a party to the suit to
produce a witness without recourse to the processes of the court.
It is only when he wants to ensure his attendance that he
applies and obtains witness-summons under sub-rule (1) of Rule
1 of Order 16. But sub-rule (3) of Rule 1 of Order 16 provides
that in the case of a witness not mentioned in the list to be
presented under sub-rule (1) of Rule 1 of Order 16, the party has
to obtain permission of the court by showing sufficient cause for
such omission and the court before granting such permission is
required to record reasons for giving such a permission. The
words "subject to the provisions of sub-rule (3) of rule 1" show
that Rule 1A applies to witnesses whose names have been set
out in the list presented under sub-rule (1) of Rule 1 of Order 16.
If the party calling a witness has omitted to present the list or
even if the list is filed, but the witness does not figure in such a
list, sub-rule (3) of Rule 1 would apply. Before such a witness is
called, the party calling him, has to show cause for the omission
and the court has to record reasons for permitting him to be
examined. If the parties fail to obtain the summonses through
the court for attendance of witnesses, they are at liberty to have
the witness brought without the assistance of the court under
Rule 1A of Order 16 of the CPC. In these circumstances, the
application filed to call the summons straightway without
establishing any reason was not permissible. Even otherwise,
the learned trial Court did not reject application Exh.669 on the
ground of maintainability, but believed that presence of the
witness is not necessary as the disputed document is not a part
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of the dispute raised between the parties and no issues are
framed. I see no illegality in the order to that extent.
16. Once the Court has rejected the application to summon the
witness, namely, Mr. Shitalbhai Sanatbhai Mehta, the plaintiff
brought him as his own witness and filed affidavit-in-chief under
Order 18 Rule 4 of the CPC at Exh.688, which was strongly
objected. The Court discarded the affidavit produced at
Exh.688. Qua this order, it was argued by learned Senior
Counsel Mr. Mehul S. Shah that if the witness is in the Court on
its own or even brought by the party, his deposition cannot be
discarded. There is no provision in the CPC to permit the Court
to discard the deposition of the witness. The submission is
unfathomable, particularly, in the circumstances that the Court
while rejecting application at Exh.669, believed that the presence
of the witness is not necessary to decide the dispute between the
parties. Yet, ignoring such order, the affidavit-in-chief at
Exh.688 of the same witness was produced. This is an attempt
to water down the judicial order passed by the learned trial
Court below Exh.669. The petitioner tried to circumvent the
order below Exh.669 by placing affidavit of witness Mr.
Shitalbhai Sanatbhai Mehta at Exh.688. The petitioner cannot
act as appellate Court to water down the effect of the order
passed by the Court. This attempt on the part of the petitioner
is deplorable. The learned trial Court has rightly discarded the
affidavit in toto, as the presence of the witness was not
necessary for any party for proving any of the issues. I see no
reason to interfere with the impugned order passed below
application Exh.688.
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17. The timing of filing of single writ petition challenging three
different orders are also necessary to envision. The petitioner
has filed single writ petition on 11.6.2024 challenging three
orders, date of which are set out in the earlier part of the
judgment. Vide Exh. 691, the petitioner has filed pursis before
the learned trial Court declaring that her oral evidence is
completed subject to any benefit which is available under the law
and within the limits of law on 29.4.2024. Ordinarily, such a
pursis has to be recorded, but the learned trial Court passed an
order below pursis and closed right to lead documentary
evidence, in addition to right to lead oral evidence and with that
order, the closing pursis was taken on record. It implies that on
29.4.2024, within the knowledge of the petitioner and on her
declaration of right to lead evidence was closed. Almost one and
half months thereafter, the present petition is filed. It is
informed by learned counsel during the hearing that in some
other proceedings, this Court has directed the learned trial Court
to decide the suit proceedings in the time bound manner. Thus,
it appears that the petitioner has filed the petition to circumvent
the direction issued by this Court for disposal of the suit in a
time bound manner. Thus, the conduct of the petitioner is
despicable and repulsive. After claiming of right to lead
evidence on 29.4.2024, a single writ petition was filed by the
petitioner challenging three different orders on 11.6.2024,
perhaps with a view not to reach to conclusion in suit pending
since 2002.
18. So far as authorities cited by learned Senior Counsel Mr.
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Mehul S. Shah are concerned, they are on the facts of that
particular case and therefore, they do not render any assistance
to the petitioner.
19. Apt to note that the scope and ambit of exercise of power
and jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained by the catena of
decisions. The exercise of power under this article involves a
duty on the High Court to keep inferior courts and tribunals
within the bounds of their authority and to see that they do the
duty expected or required of them in a legal manner. The power
with the Court is not vested with any unlimited prerogative to
correct all kinds of hardships or wrong decisions made within
the limits of the jurisdiction of the subordinate courts or
tribunals. The Court can't exercise it's power till and until the
cases is made out of serious dereliction of duty and flagrant
violation of fundamental principles of law or justice, where if the
High Court does not interfere, a grave injustice remains
uncorrected. The High Court while acting under article 227 of
the Constitution Of India is prevented from exercising the power
as an appellate court or substitute its own judgment in place of
that of the subordinate court to correct an error, which is not
apparent on the face of the record until it is established that
there is no evidence at all to justify or the finding is so perverse,
that no reasonable person can possibly come to such a
conclusion, which the court or tribunal has come to. [See:
Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 &
Garment Crafts Vs. Prakash Chand Goel reported in (2022) 4
SCC 181]
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20. For the foregoing reasons, the writ petition is bereft of
merits and stands dismissed.
Sd/-
(J. C. DOSHI,J)
SHEKHAR P. BARVE
