Gujarat High Court
Mahendra Sharma vs H S Sumra on 17 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18089 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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MAHENDRA SHARMA
Versus
H S SUMRA & ORS.
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Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1,6
MR. NISARG D SHAH(7299) for the Respondent(s) No. 2
MR. ZALAK B PIPALIA(6161) for the Respondent(s) No. 7
NOTICE SERVED for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 3
SUNIL H PRAJAPATI(8350) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 17/04/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Nisarg D.
Shah waives service of Rule on behalf of respondent no.2 and
Mr.Zalak B. Pipalia, learned advocate waives service of Rule
on behalf of respondent no.7. The presence of other
respondents is not required.
2. With the consent of learned advocates for the respective
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parties, the matter is taken up for final hearing.
3. The present writ application has been filed under Article
227 of the Constitution of India seeking following reliefs.
(A) YOUR LORDSHIPS may be pleased to issue a writ of
mandamus/certiorari or a writ in the nature of
mandamus/certiorari or any other appropriate writ, order or
direction quashing and setting aside impugned order below
Exh.181 dated 18.08.2023 passed by the Ld. 7th Additional
District Judge Vadodara Karjan in Trust Suit No.1/2020 (Old
No.24/2015) (ANNEXURE-F) in the interest of justice;
(B) During the pendency and final disposal of the present
petition, YOUR LORDSHIPS may be pleased to stay the
implementation of the order below Exh.181 dated 18.08.2023
passed by the Ld. 7th Additional District Judge Vadodara
Karjan in Trust Suit No.1/2020 (Old No.24/2015) (ANNEXURE-
F) and further be pleased to stay the proceedings of Trust Suit
No.1/2020 (Old No.24/2015) pending before the District Court
Vadodara Karjan; 7th Add
(C) Pass any such other and/or further orders that may be
thought just and proper, in the facts and circumstances present
case;
4. The respondent nos.1 and 2 herein are original plaintiff
who filed Trust Suit No.24 of 2015 against present petitioner
who is respondent no.3 and against rest of the respondents
herein. The respondent No.7 happens to be original defendant
No.5 which is Trust and plaintiffs are Trustee of original
defendant No.5-Trust.
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4.1 The defendant No.5 has in its written statement
categorically made an averment that the suit filed by the
plaintiffs is true and correct and the same be allowed, meaning
thereby, it is supporting the case of plaintiffs being supportive
defendant.
4.2 When the trial of the suit began, at the time of cross-
examination of the plaintiffs, a question arose as to who will
first cross-examine the plaintiffs and at this stage, an
application being filed by the present petitioner along with
defendant Nos.1 and 4, which came to be allowed by the Trial
Court, thereby passed an order that defendant No.5 was
directed by the Trial Court to first cross-examine the plaintiffs.
4.3 Now, at the stage of recording evidence of defendants,
once again defendant nos.1, 3 and 4 have filed the impugned
application below Exhibit 181 requesting the Trial Court to
direct the defendant No.5 to first lead its evidence being a
supporting defendant to the plaintiffs.
4.4 After hearing the parties, the Trial Court, vide its
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order dated 18.08.2023 has rejected the impugned application,
which is challenged by the defendant No.3 by way of the
present writ application.
SUBMISSION OF THE PETITIONER - DEFENDANT NO.3
5. Learned advocate Mr. S. P. Majmudar with learned
advocate Mr. Jamshed Kavina would submit that the impugned
order passed by the Trial Court is contrary to the settled
principle of law and against the rule of procedure and
provisions of Evidence Act.
5.1 Learned advocate Mr. Majmudar would further submit
that it is undisputed fact that defendant No.5 is supporting the
case of plaintiffs and it is not an adverse party, thereby,
defendant no.5 is required to first lead the evidence when the
stage of examination of defendant commence.
5.2 Learned advocate Mr. Majmudar would further submit
that bare reading of Order XVIII of Civil Procedure Code, 1908
(hereinafter referred to as "CPC") read with Sections 135, 137
and 138 of Evidence Act, would lead to suggest that in case
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where one of the defendant is supporting the case of the
plaintiffs then considered as supporting party. Such party is
required to first lead evidence and then after, the other
contesting defendants, who are adverse party to the case of the
plaintiffs are required to begin or lead their evidence.
5.3 Learned counsel Mr. Majmudar would further submit
that the impugned order is passed exceeding the jurisdiction so
vested with the Trial Court and erroneously observed that
applicants have not shown any prejudice would be caused to
them in the impugned application.
5.4 Learned counsel Mr. Majmudar would further submit
that when in earlier point of time, defendant No.5 was
directed to first cross-examine the plaintiffs before other
defendants to cross-examine the plaintiffs, it would be not
appropriate on the part of the Trial Court to reject impugned
application.
5.5 To buttress his argument he has relied upon the
following decisions of this court:-
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(i) Shah Hiralal Himatlal Vs. M.G.Pathak reported in
1964 (0) GLR 327 (para- 4)
(ii) Chandrakant Chimanlal Shah Vs. Chimanlal
Ambalal Shah reportedin 1992 (2) GLR 1411 ( para- 3
and 4)
5.6 Making the above submissions, Mr. Majmudar, learned
advocate appearing for the petitioner would request this Court
to allow the present writ application.
SUBMISSION OF THE RESPONDENTS
6. Per Contra, learned advocate, Mr. Zalak B. Pipalia
appearing for the respondent No.7 - defendant No.5 being
contesting respondent would submit that there is no error
much less any gross error committed by Trial Court while
rejecting the application.
6.1 Learned advocate, Mr. Pipalia would further submit
that the petitioner has not shown any serious prejudice to be
caused to them if defendant No. 5 will not be first examined
and in that view of the matter, the order impugned may not
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be disturbed by this Court while exercising its power under
Article 227 of the Constitution of India.
6.2 Learned advocate Mr. Pipalia would further submit
that merely because in earlier point of time, defendant No.5
was directed to first cross-examine the plaintiffs would not
itself allow the petitioner to claim as a matter of right that
defendant No.5 is required to first lead evidence.
6.3 Learned advocate, Mr. Papalia would further submit
that in absence of any prejudice shown by the petitioner in
support of their impugned application, it would not be
appropriate for the defendant No.5 to first lead its evidence
prior to leading of evidence of other contesting defendants.
6.4 Learned advocate, Mr. Pipalia would further argue that
the proposition of law laid down in the decisions cited by
learned advocate Mr. Majmudar would not be applicable to the
facts of the present case and as such, it is not a mandatory
provision of law, thereby, non contesting or supporting
defendant will have to first lead the evidence.
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6.5 To buttress his argument, he has relied upon the
decision of this Court in the Amratlal harivallabhdas Vs. Juna
Madhupura Vyapari Mahajan Limited reported in 1976 (0) GLR
1007.
7. Learned advocate, Mr. Vishal C. Mehta for learned
advocate, Mr. Nisarg D. Shah, appearing for respondent no.2 is
adopting the argument so canvassed by learned advocate Mr.
Pipalia.
8. Making the above submissions, learned advocates
appearing for the respective respondents would request this
Court to dismiss writ application.
9. No other and further submissions being made by any of
respective learned advocates appearing for the parties.
ANALYSIS
10. The short question, which would fall for consideration of
this Court is as to whether any gross error and/or jurisdictional
error committed by the Trial Court while rejecting the
impugned application, thereby, not acceded to the request of
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defendant nos.1, 3 and 4 and whereby, not directed defendant
No.5 to first lead evidence prior to them?
11. The facts of the case, which are so recorded hereinabove,
are undisputed one. It is not in dispute that defendant No.5 is
a trust and plaintiffs are its trustees. The defendant No.5 in
clear terms in its written statement has supported the case of
plaintiffs.
12. So, the defendant no.5 is a supporting defendant to the
case of the plaintiffs. It is further undisputed that while cross-
examined plaintiffs on request made by defendant Nos.1, 3 and
4, the Trial Court has directed defendant No.5 to first cross-
examine the plaintiff.
13. Now, it is at the stage of recording of the evidence of
defendants, the impugned application came to be filed by
defendant Nos.1, 3 and 4 requesting the Trial Court to direct
the defendant No.5 to first lead its evidence in support of his
pleading. As such, considering the case law on the subject,
issue germane in the matter is squarely covered by following
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two decisions of this court
14. It would be apt to first considered the decision of this
Court delivered in the case of Shah Hiralal (supr), wherein this
Court has observed and held as under:-
"4. So far as the defendants go, the question which of
tree defendants should begin has not been dealt with
in Order 18, C. P. Code. But on general principle, if
any of the defendants supports the plaintiff in whole
or in part, then he should address the Court and lead
his evidence first before the other defendants who do
not support wholly or in part the plaintiff's case. The
order in which defendants lead evidence becomes
important only when some of them support the
case of the plaintiffs in whole or in part while
the others do not. If all the defendants
completely oppose the plaintiff's case, then the
question of order of leading evidence amongst
the defendants is immaterial. It is only when the
defendants are divided into two groups, one group
consisting of the defendants supporting the plaintiff's
case in part and the other group consisting of
defendants, who do not support the plaintiff's case in
any part that the question of order of leading evidence
becomes important. In such cases among
defendants the order of leading evidence should
be as follows:
(1) Those defendants who fully support the case
of the plaintiff.
(2) Those defendants who partly support the case
of the plaintiff.
(3) Those defendants who do not support the casa
of the plaintiff in any part."
(emphasis supplied)
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15. Likewise, in a case of Chandarakant Chimanlal Shah
(Supra) also, this Court (Hon'ble Mr. Justice R.K.Abichandani
as he then was) has elaborated the issue and after considering
Sections 135, 137 and 138 of Evidence Act read with Order
XVIII Rule 1 and 2 of CPC held thus:-
"4. Under section 135 of the Indian Evidence Act, 1872, it
has been provided that the order in which witnesses are
produced and examined would be regulated by the law
for the time being in force relating to Civil and Criminal
Procedure respectively and in absence of any such law
by the discretion of the Court. Order 18 Rule 1 refers to
right to begin which ordinarily is with the plaintiff as indicated
therein and Rule 2 lays down that the party having the right to
begin shall state his case and produce his evidence in support
of the issues which he is bound to prove on the day fixed for
the hearing of the suit or on any other adjourned day and
thereafter the other party shall state his case and produce his
evidence. Sub-rule (2) of Rule 2 of Order 18 does not provide
for the order in which the other party has to lead evidence
when there are more than one defendants. Thus, when there
is no specific provision on this aspect, the matter would
rest on the discretion of the Court as provided in
Section 135 of the Evidence Act and that discretion,
obviously, has to be exercised on sound judicial
principles, which, in the instant case, are reflected in
the decision of this Court in Hiralal''s case (supra). The
principles laid down in that decision have already been
adhered to by the Courts in Orissa as can be seen from
the decision in Jhumpa Bewa and Others Vs. Sahadeb
Rout and Others, . After referring to the order of leading
evidence indicated by this Court in Hiralal''s case (supra), the
Orissa High Court observed that these principles are adhered
to by all the Courts in the State of Orissa. It was observed that
the Courts in such cases cannot merely act as a passive agent
and as a master of Court proceedings, the Presiding Officer
shall guide the trial of a suit being fully aware of the
pleadings and the nature of evidence that the parties are
expected to adduce before the Court. A similar view was taken
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by the Andhra Pradesh High Court in Bommidi Vasudeva
Murthy v. Bommidi Bhasker Rao and Ors., (reported in ILR
1975 AP 307, 308)].
5. The provisions of Order 18 Rules 1 and 2 and Sections 137,
138 of the Evidence Act would indicate that when the
plaintiff''s case is fully supported by some of the defendants,
these defendants are not adverse party and it would be just
and proper for the Court to ask them to initially cross-examine
the plaintiff and then ask the contesting defendants (adverse
party) to cross-examine the plaintiff particularly when the
adverse party so desires Therefore, it would not be
appropriate to direct the real contesting party to first disclose
his defence and then keep in a reserve the defendants
supporting the plaintiff to destroy his defence. Prudence
clearly demands that the supporting defendants should be
considered on rhe side of the plaintiff and their leading
evidence must immediately follow the plaintiffs'' evidence so
that the contesting defendants can meaningfully exercise their
right of leading evidence in accordance with the provisions of
Order 18 Rules 1 and 2 of the Civil Procedure Code. In other
words, it would be in consonance with the scheme of
those provisions to require the supporting defendants to
lead their evidence immediately on the completion of
the evidence of the plaintiff because the supporting
defendants would not be, in true sense, the other party
that is the adverse party. In this view of the matter, it is
clear that the Trial Court has committed an error in exercise of
its jurisdiction in not issuing direction as sought for by the
petitioner in his application Exh. 167 by asking the respondent
No. 2 to lead evidence before the petitioner could lead his
evidence. This Revision Application is, therefore, allowed and
the impugned order dated 18th July, 1989 passed below Exh.
163 by the Trial Court is hereby set aside and the application
Exh. 163 is granted by directing the respondent No. 2 to lead
evidence in the suit if she so desires before the petitioner could
lead his evidence."
(emphasis supplied)
16. So, after going through both these aforesaid decisions and
its ratio, if applied to the facts of the present case, the Trial
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Court has surely committed a gross error in law, which is
required to be corrected by this court.
17. So far as decision relied upon by learned advocate, Mr.
Pipalia in the case of Amaratlal Harivallabhdas (Surpa), the
facts are not so similar to the facts at hand. It is not the case
of a supporting defendant to first lead evidence like present
one rather it appears from bare reading judgement that trial
court had directed supporting defendant to first cross-examine
another defendant then plaintiff to cross-examine which in fact
already done in past by trial court in case on hand also. So, in
the peculiar facts and circumstances of that case, then the
Single Judge of this Court has observed as under:-
"1. In a suit filed by the plaintiff-opposite parties Nos. 1 to 3
who will hereafter is referred to as the plaintiffs-against the
petitioner (original defendant No. 2) and opposite party No. 1
(original defendant No. 1) inter alia on the basis of sub-letting
of the suit premises by opposite party No. 4 to the petitioners
a question arose when defendant No. 1 i. e. opposite party No.
4 entered the box as to who should cross-examine the said
defendant. In view of the allegations in the plaint and for the
sake of clarity we will be describing the petitioner as the sub-
tenant opposite party No. 4 as the tenant and the plaintiffs-
opposite parties Nos. 1 to 3 as the landlords. So the question
which arose was whether the tenant should be cross-
examined first by the sub-tenant or the landlords. The Trial
Court by its decision dated July 18 1974 directed that the
sub-tenant will cross-examine the tenant first and it will be
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followed by the cross-examination of the tenant by the
landlords. It is against this order that the petitioner has come
in revision to this Court. It may be stated that the claim of the
sub tenant was that he was a lawful sub-tenant brought upon
the premises by the tenant. As against this the case of the
landlords was that the subletting to the said subtenant was
illegal.
3.........................I need not express any opinion at this stage
on the question whether the order in which the parties shall
lead evidence before the Court would amount to a case de-
cided or not, because that question does not crop up before
me. But so far as the order of cross-examination of an adver-
sary by two contesting parties is concerned, an order passed
by the trial Court in exercise of its discretion would not amount
to a case decided.
4. This decision, however, would not prevent the petitioner
from moving the trial court for further cross-examination of a
party or its witness if any material damaging his case is
brought on record as a result of the cross-examination of the
adverse party or its witnesses by the landlords after the
cross-examination of the petitioner is over. In such a case, it
will be upto the petitioner to make a request to the trial Court
to permit him to cross-examine the adverse party or its wit-
nesses with regard to any damaging material brought out in
the cross-examination of the plaintiffs and it will be for the
trial court to pass appropriate orders in that behalf."
(emphasis supplied)
18. Thus, in view of the aforesaid facts and circumstances of
the case and following the ratio of afore said two decisions so
cited by learned advocate of petitioner, if applied to the facts
of the present case, I am of the view that the impugned order
is not passed in consonance with the law laid down by this
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Court as well as passed contrary to the Order XVIII Rule 1 and
2 CPC read with Sections 135, 137 and 138 of Evidence Act.
19. It is also well settled law that High Court should
sparingly exercise its power under Article 227 of the
Constitution of India only in appropriate cases in order to keep
the subordinate courts within the bounds of their authority
[Waryam Singh v/s Amarnath - AIR 1954 SC 215]. Having
arrived at the aforesaid conclusion and having found that trial
Court has committed procedural irregularity which requires to
be corrected by this Court while exercising its power under
Article 227 of the Constitution of India thereby, interference
requires in the impugned order, thereby, it is required to be
quashed and set aside, which is hereby quashed and set aside
and consequently, the impugned application filed below exhibit
181 is hereby allowed.
20. At this stage, learned counsel appearing for the respective
parties state that the suit is of the year 2015 and it is at the
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stage of recording of the evidence of defendants and therefore,
a suitable direction may be issued to the Trial Court for
expeditious adjudication of the suit.
21. It is open for the respective parties to request the Trial
Court for expeditious adjudication of the suit.
22. If such a request will be made to the Trial Court, the
Trial Court may consider the same sympathetically as the suit
is of the year 2015.
23. In view of the aforesaid, the impugned application filed
below Exhibit 181 is allowed by this Court and defendant No.5
is required to first lead evidence if so desire and the same may
be exercised by defendant no.5 within a period of one month
from the date of receipt of the copy of this order.
24. As a sequel, the present writ application is hereby
allowed. Rule is made absolute to the aforesaid extent. No
order as to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
