Gujarat High Court
Jankilal Jaggannath Shah vs Dahod Nagar Seva Sadan on 24 July, 2025
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C/SCA/10023/2025 JUDGMENT DATED: 24/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10023 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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JANKILAL JAGGANNATH SHAH & ANR.
Versus
DAHOD NAGAR SEVA SADAN & ORS.
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Appearance:
MANAN K PANERI(7959) for the Petitioner(s) No. 1,2
MR. DHAVAL U. TRIVEDI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 3,4,5,8,9
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/07/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned AGP Mr. Dhaval U.
Trivedi waives service of Rule on behalf of the respondent
No.3, 4, 5, 8 and 9. Considering the issue germane in the
matter, the presence of the other parties is not required.
2. The present application is filed under Article 227 of the
Constitution of India, seeking the following relief:-
"A. Your Lordships may be pleased to admit and allow this Petition
and be pleased to quash and set aside the order dated 22.04.2025
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passed below Ex. 331 by the Learned Principal Senior Civil Judge,
Dahod in Regular Civil Suit No. 117 of 2011 and be further pleased
to allow the prayers as sought in the Application at Ex. 331;
B. Your Lordships may be pleased to pass any other and further
order as this Hon'ble Court may deem fit in interest of Justice;
C. Award Costs."
3. Learned Advocate Mr.Manan K. Paneri would submit that
the petitioners herein are the original plaintiffs of Regular Civil
Suit No. 117 of 2011, filed against the respondents herein,
pending before the Principal Senior Civil Judge, Dahod,
wherein the impugned application came to be filed by the
petitioners below Exhibit 331 for issuance of witness summons
to respondent No. 4-defendant No. 4 for production of
documents and his examination.
4. Learned advocate Mr. Paneri would further state that
after hearing the parties, the Trial Court, vide its impugned
order dated 22nd April 2025, rejected the application, which is
challenged in the present application.
SUBMISSION OF THE PETITIONERS-PLAINTIFFS
5. Learned Advocate Mr. Paneri would submit that the Trial
Court has erred in observing that respondent No. 4/defendant
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No. 4 herein could not have been called upon by the plaintiffs
as witness, that too for the production of documents.
5.1. Learned Advocate Mr. Paneri would further submit
that as per Order 16 Rule 14 of the Civil Procedure Code,
1908 (hereinafter referred to as "CPC"), the Court has all
power to examine any person, including a party to the suit,
thereby, there is no express bar under the CPC, which
prohibits any party to the suit cannot be called by the other
party as his witness.
5.2. Learned Advocate Mr. Paneri would further submit
that in the past, the Chief Officer of respondent No. 1-Nagar
Palika was called as a witness in an application filed below
Exhibit 295 by the petitioners-plaintiffs, which came to be
allowed by the Trial Court vide its order dated 14.11.2024,
thereby, the Chief Officer of respondent No. 1 was examined
and has also submitted documents.
5.3. Making the above submissions, learned Advocate Mr.
Paneri would request this Court to allow the present
application.
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6. Per contra, learned Assistant Government Pleader Mr.
Trivedi would submit that as such, there is no error committed
by the Trial Court while rejecting the impugned application,
inasmuch as the tenor of the impugned application would
suggest that the plaintiffs wanted to examine defendant No. 4
and were not asking for mere production of documents which
are part of government records, which is not permissible in
law.
6.1. learned AGP, Mr. Trivedi, would further submit that it
is true that Order 16 Rule 14 of the CPC permits the Court to
examine any person, including witnesses; however, such power
is to be exercised by the Court and not by the party
concerned. At best, the documents, which are part of
government records, sought by the application, can be
produced by the witness concerned, and to that extent only, so
far as production of documents is concerned, the examination
of such witness be confined.
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6.2. learned AGP, Mr. Trivedi, would submit that as the
impugned application was seeking a wider prayer than what
is permissible in law, such misconceived application requires to
be rejected, which was correctly rejected by the Trial Court.
6.3. Making the above submission, learned Advocate Mr.
Trivedi would request this Court not to entertain the present
application.
7. Heard learned advocate Mr.Manan K. Paneri for the
petitioners and learned AGP, Mr.Dhaval U. Trivedi for
respondent no. No.3, 4, 5, 8 and 9.
8. No other and further submissions are made.
POINT FOR DETERMIANTION
9. The short question that arises for consideration is as to
whether the Trial Court was completely justified in rejecting
the application, thereby, not issuing any witness summons to
defendant No. 4, who was called upon to produce certain
documents, which are enumerated in the impugned
application.
ANALYSIS
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10. It remains undisputed, and as stated by the plaintiffs in
the impugned application, that in the past, the Trial Court has
permitted the plaintiffs to call upon defendant No. 1 by
examining its Chief Officer through witness summons, and
documents were allowed to be produced on record.
11. It further appears that there are certain documents,
which were called upon by the plaintiffs from the defendants
that have not been produced at any given point of time, and
to place those documents, which are government records in
relation to the town planning scheme, sought to be produced
on record, the impugned application came to be filed by the
plaintiffs under Order 16 of the CPC.
12. It is true that defendant No. 4, from whom such
documents were called upon, cannot be forced to depose at the
instance of the plaintiffs, as whenever the term of examination
or taking any oral evidence of the defendants comes, at that
stage, it would be for the defendants to take a call as to
whether any oral examination of its officer is required or not.
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13. Nonetheless, when the documents, which are sought for,
are government records and available with defendant No. 4, to
the extent of the production of such documents, the prayer of
the petitioners-plaintiffs could have been considered by the
Trial Court.
14. As recorded hereinabove, in the past, such an exercise
was already undertaken by the Trial Court, whereby it allowed
an application for witness summons of the plaintiffs calling
upon the Chief Officer of defendant No. 1.
15. Further, there is no bar under the CPC, which disentitles
any party to call upon opponents in the suit to produce
documents and to that extent, to be examined. The plaintiffs
could have sought for such production of documents while
exercising the remedy available under Order 11 of the CPC.
16. Be that as it may, according to my view, the Trial Court
is not completely correct in its view that defendant No. 4
cannot be summoned for the production of documents, which
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are sought for in the impugned application, which are
enumerated at item nos. 1 to 25 of the impugned application.
17. To that extent, the order suffers from illegality and
irregularity, and the Trial Court has not exercised its
jurisdiction in favor of the plaintiffs, thereby, an error of law
is committed, which is required to be corrected by this Court.
18. Learned AGP, Mr.Trivedi is correct to the extent that
defendant No. 4 cannot be compelled by the plaintiffs to come
forward for any oral evidence against his wish and as such,
Order 16 Rule 14 of the CPC empowers only the Court to
exercise discretion in appropriate cases. Undisputedly, such
power was not exercised by the Trial Court in the present
case, inasmuch as the impugned application came to be filed
by the plaintiffs.
CONCLUSION
19. In view of the discussion and reasons, I am of the view
that the impugned application filed by the plaintiff below
Exhibit 331 in Regular Civil Suit No. 117 of 2011 requires to
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be partly allowed to the extent that the Trial Court shall issue
witness summons to the Town Planning Officer, Dahod Town
Planning Office, as provided in para 4 of the impugned
application, thereby, he can be called upon to come with the
documents, which are enumerated in the application.
20. In view of the foregoing reasons, the present writ
application is required to be partly allowed, which is hereby
partly allowed. Rule is made absolute to the aforesaid extent.
No order as to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
