Gujarat High Court
Savitaben Bachubhai Trivedi vs Trivedi Romaben Wd/O Dipakbhai ... on 23 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8131 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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SAVITABEN BACHUBHAI TRIVEDI
Versus
TRIVEDI ROMABEN WD/O DIPAKBHAI BACHUBHAI TRIVEDI & ORS.
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Appearance:
MR SHEGUN B CHOKSHI(12790) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/06/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. S.P. Majmudar with learned
advocate Mr. Shegun Chokshi for the petitioner at length.
2. The present application is 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
and/or any other appropriate writ, order or directions quashing and
setting aside the impugned order dated 17.12.2024, passed below
Exh. 113 in Regular Civil Suit No. 456 of 2015 (Old Special Civil Suit
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No. 184 of 2009) by the 4th Additional Senior Civil Judge, Vadodara
(Annexure-L) and further be pleased to allow the application below
Exh. 113, in interest justice;
(B) During the pendency and final disposal of the present petition,
YOUR LORDSHIPS may be pleased to stay the implementation of the
impugned order dated 17.12.2024, passed below Exh. 113 in Regular
Civil Suit No. 456 of 2015 (Old Special Civil Suit No. 184 of 2009) by
the 4th Additional Senior Civil Judge, Vadodara (Annexure-L) in the
interest of justice ;
(C) Pass any such other and/or further orders that may be thought
just and proper, in the facts and circumstances of the present case.
The Short Facts of the case
3. The petitioner herein is original plaintiff, whereas
respondents are original defendants of Regular Civil Suit No.
456 of 2015 pending before the 4th Additional Senior Civil
Judge, Vadodara. The plaintiff has filed suit seeking
declaration, permanent injunction, partition as well as
challenged the sale-deed executed by defendant No.1 in
favour of defendants No. 4 to 9 in relation to the suit
properties which was dated 28.06.2007 registered with the
competent authority at serial No. 6052. It appears that along
with the suit, only photo copy of the said sale-deed is
submitted by the plaintiff but not given exhibit so far as its
original is not on record.
3.1 The evidence of plaintiff as well as defendants already
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got over and despite an application given by plaintiff to
exhibit the documents which are submitted by her, except
the aforesaid sale deed, all other documents are given
exhibits i.e. received in evidence. At that point of time,
plaintiff did not raise any objection and even allowed to
complete evidence of defendants.
3.2 Thereafter, plaintiff preferred an application below Exh.
105 under Order 11 rule 12 of CPC, whereby requested the
trial Court to called upon the defendants Nos. 4 to 9 to
submit original sale-deed dated 28.06.2007 registered with
the competent authority at serial No. 6052 executed
between defendant No.1 and defendant Nos. 4 to 9 before
the trial court which is subject matter of challenge of the
suit. Such application was allowed by the trial Court vide its
order dated 20.07.2024, thereby, directed the defendants
No. 4 to 9 to produce original copy of the sale-deed if
available in their custody or in alternate submit the affidavit
stating reason of its non-production.
3.3 It appears that defendant Nos. 4 to 9 through their
power of attorney holder submitted an affidavit below Exh.
112 on 02.09.2024 whereby declared that aforesaid
registered sale-deed is not in possession /custody as due to
insufficiency of stamp, the same is not released by the
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Registrar concerned, accordingly it is not available with
them.
3.4 So, in view of the aforesaid facts, at the stage of final
argument, the plaintiff had preferred the impugned
application below Exh. 113 on 02.09.2024 whereby
requested the trial Court to give exhibit to the aforesaid
sale-deed. Such request of plaintiff was objected by
defendants.
3.5 After hearing the parties at length, the trial Court has
rejected the impugned application vide its order dated
17.12.2024 which is questioned by the plaintiff by filing the
present writ application.
Submission of the petitioner- plaintiff
4. Learned advocate Mr. S.P. Majmudar with learned
advocate Mr. Shegun Chokshi for the petitioner would
submit that the trial Court has committed serious error of
law by refusing to exhibit the sale-deed in question which is
undisputed document by the defendants No. 4 to 9. He
would respectfully submit that as per settled legal position
of law, when document in question, though photo copy is
not disputed by the other side, the same is required to be
exhibited irrespective of fact that whether photo copy can
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be proved as a secondary evidence or not.
4.1 Learned advocate Mr. Majmudar would further submit
that defendants No. 4 to 9 in their oral evidence has referred
such sale-deed, later on not allowed to object its exhibit on
the ground that its original copy is not produced by them.
4.2 Learned advocate Mr. Majmudar would further submit
that merely because an application to give exhibit was filed
at the stage of final argument of suit, it could not have been
rejected on the ground of negligence of plaintiff as it is
settled law that rule of procedure is handmaid of justice and
hyper technical view ought to have been avoided by the trial
Court to advance the justice to the parties.
4.3 Learned advocate Mr. Majmudar would further submit
that by exhibiting sale-deed in question, no prejudice would
be caused to defendants No. 4 to 9 as they have already
referred such sale deed in their evidence and as such
document in question sought to be exhibited is undisputed
so far its execution is concerned, except plaintiff has already
challenged such sale-deed in the suit itself.
4.4 To buttress his argument, learned advocate Mr.
Majmudar would refer and rely upon the judgment/order of
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this Court as well as the Hon'ble Apex Court.
(i) Pankajben Rudradattbhai Rawal Vs. Harijan Deva
Natha passed in Special Civil Application No. 6679 of 2023
dated 09.06.2023.
(ii) Nikhil Ashokkumar Shelke and ors. Vs. Subhash
Ramchandra Alias Bhausahem Shelke and ors. Passed in
Special Civil Application No. 11373 of 2023 dated
22.08.2024.
(iii) Sugandhi (Dead) by Lrs. and another Vs. Rajkumar
Rep. By his Power Agent Imam Oli reported in (2020) 10
SCC 706.
4.4 Making the above submission, learned advocate Mr.
Majmudar would request this Court to allow the present writ
application.
Points for determination.
(i) Whether in the facts and circumstances of the case, the
sale-deed in question can be exhibited or not?
(ii) Whether in the facts and circumstances of the case, any
gross error of law or jurisdictional error committed by the
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trial Court while rejecting the impugned application filed
below Exh. 113 by the plaintiff seeking exhibit of photo copy
of sale-deed in question?
ANALYSIS
5. The facts which are enunciated hereinabove are not in
dispute. The plaintiff since inception of the suit challenged
the aforesaid sale-deed executed in favour of defendant
Nos. 4 to 9. For the reason best known to the plaintiff,
before commencement of trial of suit, she never called upon
defendant Nos. 4 to 9 nor other defendant, to produce the
original copy of such sale-deed though specifically
challenged in the suit. The plaintiff has submitted its photo
copy which is only marked all throughout and not given
exhibit which has been clearly observed by the trial Court in
its impugned order that when plaintiff has after completion
of his oral evidence and gave an application to exhibit the
documents, trial court was pleased to order to give exhibit to
all her documents except the aforesaid sale-deed in
question. Nonetheless, plaintiff never had raised any
question about non exhibiting aforesaid sale-deed at
relevant point of time between year 2019 to 2014.
5.1 The reason best known to plaintiff, a production
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application came to be filed after closure of evidence of
defendants, which appears to have been filed under Order
11 rule 12 of CPC. The trial Court did allowed such
application though filed at a very belated stage, thereafter,
defendant Nos. 4 to 9 has submitted an affidavit through
their power of attorney holder contending inter-alia that due
to insufficiency of stamp, the sale-deed in question is
retained by Registrar thereby, not available its original copy
with them for its production before the trial Court.
5.2 Once, such fact came to light and not disputed by the
plaintiff, it would be incumbent upon the plaintiff to get its
certified copy and could have been produced before the trial
Court before completion of evidence, thereby, it could have
been exhibited subject to fulfill other conditions stipulated
in Section 63 read with Section 65 of Evidence Act.
5.3 The plaintiff has not chosen to adopt such recourse
rather filed impugned application with a request to give
exhibit to photo copy of sale-deed in question which was
objected by the defendants.
5.4 Ordinarily, it is true that rule of procedure is handmaid
of justice and hyper technical approach should be avoided by
the trial Court but at the same time rule of procedure can
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not bend to such an extent that every legal requirement
thereby evidence can be brought on record of the civil suit
can go bye, irrespective of admissibility of such evidence
whether receivable or not required to be admitted or not on
the pretext of handmaid of justice. To my mind, such would
not be an intention of maker of rule of procedure when
made a century back. Further, when in a civil trial where strict
rule of Evidence Act would apply, trial court is always
requires to consider provisions of Evidence Act vis-à-vis CPC.
Of course, technicality should not override justice oriented
approach but such an approach can not be and should not be
arbitrary, fanciful and contrary to mandatory provision of
law.
5.5 At this stage, it is apposite to refer and to rely upon
the observation so made by Hon'ble Apex Court in regards to
principle as regards to rule of procedure is handmaid of
justice in the case of Atcom Technologies Ltd. vs Y.A.
Chunawala And Co. reported in (2018) 6 SCC 639, more
particularly in Para-17 (highlighted portion) wherein it is held
as under:-
"17. We fail to persuade ourselves with this kind of reasoning given
by the High Court in condoning the delay, thereby disregarding the
provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908
and the spirit behind it. This reason of the High Court that delay was
condoned 'by balancing the rights and equities' is farfetched and, in the
process, abnormal delay in filing the written statement is condoned
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without addressing the relevant factor, viz. whether the respondents
had furnished proper and satisfactory explanation for such a delay.
The approach of the High Court is clearly erroneous in law and cannot
be countenanced. No doubt, the provisions of Order VIII Rule 1 of the
Code of Civil Procedure, 1908 are procedural in nature and, therefore,
handmaid of justice. However, that would not mean that the defendant
has right to take as much time as he wants in filing the written
statement, without giving convincing and cogent reasons for delay and
the High Court has to condone it mechanically. ........."
(emphasis supplied)
5.6 So far in the present case, where it came to light that
sale deed in question is not released by the Registrar due to
insufficiency of stamp. It would profitable to read and rely
upon Section 34 of the Gujarat Stamp Act, 1958 which reads
as under :-
"34. Instrument not duly stamped in admissible in evidence etc :-
No instrument chargeable with duty [(not being an instrument referred
to in sub-section (1) of section 32A ),] shall be admitted in evidence for
any purpose by any person having by law or consent of parties
authority to receive evidence, or shall be acted upon, registered or
authenticated by any such person or by any public officer unless such
instrument is duly stamped:
Provided that
(a) any such instrument not being an instrument chargeable with a
duty of twenty naye paise and less shall subject to all just exceptions,
be admitted in evidence on payment of the duty with which the same is
chargeable, or in the case of an instrument insufficiently stamped, of
the amount required to make up such duty, [together with a penalty as
per clause (b) of sub-section (1) of section 39 of the Act.]
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(b) where a contract or agreement of any kind is effected by
correspondence consisting of two or more letters and any one of the
letters bears the proper stamp, the contract or agreement shall be
deemed to be duly stamped;
(c) nothing herein contained shall prevent the admission of any
instrument in evidence in any proceeding in a Criminal Court, other
than a proceeding under Chapter XII or Chapter XXXVI of the Code of
Criminal Procedure, 1898 (V of 1898);
(d) nothing herein contained shall prevent the admission of any
instrument in any Court, when such instrument has been executed by
or on behalf of the Government or where it bears the certificate of the
Collector as provided by section 32 or any other provision of this Act."
(emphasis supplied)
5.7 At this stage, it would be profitable to place reliance
upon decision of Hon'ble Apex Court in a case of Vijay V/s
Union of India & Ors. reported in (2023) 17 SCC 455 wherein
after considering similar provision of law held thus:
"[8] To adjudicate this issue, it is pertinent to reproduce Section 35 of
the Stamp Act:
"Section 35 - Instruments not duly stamped inadmissible in evidence,
etc. - No instrument chargeable with duty shall be admitted in evidence
for any purpose by any person having by law or consent of parties
authority to receive evidence, or shall be acted upon, registered or
authenticated by any such person or by any public officer, unless such
instruments are duly stamped: Provided that-
(a) any such instrument (shall] be admitted in evidence on payment
of the duty with which the same is chargeable or, in the case of an
instrument insufficiently stamped, of the amount required to make up
such duty, together with a penalty of five rupees, or, when ten times
the amount of the proper duty or deficient portion thereof exceeds five
rupees, of a sum equal to ten times such duty or portion;
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xxxx"
[9] It is evident from a bare perusal of the section that it prohibits
admission in evidence of instruments that are chargeable with duty
unless they are "duly stamped." Duly stamped as defined under
Section 2(11) of the Stamp Act means that the instrument bears a
stamp and that such stamp has been affixed or used in accordance
with law for the time being in force in India.
[28] The object of the Stamp Act is to collect proper stamp duty on an
instrument or conveyance on which such stamp duty is payable.
Section 35 is a provision to cater for the instruments not being properly
stamped and, as such, not being admissible in evidence. A document
not duly stamped cannot be admitted for any purposes. To impose the
bar of admissibility provided under this section, the following twin
conditions are required to be fulfilled:
(i) Instrument must be chargeable with duty;
(ii) It is not duly stamped."
(emphasis supplied)
5.8 Thus, from bare reading of said mandatory provision of
law applicable so far State of Gujarat and considering ratio of
decision in a case of Vijay (supra), it is clear like a day that
when instrument is not duly stamp can not be received in
evidence and can not be even admitted as an evidence for
any purpose by any person irrespective of any consent of the
parties authority to receive evidence.
5.9 When it has been brought and declared before the trial
Court that sale deed in question is not released by the
Registrar due to insufficiency of stamp, such document by no
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stretch of imagination can be received and or admitted in
evidence, especially when the plaintiff has challenged such
sale-deed having made prayer to that effect in the suit.
6. The judgments which are cited and relied by the
learned advocate Mr. Majmudar for the petitioner would not
be applicable to the facts of the present case as in the light
of the aforesaid peculiar facts and circumstances and as per
mandatory provisions of Section 34 of the Gujarat Stamp Act,
the document which is sought to be exhibited i.e. sale-deed
in question can not be received/admitted in evidence.
7. Nonetheless, I would like to deal with the ratio of such
judgments passed by the Co-ordinate Bench of this Court
delivered on the basis of its in-peculiar facts of the case.
7.1 In a case Nikhil Ashokkumar Shelke (supra) the plaintiff
came forward to give his consent to admit documents
submitted by the defendants and in that facts situation the
co-ordinate Bench has observed as under :
"When plaintiff is at liberty to admit the document of
defendant and if he does so, whether it is primary or secondary
document, it shall be oblivious. It is document of defendant
and plaintiff is relying and admitting such document on his
own wisdom and therefore, it can be exhibited even at the
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stage of argument. This issue is based on common thread of
sense without referring provisions of Evidence Act........."
So, the Co-ordinate Bench of this Court has not taken
into account the provisions of Evidence Act while order
exhibiting the document in question of that case as plaintiff
has given consent to exhibit document submitted by
defendant. Whereas, in the present case, the document is
submitted by the plaintiff i.e. photo copy of the sale deed
executed in favour of defendants No. 4 to 9 by defendant
No.1 and as such defendant Nos. 4 to 9 though referred such
sale deed in their evidence albeit, object its exhibit.
Furthermore, provisions of Evidence Act was not considered
while passing said order. Thus, considering peculiar facts and
circumstances of that case, order was passed to exhibit the
document.
7.2. In the case of Pankajben (supra) again the Co-ordinate
Bench of this Court has ordered exhibit of document
submitted by the defendants produced alongwith his written
statement and request were made by the plaintiff to give
exhibit to such document of defendant, meaning thereby,
the defendant can not object the document which is
submitted by himself. The Co-ordinate Bench of this Court
after referring the provisions of Section 63 and 65 of the
Evidence Act, ultimately permitted the plaintiff to produce
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true copy of the sale-deed produced at mark-17/1 in that
case. So, the plaintiff of that case was permitted to produce
true copy of such document which was marked as 17/1,
whereas the plaintiff in the present case, did not chose to
submit true copy of the sale deed in question and as such in
the impugned order itself the trial Court has categorically
observed that plaintiffs neither submitted certified copy
(true copy) of the sale-deed nor any application filed for
proving such document by requesting to issue witness
summon for the purpose of proving the document i.e. sale
deed in question, more particularly when the plaintiff came
to know in the year 2019 that such sale deed was not
ordered to be exhibited.
7.3 So, in both these aforesaid decisions passed by co-
ordinate bench of this Court, question of insufficiency of
stamp and whether such document/sale deed can be
admitted/received in evidence irrespective of S. 34 of
Gujarat Stamp Act was not arose then not dealt with in such
decisions. Thus, both these decisions have no help to
petitioner.
7.4 Lastly, the judgment of the Hon'ble Court in the case of
Sugandhi (supra), there is no cavil that procedure is
handmaid of justice and if procedural violation does not
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seriously cause prejudice to the adversary party, courts must
lean towards doing substantial justice rather than relying
upon procedural and technical violation. At the same time,
the Hon'ble Apex Court in the case of Atcom Technologies
Ltd (supra) has observed that court should not mechanically
applied such principle i.e. rule of procedure is handmaid of
justice. So, when mandatory provision, Section 34 of the
Gujarat Stamp Act prohibit to admit document not duly
stamp being inadmissible in the evidence, the sale-deed in
question having found insufficiently stamp which is not
disputed by the plaintiff can not be received in evidence,
thereby question of giving exhibit to such document would
not arise at all.
8. Thus, in view of the aforesaid peculiar facts and
circumstances of the present case as well as mandatory
provision of Stamp Act and so also decision of Hon'ble Apex
Court referred herein above, the sale-deed in question can
not be exhibited.
9. It is also now well settled legal position of law that
unless there is gross error of law and or jurisdictional error
committed by the trial Court while exercising its power
under Article 227 of the Constitution of India, this Court can
not lightly interfered with such order passed by the trial
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Court. It would be profitable to refer and rely upon the ratio
laid down by the Hon'ble Apex Court in the case of (i)
Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar
Agarwal, reported in 2013 (9) SCC 374 (Para 6 and 7) and
(ii) Garment Craft v. Prakash Chand Goel, reported in
(2022) 4 SCC 181 (Para 15 and 16).
Conclusion.
13. In the light of the aforesaid observation, discussion and
reasons, I am of the view that neither any gross error of law
nor any jurisdictional error committed by the trial Court
while rejecting the impugned application and in the
aforesaid peculiar facts and circumstances of the case and
the provisions of law discussed hereinabove, the sale-deed in
question can not be admitted in evidence thereby can not be
exhibited.
14. Thus, the present writ application lacks merit and
requires to be rejected, which is hereby rejected. No order as
to costs.
Sd/
(MAULIK J.SHELAT,J)
SALIM/
