Gujarat High Court
M/S. Gautam Sarabhai vs Navinbhai Raichandbhai Thakker on 9 October, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12024 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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M/S. GAUTAM SARABHAI
Versus
NAVINBHAI RAICHANDBHAI THAKKER & ANR.
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Appearance:
MR. DIPAK R. DAVE(1232) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 09/10/2025
ORAL JUDGMENT
1. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following order:
"(A) This Hon'ble Court may be pleased to issue an appropriate writ, order or
direction to quash and set aside the impugned Judgment and Decree dated
15.04.2025 passed by The Learned Small Causes Court, Ahmedabad in New
Trial Application no. 17 of 2023 as well as Judgment and Decree dated
25.04.2023 passed by The Learned Small Causes Court no.2, Ahmedabad in
Regular Civil Suit no. 268 of 2022, at Annexure-A & B respectively to the
petition;
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(B) Pending the admission hearing and final disposal of this petition, this
Hon'ble Court may be pleased to stay the execution, implementation and
operation of the impugned Judgment and Decree dated 15.04.2025 passed by
The Learned Small Causes Court, Ahmedabad in New Trial Application no. 17
of 2023 as well as Judgment and Decree dated 25.04.2023 passed by The
Learned Small Causes Court no.2, Ahmedabad in Regular Civil Suit no. 268 of
2022, at Annexure-A respectively to the petition;
(C) Any other and further relief or reliefs to which this Hon'ble Court interest of
deemed fit, in the justice; may kindly be granted."
2. The petitioner herein is original plaintiff, whereas, the
respondents herein are original defendants of Summary Suit
No.268 of 2022.
3. At the outset, it is required to be noted that petitioner having
filed summary suit before Small Cause Court against
respondent, which was dismissed by Small Causes Court,
Ahmedabad. Thereafter, the petitioner preferred New Trial
Application under Section-38 of the Presidency Small Cause
Act, 1882 (hereinafter referred to as "the Act, 1882"), which
also dismissed by Appellate Bench of Small Cause Court,
Ahmedabad. So, against concurrent finding of fact recorded by
the courts below against petitioner, the present application is
filed under Article 227 of the Constitution of India by the
petitioner.
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4. Ordinarily, when any recovery suit, be it summary suit or
regular civil suit, filed before Civil Court, the decree passed in
such suit would be appealable before the Appellate Court.
Nonetheless, in the case on hand, summary suit came to be
filed before the Small Causes Court, Ahmedabad, wherein any
decree passed, against which, there is no appeal remedy
provided under the Act 1882, except to file an application
under Section 38 of the Act 1882, which reads as follows:
"38. New trial of contested cases :-
Where a suit has been contested, the Small Cause Court
may, on the application of either party, made within
eight days from the date of the decree or order in the
suit (not being a decree passed under section 522 of the
Code of Civil Procedure) order a new trial to be held, or
alter, set aside or reverse the decree or order, upon
such terms as it thinks reasonable, and may, in the
meantime, stay the proceedings.
Explanation. - Every suit shall be deemed to be
contested in which the decree is made otherwise than
by consent of or in default of appearance by the
defendant."
5. The bare reading of Section 38 of the Act 1882 would suggest
that new trial may be held, or the decree impugned would or
can be altered, set aside or reversed, upon such terms as court
thinks reasonable. Such would be the position, a New Trial
Application filed under Section 38 of the Act 1882, cannot be
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equated with a regular civil appeal filed before the appellate
court concerned against any decree passed by civil court.
6. Nevertheless, the Appellate Bench of the Small Causes Court,
while adjudicating such New Trial Application filed by the
petitioner herein, appears to have treated it as if it was a
regular appeal. So, it framed the points/issues germane in the
matter, then after, it passed a detailed judgment and so also
drawn the decree.
7. With this set of judgments and the decree passed by the Small
Causes Court, as well as the Appellate Bench of the Small
Causes Court, Ahmedabad City, is now questioned by the
original plaintiff-petitioner herein by way of this writ
application.
8. SUBMISSIONS OF PETITIONER-PLAINTIFF:
8.1. Learned Counsel Mr. Deepak R. Dave would vehemently
submit that the amount of Rs.7,92,079.35/ could not have been
debited from the account of the plaintiff by defendant No.1 in
pursuance of the shares transaction of "Shree Rang Fincap", as
it would be an illegal transaction having being so held by the
Ahmedabad Stock Exchange.
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8.2. Learned Advocate Mr. Dave would further submit that the
Trial Court as well as the Appellate Court both have
committed serious error in law by not appreciating that the
onus to prove such act of recovery of defendant No.1 in
regards to aforesaid amount in pursuance to any alleged loss
caused to him would be upon defendant No.1 and not upon the
petitioner/plaintiff. It is submitted that as per the case of
defendant No.1, due to illegal share transactions carried out by
the plaintiff, he suffered loss of the aforesaid amount, thereby
entitled him to recover it from the plaintiff, being his sub-
broker, then in such situation, the burden is upon defendant
No.1 to prove such loss.
8.3. Learned Advocate Mr. Dave would further submit that
defendant No.1 required to prove such loss caused to him due
to so called illegal transaction by plaintiff, having not
submitted any piece of evidence to substantiate such loss,
plaintiff entitled to receive the claim amount from defendant
No.1. It is submitted that during cross-examination, defendant
No.1 was unable to produce any documentary evidence,
including diary which was maintained by him, wherein details
of the transaction written down by him.
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8.4. Learned Advocate Mr. Dave would humbly submit that
considering the peculiar facts and circumstances of the case,
when defendant No.1 has illegally deducted the amount from
the account of the plaintiff and thereby recovered the aforesaid
amount, the plaintiff is entitled to get back such amount from
defendant No.1.
8.5. Making the above submissions, learned Advocate Mr. Dave
requests this Court to allow the present writ application.
9. No other and further submissions are made by learned
advocate for the petitioner.
10. Heard learned Advocate Mr. Dave at length.
11. I have also gone through the impugned judgment passed by the
Trial Court as well as the Appellate Court, whereby both courts
below have concurrently held against the plaintiff, whereby
they observed that the plaintiff miserably failed to prove his
claim made in the suit.
12. This court having limited jurisdiction under Article 227 of the
Constitution of India, cannot re-appreciate the evidence on
record. Furthermore, unless and until, it has been pointed out
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and shown to this court that there is gross illegality,
irregularity, or jurisdictional error committed by the court
below and/or there is any perversity in the findings so recorded
by the courts below while passing the judgment/decree, this
court should not interfere with the judgment/order passed by
the court at the drop of a hat. [See - (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)].
13. None of the arguments so canvassed by learned Advocate Mr.
Dave appeal to this court, inasmuch as, it has no legal basis to
stand. It remains undisputed on record that illegal transaction
in relation to the purchase of shares of 'Shree Rang Fincap'
was carried out by the plaintiff without any instruction received
from defendant No.1 being main broker. It also remain
undisputed that such transaction was not authorized in law.
Further, due to such transaction, according to the defendant
No.1, he suffered a loss of Rs.7,92,079/- and accordingly, he
debited such amount from the account of the plaintiff being
sub-broker. It has been observed by the Trial Court in its
impugned judgment, more particularly in Paragraph 46, that
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the plaintiff has deposed contrary to the claim. Further, it has
been observed by the Trial Court and it can be seen from the
cross-examination of the plaintiff below Exhibit 173, wherein
he admitted that his brother was doing the transaction, who
undisputedly not examined by the plaintiff. It further appears
that the petitioner-plaintiff having no personal knowledge
about the transaction made by his brother.
14. Be that as it may, the fact remains that such illegal transaction
done at the instance of the plaintiff or his brother and there is
no role of defendant No.1. In such situation, if defendant No.1
being the main broker suffered a loss due to an illegal act of
plaintiff being sub-broker acted under him, then in such
situation, there is nothing wrong that he debited the said
amount from the account of the plaintiff. It is also doubtful as
to whether plaintiff can maintain the suit to recover the
amount for its own illegal act from defendant No.1, who never
instructed plaintiff to undertake such transaction.
15. It is settled legal position of law that a heavy burden would be
upon the shoulders of the plaintiff to prove his claim made in
the suit. The Trial Court has correctly appreciated such an
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aspect of the matter by referring Sections 101, 102, and 106 of
the Evidence Act. It is not correct to say, as contended by
learned Advocate Mr. Dave that the Trial Court has failed to
appreciate the aspect of onus of proof while adjudicating the
claim of the plaintiff. This in fact, proved wrong by referring to
the following passages of the judgment rendered by the Trial
Court in the matter, which reads as under:
"42 Thus, The most important issue in this
case is that, upon whom the Burden of proof
lies to prove the facts that, "The defendant
no.1 has, the amount of Rs.7,92,079=35 p.s.
about transaction of shares of Shree Rang
fincap, wrongly debited in account the of the
plaintiff." which deals with the aspect of
burden of proof. In the present case, in my
opinion, the relevant Sections would be
Sections-101, 102 and 106 of The Evidence Act.
Section-101 of The Evidence Act deals with the
burden of proof upon a party who asserts before
the Court about his case. It lies with a person
who asserts a particular fact which exists.
Section-102 of The Evidence Act makes it clear
that if no evidence is given by either side,
the person who asserts, would fail. Section-106
of The Indian Evidence Act deals with the
burden of proving a particular fact lies on
that person if that particular fact is within
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his knowledge. It is true that it is the duty
of the plaintiff to establish his case with
regard to the assertions he has made in the
plaint. While dealing with Sections-101 and 102
of The Evidence Act, the Apex Court in the case
of Anil Rishi V/s.Gurbaksh Singh, as reported
in AIR 2006 SC 1971 has held in para -19 as
under:
"19. There is another aspect of the matter which should be
borne in mind. A distinction exists between a burden of proof
and onus of proof. The right to begin follows onus probandi. It
assumes importance in the early stage of a case. The question
of onus of proof has greater force, where the question is which
party is to begin. Burden of proof is under in three ways: (I) to
indicate the duty of bringing forward evidence in support of a
proposition at the beginning or later; (ii) to make that of
establishing a proposition as against all counter evidence; and
(iii) an indiscriminate use in which it may mean either or both
of the others. The elementary rule is Section 101 is inflexible.
In terms of Section 102, the initial onus is always on the
plaintiff and if he discharges that onus and makes out a case
which entitles him to a relief, the onus shifts to the defendant to
prove those circumstances, if any, which would dis-entitle the
plaintiff to the same."
43 The aforesaid ratio laid down by the
Hon'ble Apex Court is the elementary rule that
Section-101 of the Evidence Act is inflexible
and the initial onus is always on the plaintiff.
However, conjoint reading of Sections-101 and
102 of the Evidence Act, it is amply clear
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that, if, the plaintiff discharges that onus and
makes out a case which entitles him to a
relief, the onus shifts to the defendant to
prove those circumstances, if any, which would
dis-entitle the plaintiff to the same.
44 In the case of A. Raghavamma and Anr. A.
Chenchamma and Anr., as reported at AIR 1964 SC
136, the Hon'ble Apex Court while dealing with
the provisions of Section-101 of The Evidence
Act, in para-12 has held as under:
"12. .................. There is an essential distinction between
burden of proof and onus of proof: burden of proof lies upon
the person who has to prove a fact and it never shifts, but the
onus of proof shifts. The burden of proof in the present case
undoubtedly lies upon the plaintiff to establish the factum of
adoption and that of partition. The said circumstances do not
alter the incidence of the burden of proof. Such considerations,
having regard to the circumstances of a particular case, may
shift the onus of proof. Such a shifting of onus is a continuous
process in the evaluation of evidence. ..........."
45 In view of the pronouncements of the
Hon'ble Apex Court with regard to Sections-101
and 102 of The Evidence Act, it is abundantly
clear that the burden of proof lies on the
shoulder of the plaintiff to prove the facts
that, "Whether the plaintiff proves that the
defendant no.1 has, the amount of
Rs.7,92,079=35 p.s. about transaction of shares
of Shree Rang Fincap, wrongly debited in
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account of the plaintiff and further the
plaintiff is entitled to get the amount of
Rs.2,45,202=15 p.s for difference of bills ?"
(emphasis supplied)
16. Having so observed hereinabove, I am of the view that there is
no illegality committed by the Trial Court in appreciating
evidence and so also answering the issues framed by it. As such,
the initial burden to prove the claim would always be upon the
plaintiff and merely because, it is asserted by the plaintiff in his
plaint that the amount is illegally debited by defendant No.1
would not ipso facto entitled him to claim that the onus to
prove such so-called illegal debit have to be discharged by
defendant No.1.
17. This court would not have further burdened this judgment but,
to deal with submission of petitioner, reproduced the issues
which are framed by the Trial Court during the course of the
trial, which reads as under:
"7. From the pleadings of the parties, following
issues are framed at Exh.168 :
1 Whether the plaintiff proves the suit claim ?
2 Whether the plaintiff is entitled for the relief as
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prayed for in Exh.1 ?
3 Whether the plaintiff is entitled for the interest as
claimed ?
4 What order and decree ?
8. My findings to the above issues are as under :
1 In the negative.
2 In the negative.
3 In the negative.
4 As per the order."
(emphasis supplied)
18. So, in view of the aforesaid issues framed by the Trial Court,
the plaintiff was well aware that burden was upon plaintiff to
prove the suit claim, which it failed to discharge. Now, plaintiff
cannot cry foul that courts below have incorrectly put burden
upon its shoulder to prove his claim made in the suit.
19. So far as the last limb of argument of learned Advocate Mr.
Dave that defendant No.1 has not produced the diary so
maintained by him in regards to the transaction made in
relation to the transaction in question is concerned, it does not
appear from the record that at given point of time, the plaintiff
called upon defendant No.1 to produce any such document
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before the trial commenced, which otherwise could have been
done by the plaintiff as per the provisions of Order 13 of the
CPC. The cross-examination of the plaintiff (see-page 28 of the
cross-examination) would suggest that the plaintiff never
demanded such diary from defendant No.1.
20. In fact, while reappreciating evidence on record, which
otherwise, not required to be done by Appellate bench of Small
Causes Court while hearing New Trial Application, still it has
undertaken such painstaking exercised. Nonetheless, bench was
unable to agree with any of submissions so canvassed by
petitioner herein, thus dismissed such New Trial Application.
As such, I am also in complete agreement with view taken by
Small Causes Court and its Appellate bench, whereby it
dismissed the suit as well as application.
21. In light of the aforesaid peculiar facts and circumstances of the
case and when both the courts concurrently held that the
plaintiff failed to prove his claim, even on appreciation of the
submissions so canvassed by learned Advocate Mr. Dave, and
revisiting the impugned judgments as well as oral evidence of
the parties, I am unable to accept any of the submissions of
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learned Advocate Mr. Dave for petitioner.
22. Thus, the upshot of the aforesaid observations, discussions and
reasons, I am of the view that the present writ application
bereft of any merit, inasmuch as there is neither any illegality
nor any irregularity or perversity found in the impugned
judgment and decree passed by the courts below.
23. Consequently, the present writ application is hereby rejected,
albeit with no costs.
(MAULIK J.SHELAT,J)
NILESH
