Gujarat High Court
M/S Gujarat State Financial Services ... vs M/S Hytaisun Magnetics Ltd on 8 September, 2025
NEUTRAL CITATION
C/SCA/16430/2024 ORDER DATED: 08/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16430 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 16694 of 2024
==========================================================
M/S GUJARAT STATE FINANCIAL SERVICES LTD.
Versus
M/S HYTAISUN MAGNETICS LTD.
==========================================================
Appearance:
MR NV GANDHI(1693) for the Petitioner(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 08/09/2025
COMMON ORAL ORDER
1. Learned Advocate Mr. N. V. Gandhi for the petitioner.
Though served, none appears for the respondent.
2. The issue germane in both these writ applications having
filed under Article 227 of the Constitution of India is
common, thereby, taken up for hearing together and decided
by way of this common judgment/order.
3. The parties will be referred as per their original position in
the suit.
4. To understand the facts and the issue germane, the short
facts of Special Civil Application No. 16430/2024 are
considered, as under:
NEUTRAL CITATION
C/SCA/16430/2024 ORDER DATED: 08/09/2025
undefined
4.1. The petitioner herein is the original plaintiff, who filed
Summary Suit No. 3885 of 1998 against the respondent. It is
undisputed fact that the plaintiff is a State Government-
owned company, filed the suit through its authorized officer.
4.2. When the suit ripe for evidence, at that point of time, when
oral evidence in the form of examination-in-chief was filed
before the Trial Court, impugned application was also filed
below Exhibit 35 by the plaintiff, whereby, requested the
Trial Court to treat documentary evidence produced at Mark
3/5 to 3/42 as secondary evidence.
4.3. According to the case of the plaintiff, aforesaid documents
whose photocopies are produced at Mark 3/5 to 3/42 were
misplaced in the office of plaintiff, but the officer who
instituted/filed the suit and so also filed an oral
evidence/affidavit of examination-in-chief seen its original.
Thus, requested to treat those documents as Secondary
Evidence.
4.4. The defendant has objected the impugned application, having
filed its reply, wherein, principle contention raised that the
impugned application is not maintainable, having been filed
after submitting oral evidence. It is further objected that
without seeking leave of the Court, the plaintiff could not
have referred all these documents sought to be treated as
NEUTRAL CITATION
C/SCA/16430/2024 ORDER DATED: 08/09/2025
undefined
secondary evidence in its oral evidence. The plaintiff, having
failed to show any due diligence of its search of documents in
question, the impugned application bereft of any material
particulars requires to be rejected.
4.5. After hearing the parties, the Trial Court vide its order dated
16th October 2024, rejected the application. Similar is the
case in second matter. Hence, the present writ applications.
5. Learned Advocate Mr. Gandhi would submit that the Trial
Court has committed a grave error of law, inasmuch as
jurisdictional error, having not granted the impugned
application. It is submitted that the documents which are
sought to be treated as secondary evidence were misplaced
in the office of the plaintiff, which is a Government company.
It is further submitted that there is no malafide on the part of
the plaintiff not to present original documentary evidence,
but the reasons set out in the application, it was not available
for its production, thus, not able to submit it.
6. Learned Advocate Mr. Gandhi would further submit that the
case of the plaintiff would squarely fall under sub-section (c)
& (e) of Section-65 of the Evidence Act, 1872 (hereinafter
referred to as "Act 1872"), whereby, having declared before
the Trial Court that the original documents are misplaced, it
ought to have been treated as secondary evidence.
NEUTRAL CITATION
C/SCA/16430/2024 ORDER DATED: 08/09/2025
undefined
7. Learned Advocate Mr. Gandhi would further submit that the
Trial Court has taken very hyper-technical approach while
deciding the impugned application, which resulted into
miscarriage of justice. It is submitted that despite drawing
attention of several authorities of the Hon'ble Apex Court and
so also the fact that the plaintiff is a Government company,
which is run through several officers/staffs, unable to
produce original documents on record and in that situation,
the Trial Court requires to accept the explanation put
forward by the plaintiff in the interest of justice.
8. Learned Mr. Gandhi would further submit that the plaintiff
being a State Government-owned company, would fall under
the Right to Information Act, 2005 (hereinafter referred to as
"Act 2005") and if such documents sought for are called upon
to be produced or to be received by any party, the plaintiff
would under solemn obligation, as per the provisions of the
Act 2005, requires to deliver such documents, then, the same
would have been otherwise admissible in evidence as per
law. It is respectfully submitted that no harm/prejudice would
cause to the defendant if the documents sought for to be
treated as secondary evidence, inasmuch as the plaintiff
would be subjected to cross-examination by the defendant.
9. Making the above submissions, learned Advocate Mr. Gandhi
NEUTRAL CITATION
C/SCA/16430/2024 ORDER DATED: 08/09/2025
undefined
would request this Court to allow the present writ
applications.
10. The facts which are narrated hereinabove are not in dispute.
The summary suit came to be filed by the plaintiff happens to
be Government-owned company, which would fall under the
Act 2005. The documents which are sought to be produced
on record are photocopies of its originals, lost by the plaintiff
as stated in the impugned application. It is not the case of the
defendant having not objected the contents of the impugned
application, but its objection in regards to the timing of
submitting the impugned application i.e. filed after filing oral
evidence, albeit no cross-examination yet not commence of
witness of plaintiff.
11. It is required to be noted that in the impugned application, it
is the specific case of the plaintiff that the documents sought
to be treated as secondary evidence were lost and not
available with it. Nonetheless, it has been so specifically
stated in the impugned application that one Vasant Kodarlal
Patel, who was officer of the plaintiff-Company, saw the
original documents before filing suit, and now, sought to be
treated as secondary evidence, because of the fact that its
photocopies are available on record. The plaintiff having lost
the documents produced at Mark 3/5 to 3/42 and in that view
NEUTRAL CITATION
C/SCA/16430/2024 ORDER DATED: 08/09/2025
undefined
of the matter, requested the Trial Court to treat it as
secondary evidence. The aforesaid fact appears to be
remained uncontroverted at the end of defendant.
12. It is true that as per the settled law, document must be
proved by primary evidence unless a contingency so arises
and established on record as provided under Section-65 of
Act 1872 whereby, secondary evidence can be given. The
bare reading of Section-65 (c) & (e) of the Act, 1872, upon
which reliance placed by learned Advocate Mr. Gandhi, reads
as under:
"65. Cases in which secondary evidence relating
to documents may be given :-
-Secondary evidence may be given of the
existence, condition, or contents of a document
in the following cases;
(a) ......
(b) ......
(c) when the original has been destroyed or
lost, or when the party offering evidence of its
contents, for any other reason not arising from
his own default or neglect, produce it in
reasonable time.
(e) when the original is public document within
the meaning of Section 74;
74. Public documents.--
The following documents are public documents:
--
NEUTRAL CITATION
C/SCA/16430/2024 ORDER DATED: 08/09/2025
undefined
(1) Documents forming the acts, or records of
the acts --
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial
and executive, 3 [of any part of India or of
the Commonwealth], or of a foreign country;
(2) Public records kept 4 [in any State] of
private documents.
76. Certified copies of public documents.--
Every public officer having the custody of a
public document, which any person has a right
to inspect, shall give that person on demand a
copy of it on payment of the legal fees there
for, together with a certificate written at the
foot of such copy that it is a true copy of
such document or part thereof, as the case may
be, and such certificate shall be dated and
subscribed by such officer with his name and his
official title, and shall be sealed, whenever
such officer is authorized by law to make use of
a seal; and such copies so certified shall be
called certified copies.
Explanation.--Any officer who, by the ordinary
course of official duty, is authorized to deliver
such copies, shall be deemed to have the
custody of such documents within the meaning of
this section.
77. Proof of documents by production of
certified copies.--
Such certified copies may be produced in proof
of the contents of the public documents or
parts of the public documents of which they
purport to be copies."
NEUTRAL CITATION
C/SCA/16430/2024 ORDER DATED: 08/09/2025
undefined
13. The harmonious reading of aforesaid provisions of Act, 1882
read with Act, 2005 would lead to one conclusion that
documents sought to be treated as secondary evidence can
easily be considered as secondary evidence.
14. As such, in a case where there is an original document lost by
the party and the reasons so assigned are not creating any
doubt in the mind of the Court, inasmuch as there is no
malafide intention and/or any other intention, whereby, it
cannot be gainsaid that the party deliberately withheld the
original document. In such type of cases, according to my
view, such documents can be allowed to be treated as
secondary evidence.
15. Further, it is also not out of place to mention here that the
plaintiff is a Government-owned company, having so
observed that its subjected to the provisions of the Act 2005,
and in that view of the matter also, any document sought
from such Government-owned company under the RTI Act
would be considered as a public document and can be
admitted/received in evidence as per the provisions of the Act
1872. [See : Section-74, 76 & 77 read with Section-65(e) of
Act 1872].
16. In view of foregoing reasons, this Court is of the view that
impugned orders suffer from jurisdictional error and
NEUTRAL CITATION
C/SCA/16430/2024 ORDER DATED: 08/09/2025
undefined
approach of the Trial Court is just opposite to what is settled
legal position of law thus, requires to be interfered by this
Court while exercising its supervisory jurisdiction under
Article 227 of the Constitution of India. It needs to interfere
with impugned order as its by now well settled that in a case
of jurisdictional error committed by Trial Court and so also to
keep the Court within its bound, such power vested with this
Court requires to be exercised for ends of justice. [See -
Waryam Singhvs vs. Amarnath,, reported in AIR 1954 SC
215 (para-13) & Bhudev Mallick alias Bhudeb Mallick and
Another vs. Ghoshal and Others, reported in 2025 SCC
OnLine SC 360 (para 53 to 58)]
17. The upshot of the aforesaid observations, discussions, and
reasons, leads to only one conclusion that the impugned
order dated 16th October 2024, passed by Special Civil Court
No. 19, City Civil Court, Ahmedabad City, below Exhibit 35 in
Civil Suit No. 3885 of 1998, requires to be quashed and set
aside which is hereby quashed and set aside. Accordingly, the
impugned application so filed below Exhibit 35 in the
aforesaid suit is hereby allowed. The documents which are
produced at Mark 3/5 to 3/42 by the plaintiff in the aforesaid
suit will be treated as secondary evidence as prayed in the
application.
NEUTRAL CITATION
C/SCA/16430/2024 ORDER DATED: 08/09/2025
undefined
18. Likewise, the impugned order dated 15th October 2024,
passed by this Special Civil Court No. 19, City Civil Court,
Ahmedabad City, below Exhibit 31 in Civil Suit No. 3883 of
1998, is also hereby quashed and set aside. Accordingly, the
impugned application filed below Exhibit 31 in the aforesaid
suit is hereby allowed. The documents which are sought to be
produced at Mark 3/1 to 3/32 by the plaintiff in the aforesaid
suit will be treated as secondary evidence as prayed in the
application.
19. The trial Court shall now proceed with the suit in accordance
with law and decide lis between the parties without being
influenced by any of the aforesaid observations so made by
this Court.
20. In view of forgoing conclusion, both these writ applications
are hereby partly allowed to the aforesaid extent. No order as
to costs.
21. Direct service is permitted.
(MAULIK J.SHELAT,J)
Nilesh
