Gujarat High Court
Nasir Ismail Indragadia vs Jiyauddin Umarmiya Indragadia on 13 February, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/4225/2018 ORDER DATED: 13/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4225 of 2018
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NASIR ISMAIL INDRAGADIA & 3 other(s)
Versus
JIYAUDDIN UMARMIYA INDRAGADIA & 21 other(s)
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Appearance:
HARSH V GAJJAR(7828) for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No. 3
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,19,2,20,21,22,3.1,3.2,3.3,4,5,6,7,8,9
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 13/02/2023
ORAL ORDER
1. By way of the present petition, the petitioners herein have aggrieved by the impugned order dated 20.12.2017 passed below Exh.104 as well as impugned order dated 31.01.2018 passed below Exh.110 in the proceedings of the Special Civil Suit No. 24 of 2017.
2. The brief facts leading to the filing of the present petition for the adjudication of the dispute in question read thus:
2.1. The Special Civil Suit No. 27 of 2012 (subsequently Page 1 of 14 Downloaded on : Sun Sep 17 21:50:09 IST 2023 NEUTRAL CITATION C/SCA/4225/2018 ORDER DATED: 13/02/2023 undefined re-numbered as Special Civil Suit No. 24 of 2017, again renumbered as Special Civil Suit No. 45 of 2018 pending before the Principal Senior Civil Judge and Addl C.J.M., Taluka Court, Umargam, Dist.: Vapi) came to be preferred by the respondent no.1 - original plaintiff against the petitioners (original defendant nos. 5, 6, 7 and 9) and other co-defendants seeking the relief of declaration and challenge to the registered sale deeds, possession of the suit land and consequential relief of perpetual injunction.
2.2. It is the case of the original plaintiff that the suit lands being Survey No. 129/3, 131/2, 132/1, 135/12 and 212/6 situated at Mouje: Sanjan, Tal.: Umargam, Dist.: Valsad were belonging to the sole ownership of the great grandfather of the respondent - original plaintiff i.e. one Musaji Fakirmiya, who had passed away intestate, and therefore, it is claimed by the plaintiff that the plaintiff alongwith original defendant nos. 11 to 19 and 20 to 24 are the legal heirs of the said Musaji and are the true owners of the suit land. It is the further the case of the plaintiff that in January, 2012, the plaintiff came to know about the execution of the registered sale deed No. 9642 dated 05.11.2008 by defendant nos. 1 to 4 in favour of the defendant no.5 for Survey No. 129/3, albeit the fact remains that defendant nos. 1 to 4 are not the heirs and successors of deceased Musaji.
It is the further the case of the original plaintiff - respondent No.1 herein that, the plaintiff - respondent no.1 herein having came to know regarding the execution of registered sale deed No. Page 2 of 14 Downloaded on : Sun Sep 17 21:50:09 IST 2023 NEUTRAL CITATION C/SCA/4225/2018 ORDER DATED: 13/02/2023 undefined 1022 dated 03.06.2011 by defendant no.5 in favour of defendant no.6 for total sale consideration of Rs.4,91,000/-. It is averred in the plaint that, as defendant nos. 1 to 4 are not the successors and heirs of deceased Musaji, the registered sale deeds are fraudulent and bad in law.
2.3. It is the case of the plaintiff that, the plaintiff has in fact admitted the factum of partition in the plaint, whereby, the plaintiff has stated that the partition deed that had been executed between the defendant nos. 1 to 5, 7, 9 and 25 and 26 in respect of Survey Nos. 129/3, 131/2 and 135/12, however, it is the case of the plaintiff that the plaintiff was not a party to such partition deed. Accordingly, the plaintiff has prayed for in the suit to set aside the two registered sale deeds dated 05.11.2008 and 03.06.2011 respectively, seeking a declaration that the defendant nos. 5 and 6 have no right by virtue of being purchasers in the said sale transactions, for direction against the defendant no. 6 to provide for the peaceful possession of Survey No. 129/3, and for a declaration that the plaintiff alongwith defendant nos. 11 to 24 are the real owners of the suit lands and further relief seeking perpetual injunction. Copy of the plaint being Special Civil Suit No. 24 of 2017 is duly produced at Annexure-C. 2.4. The defendant nos. 11 to 16 and 18 to 22 filed their written statement in the aforesaid Special Civil Suit No. 24 of 2017 on 18.07.2012 vide Exh.18 in support of the case of the Page 3 of 14 Downloaded on : Sun Sep 17 21:50:09 IST 2023 NEUTRAL CITATION C/SCA/4225/2018 ORDER DATED: 13/02/2023 undefined respondent no.1 herein - original plaintiff.
2.5. The petitioners herein being original defendant nos. 5, 6, 7 and 9 filed their written statement vide Exh.22 dated 17.10.2012 opposing the case of the plaintiff. The same is duly produced at Annexure-E. 2.6. The facts germane for adjudication of the present dispute, wherein, the application below Exh.104 and 110 came to be rejected are that petitioner herein filed documents below Exh.103 providing for list of 114 documents, which are germane for adjudication of the dispute in question on 13.09.2017. It is the case of the petitioner that the said documents are the certified copies of the public documents, which have been procured from the government records and judicial records, and therefore, the same are admissible in the eyes of law. It is also stated that the documents duly produced vide Exh.103 are in the form of revenue tax receipts, 7/12 village forms, mutation entries, pedhinama, death certificate of great grandfather of the plaintiff and orders passed by various revenue and judicial authorities. It is stated that the said production came to be objected by the original plaintiff on the ground that the respondent no.1 - original plaintiff had no personal knowledge qua such documents, and therefore, the plaintiff cannot / could not provide any comment to it. Pursuant thereto, the petitioner filed an application below Exh.104 praying to provide exhibits to the said 114 documents produced below Exh.103. The said Page 4 of 14 Downloaded on : Sun Sep 17 21:50:09 IST 2023 NEUTRAL CITATION C/SCA/4225/2018 ORDER DATED: 13/02/2023 undefined application came to be objected by the respondent - original plaintiff on the ground that production of the documents and prayer to give exhibit to the same is not made on behalf of rest of the defendants, apart from the petitioners and therefore, the said application may kindly be rejected.
2.7. It is stated that, such objections by the plaintiff is not tenable in the eyes of law, in view of the fact that the co- defendant i.e. No. 11 to 16 and 18 to 22 have already filed their written statements to support the case of the plaintiff, and therefore, the question to prefer any prayer contradictory to the case of the plaintiff, as such defendants are clearly acting in collusion with the plaintiff.
2.8. The trial Court vide impugned order dated 20.12.2017 refused the application below Exh.104 on the ground that the production of documents is preferred by the petitioners at the stage of evidence of the plaintiffs and the defendants cannot shift their burden to prove the 114 documents upon the plaintiffs, and therefore, exhibits cannot be given to such documents produced at Exh.103, however, the trial Court deferred the decision to give exhibit to such documents in future, after the completion of evidence of plaintiff.
2.9. The petitioners herein preferred another application below Exh.110 to allow the petitioners / co-defendants to at least refer the said documents duly produced at Exh.103, while Page 5 of 14 Downloaded on : Sun Sep 17 21:50:09 IST 2023 NEUTRAL CITATION C/SCA/4225/2018 ORDER DATED: 13/02/2023 undefined conducting the cross-examination of the plaintiff. It was reiterated in the said application that the said documents being in public domain are admissible in nature of Section 76 of the Evidence Act. It is stated that the plaintiff witness may admit or deny such documents in his cross-examination but the right of the petitioners to cross-examine the plaintiff by referring to such 114 documents cannot be curtailed in view of the provision of order- XIII, Rule-1(3) of the Civil Procedure Code, 1908, as for the purpose of cross-examination, the witness in box can always be referred to any additional documents by the otherside, in order to reveal the truthfulness of the case of the plaintiff. It is stated that, in spite of such settled legal position, the trial Court by order dated 31.01.2018 rejected the application below Exh.110 on the ground that, in view of the order passed below Exh.104, the trial Court does not have any power to review its earlier decision.
2.10. Being aggrieved by the impugned orders passed below Exh.104 dated 20.12.2017 and Exh.110 dated 31.01.2018 passed in Special Civil Suit No. 24 of 2017 (renumbered as Special Civil Suit No. 45 of 2018), the petitioners herein - original defendant nos. 5, 6, 7 and 9 have approached this Court under Article 227 of the Constitution of India, seeking the following reliefs:
"(A) By issuing appropriate order and / or direction, Your Lordship may be pleased to quash and set aside the impugned order dated 20/12/2017 passed below Exh. 104 as well as impugned order dated 31/1/2018 passed below Exh.110 in the proceedings of Special Civil Suit No. 24/2017;Page 6 of 14 Downloaded on : Sun Sep 17 21:50:09 IST 2023
NEUTRAL CITATION C/SCA/4225/2018 ORDER DATED: 13/02/2023 undefined (B) Pending the admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the implementation, execution and operation of the impugned order dated 20/12/2017 passed below Exh. 104 as well as impugned order dated 31/1/2018 passed below Exh.110 in the proceedings of Special Civil Suit No. 24/2017 and further be pleased to stay the further proceedings of Special Civil Suit No. 24/2017;
(C) Ad-interim, ex-parte relief in terms of Para No. (B) may be granted;
(D) Your Lordships may be pleased to pass such other and further order as may be required in the nature and circumstances of the case."
3. Heard Mr. Harsh V. Gajjar, learned advocate appearing for the petitioners and Mr. S.P. Majmudar, learned advocate with Mr. Jamshed Kavina, learned advocate appearing for the respondent No.1. Though served, none appeared on behalf of the other respondents.
4. Pending the present proceedings, the Suit is renumbered as Special Civil Suit No. 45 of 2018, which is pending before the Principal Senior Civil Judge & Addl. C.J.M., Taluka: Umargam, Dist.: Vapi.
5.1. Mr. Harsh V. Gajjar, learned advocate appearing for the petitioners mainly placed reliance on the Order-XIII Rule-7(1)
(c) of the Code of the Civil Procedure, 1908 and placing reliance on the same submitted that, though the documents in question which are produced by the petitioners below Exh.103 are not Page 7 of 14 Downloaded on : Sun Sep 17 21:50:09 IST 2023 NEUTRAL CITATION C/SCA/4225/2018 ORDER DATED: 13/02/2023 undefined exhibited, in view of the fact that, the cross-examination of the plaintiff is in process, the defendants while cross-examination be permitted to refer to the said documents duly produced below Exh.103.
5.2. Mr. Gajjar, learned advocate submitted that, the Court below could not have refused to refer to the said documents, in view of provisions of Order-XIII Rule-1(3) of the Code of Civil Procedure, 1908. The documents which are relied upon or the petitioners want to rely upon are public documents, and therefore, even otherwise, they would be permissible under Section 76 of the Evidence Act.
5.3. It was submitted that the Court below erred in rejecting such application preferred by the petitioners. It was submitted that the application below Exh.110, wherein, it was prayed that the said application, is in lieu of the order passed below application Exh.104 dated 20.12.2017 is actually seeking a prayer that the trial Court may consider the application below Exh.110, considering the provisions of Order-XIII Rule-1(3) of the Code of Civil Procedure, 1908.
5.4. Placing reliance on the same, it was submitted that though the application below Exh.104 had not attained finality, for the reason that the Court below while not adjudicating the application below Exh.104 stated that the liberty was reserved qua the petitioners herein to prove the documents duly produced Page 8 of 14 Downloaded on : Sun Sep 17 21:50:09 IST 2023 NEUTRAL CITATION C/SCA/4225/2018 ORDER DATED: 13/02/2023 undefined vide Exh.103, after the stage of cross-examination of the plaintiffs was concluded. The said order below Exh.104 is duly produced at page-23.
6.1. Mr. Majmudar, learned advocate appearing for the respondent no.1 - original plaintiff submitted that no error could have been said to have committed by the Court below in rejecting the application below Exh.110.
6.2. Mr. Majmudar, learned advocate has placed reliance on the order passed below Exh.104 and placing reliance of the same submitted that the respondent no.1 - original plaintiff objected to the knowledge qua the said documents duly produced vide Exh.103. The respondent no.1 - original plaintiff had objected qua the knowledge of the said documents, at the time when the documents were produced below Exh.103 and the same was reiterated at the stage when the application below Exh.104 came to be filed by the respondents - original defendants.
6.3. Mr. Majmudar, learned advocate submitted that the Court below rightly observed that, it was open for the petitioners
- original defendants to prove the said documents at a later stage. The Court below rightly held that in view of the fact that the plaintiff has refused that he has any knowledge about the documents in question, it would not serve any purpose to refer to the said documents, at the time, when the plaintiff is cross- examined by the defendants.
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6.4. Mr. Majmudar, learned advocate also placed reliance on the order passed by the Bombay High Court in Mohammed Abdul Wahid v/s. Nilofer Mohammad Abdul Salim reported in 2021 (3) Maharashtra Law Journal 626 and relied on Para-40 of the said order. However, the said order has been assailed before the Hon'ble Supreme Court of India and is pending adjudication before the Hon'ble Supreme Court.
7. Heard the learned advocates appearing for the respective parties.
8. The facts as stated above being undisputed are not repeated.
9. This Court has considered the documents on record and submissions advanced by the learned advocates appearing for the respective parties.
10. At this stage, it is apposite to refer to the order passed below Exh.104 dated 20.12.2017. The relevant para of the said order reads thus:
"Present application has been submitted to exhibit the documents of Mark-103/1 to 103/114 for the defendants. Considering the record of the present case, the said matter is at the stage of the plaintiff's evidence. During the said stage, present application has been moved by the defendants. Moreover, the said documents have been produced by the defendants during the stage of plaintiff's evidence, but the plaintiff has raised an objection to exhibit the said documents. Considering the provisions of Section-101 and Section-106 of the Page 10 of 14 Downloaded on : Sun Sep 17 21:50:09 IST 2023 NEUTRAL CITATION C/SCA/4225/2018 ORDER DATED: 13/02/2023 undefined Indian Evidence Act, the facts on which the defendants rely upon, has to be proved by the defendants. Moreover, the documents on which the defendants rely upon, stage of evidence to prove those documents is still pending. Moreover, the defendants have to prove the said documents submitting the affidavit of their evidences. Presently, the defendant wants to refer the said documents during the cross examination of the plaintiff and the said documents are referred altogether. Thereafter, present application of the defendant has been heard. In the said documents, the defendant has produced certified copies of revenue records, revenue receipts, cases pending before the courts and revenue officers and deeds. The facts of the said documents are required to be proved by the defendant during his evidence. The defendant wants to exhibit the said documents by referring the same during the cross examination of the plaintiff. Considering the said facts, it appears that the defendants are attempting to transfer his burden of proof on the plaintiff. Moreover, referring the said documents during the deposition of the plaintiff at present stage would merely waste of time as the endorsement has been made that the plaintiff does not know anything about the said documents. Therefore, the purpose of the justice would not be maintained if the said documents are exhibited at this stage. Therefore, it is here by ordered to decide the said application only after the defendants prove the said documents during his evidence.
Pronounced in the open court today on 20/12/2017."
11. The petitioners - original defendants, after the said order came to be passed below Exh.104, preferred an application below Exh.110 dated 17.01.2018, which was an application filed in lieu of order below Exh.104 dated 20.12.2017, which is duly produced at page-24. The prayers as prayed for in the said application reads thus:
"7. Therefore the defendant prays as under:
(a) The Hon'ble Court may please to pass an order in lieu of the order below Exh.104 and may clarify that the defendant is allowed to refer all such documents to refreshing the memory of Page 11 of 14 Downloaded on : Sun Sep 17 21:50:09 IST 2023 NEUTRAL CITATION C/SCA/4225/2018 ORDER DATED: 13/02/2023 undefined the plaintiff being witness in cross examination by showing the documents to the witness, in the interest of justice.
(b) such other relief or reliefs that may be necessary be granted in favour of the defendant in the interest of justice.
(c) The cost of the application may please be awarded from the plaintiff."
12. The trial Court while refusing to entertain the said application below Exh.110, passed the following order on 31.01.2018, the operative part of the said order reads thus:
"Considered the case records. The defendants had earlier filed application vide Exhibit-104 to refer the documents and to exhibit them. Passing detailed order below the said application, it was ordered to decide the application of Exhibit-104 after the defendants produce their evidence. The application of Exhibit-104 was decided on 20/12/2017 and the defendants submitted an application of Exhibit-109 to challenge the said order before the Hon'ble Gujarat High Court. However, it does not reveal that the defendants have challenged the order below Exhibit-104 till today. Moreover, the defendants have submitted present application to refer the documents vide Mark-103/1 to 103/114. The judgments of Hon'ble Supreme Court as well as Hon'ble Jharkhand High Court have been produced for the defendants, which have been perused. The said judgments are regarding the admissibility of certified copies obtained from the government officers as evidences. Moreover, the principles have been established in the said judgments regarding to give tentative exhibits. Moreover, this court has passed detailed order below Exhibit-104 and as this court has no power to review its own order, the said application is disposed of.
Pronounced in the open court today on 31/01/2018."
13. Having gone through the orders impugned, the Court below while considering the prayers, so far as the challenge qua the order passed below Exh. 104 dated 22.12.2017 is concerned, Page 12 of 14 Downloaded on : Sun Sep 17 21:50:09 IST 2023 NEUTRAL CITATION C/SCA/4225/2018 ORDER DATED: 13/02/2023 undefined the Court below has held that petitioners herein to prove the said documents, after the examination of the original plaintiff is over, and therefore, right of the petitioners could be said to have been intact and the same is not curtailed by the impugned order. The Court below while declining to the permission to refer to the said documents held that, in view of the fact that the plaintiff has denied the knowledge of the said documents, the same would not serve any purpose for permitting the petitioners herein - original defendants to refer to the said documents. While rejecting the application below Exh.110, the Court below has referred to the application below Exh.104 and stated that the order passed below Exh.104 has attained finality and the same has remained unchallenged. The same is a reasoned order passed by the Court below, considering the facts of the Suit. Further it was held by the Court below that the documents which are produced by the defendants - petitioners herein below mark upon Mark-103/1 to 103/114 which are sought to be referred to by the petitioners - original defendants, the same have been denied to be referred to in the application below Exh.104 and therefore, permitting the said application below Exh.110 would amount to reviewing the order passed by the trial Court dated 20.12.2017.
14. In view of this Court, it is undisputed that the Court below while passing the order below Exh.104 had stated that the said reference to the document would not be permitted in view Page 13 of 14 Downloaded on : Sun Sep 17 21:50:09 IST 2023 NEUTRAL CITATION C/SCA/4225/2018 ORDER DATED: 13/02/2023 undefined of the fact that original plaintiff had denied the knowledge of the said documents, which are produced at Mark-103/1 to 103/114. For the said reason, no interference is called for, in the orders passed below Exh.104 dated 20.12.2017 and Exh.110 dated 31.01.2018 in the facts of the present case.
15. However, it is directed that once the stage of cross- examination of the original plaintiff be concluded, petitioners herein to prove the documents below Mark-103/1 to 103/114 duly produced at Exh.103, if such documents are proved by the petitioners - original defendants, it will be open for the petitioners herein - original defendants to file an application seeking recall of the original plaintiff and their witnesses, considering the facts of the present case and the Court below to proceed accordingly, in accordance with law.
16. Without interfering in the orders impugned, the Suit i.e. Special Civil Suit No. 45 of 2018 may proceed in accordance with law and in terms of the directions issued by this Court, as referred above.
With the aforesaid, the present petition stands disposed of, accordingly.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 14 of 14 Downloaded on : Sun Sep 17 21:50:09 IST 2023