Gujarat High Court
Sama Piyushbhai Shah vs Madanlal Hastimal Rathi on 24 October, 2019
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/12373/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12373 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR.JUSTICE A. P. THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SAMA PIYUSHBHAI SHAH
Versus
MADANLAL HASTIMAL RATHI
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Appearance:
MR MEHUL S SHAH, Senior Advocate with ASHISH M DAGLI(2203) for the
Petitioner(s) No. 1
MR MIHIR THAKORE, Senior Advocate with MR SALIL M THAKORE(5821)
for the Respondent(s) No. 3
MR YOGESH LAKHANI, Senior Advocate with MR. JAY M THAKKAR(6677)
for the Respondent(s) No. 1,4,5,6
UNSERVED REFUSED (N)(10) for the Respondent(s) No. 2
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CORAM: HONOURABLE DR.JUSTICE A. P. THAKER
Date : 24/10/2019
ORAL JUDGMENT
1. Rule. Learned advocates appearing for the respective respondents waive service of notice of rule. Being aggrieved Page 1 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019 C/SCA/12373/2019 JUDGMENT and dissatisfied with the order passed below Exh.28 in Regular Civil Suit No.766 of 2018 by learned 6th Additional Civil Judge and JMFC, Baroda, allowing the application preferred by the Police Inspector of DCB Police Station, Baroda City, the petitioner-original plaintiff has preferred present petition.
2. Short facts giving rise to the present petition are that the petitioner is original plaintiff who has preferred Regular Civil Suit No.766 of 2018 seeking declaration and permanent injunction with respect to the Will executed by the deceased Indira Betiji on 1.11.2015 and also prayed to allow the plaintiff to do the work as enumerated in the Will dated 1.11.2015, as defendants made obstruction against the plaintiff. It is also the case of the petitioner that, along with the plaint, all documentary evidence including the copy of Will and details in respect of the correspondences made with police agency were annexed with the plaint and injunction application under Order 39, Rule 1 and 2 was filed. It is the contention of the plaintiff that, after service of summons, the defendant appeared through their advocate and on different occasions sought time to file written statement but they have not filed the same. It is also contended that the plaintiff has filed purshis at Exh.21 since an absolute false FIR has been filed and such FIR was also registered with DCB Police Station as I-C.R.No.20/2018 for the offence under Section 406, 420, 506 (2) and 120 (B) of IPC for which the petitioner was constrained to approach this Court for seeking writ under Section 439 and the bail to the petitioner was granted on 1.11.2018. It is also contended that as there was likelihood of filing of another false case since the applications are repeatedly made time and again with respect to the same issue and also attempted to collect the original Page 2 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019 C/SCA/12373/2019 JUDGMENT documents from the petitioner, she has submitted purshis at Exh.21 to allow her to place on record the original documents and to place the same in the safe custody of Nazir of the Court. It is contended that that application was allowed and original deed was kept in the custody of Nazir. It is contended that subsequently the application was submitted by the Police Sub Inspector, DCB Police Station vide Exh.28 seeking original Will for investigation purpose. The same was opposed by the petitioner by filing written objections. However, the learned trial Court has granted the prayer of the Police Sub-Inspector and ordered to hand over the original Will to the investigating officer. According to the petitioner, the trial Court has committed serious error of facts and law in passing the impugned order. It is contended that the defendants are not filing any written statement and through police agency they are trying to harass and pressurize the petitioner. It is also contended that there is serious apprehension and likelihood of tampering with the original Will, which was kept in the safe custody of the Court. It is also contended by the petitioner that the matter is sub-judice before the competent civil court and the Court below ought not to have allowed said application at Exh.28. It is also contended that the suit is yet to be tried and evidence is yet to be laid and even reply is also yet to be filed by the defendants. It is submitted that learned trial Court has committed serious error of law and facts, which requires to be corrected and the impugned order is required to be set aside.
3. Heard learned counsel Mr.Mehul S. Shah appearing with Mr.Ashish Dagli for the petitioner, Mr.Yogesh Lakhani, learned Senior Counsel appearing with Mr.Jay Thakkar for respondent nos.1, 4, 5 and 6 and learned Senior Counsel, Mr.Mihir Thakore Page 3 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019 C/SCA/12373/2019 JUDGMENT appearing with Mr.Salil Thakore for respondent no.3. Though respondent no.2 is served, he chose not to appear. Perused the material placed on record.
4. Learned Senior Counsel, Mr.Mehul S. Shah appearing with Mr.Ashish Dagli for the petitioner submitted that same facts, which are narrated in the memo of the petition. Mr.Shah has referred to the complaint as well as the application filed by the Police Sub Inspector, DCB, and has submitted that the defendants are trying to pressurize the petitioner through the police agency. According to him, the plaintiff has submitted a copy of Will at the time of filing of the suit and as the police authority was insisting for original Will, the plaintiff had submitted it before the Court to avoid any tampering with the original Will. It is submitted by Mr.Shah, learned Senior Counsel for the petitioner that there is apprehension that the police authority may tamper with the original Will and thereby defeat the suit of the plaintiff. According to Mr.Shah, therefore, the plaintiff has produced original Will before the Court. He has also contended that the Police Sub Inspector is not a party to the suit and that he has filed the application. It is also contended that, without filing reply to the suit, defendants are taking shelter under under Criminal law. According to him, now only defendant no.5 has filed written statement. According to him, the Civil Court is the competent Court to decide the genuineness of the Will and Will cannot be given to the police for investigation. While referring to the order of bail granted to the petitioner by this Court, learned counsel Mr.Shah has submitted that at that time the investigating officer did not ask for the original Will and has not stated before this Court that he is in need of original Will. He has also contended that it is the Page 4 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019 C/SCA/12373/2019 JUDGMENT Civil Court's prerogative to decide the legality of the Will and the Civil Court is seized with the matter and, therefore, the original Will ought not to have been ordered to be handed over to the investigating officer. Shri Shah, learned Senior Counsel has also submitted that after recording of evidence in the civil suit, police may be permitted to get the documents and the impugned order may be modified accordingly. He has also submitted that the suit was filed on 17.11.2018, whereas the complaint is filed in March 2019, therefore, the complaint is filed after filing of the suit. It is contended that the conduct of the defendant should also be taken into consideration and at the instance of the defendants the police has filed application to get the documents for investigation purpose. By relying upon the following decisions, learned counsel has prayed to allow present petition by setting aside the impugned order of the learned trial Court.
(i) Manharben Mahendrakumar Dhandhal v. Preetbhai Valegbhai Dhandhal, 2016 (0) AIJEL-HC 234020.
(ii) M/s.Karamchand Ganga Pershad and Another v.
Union of India and Others, AIR 1971 SC 1244.
5. Per contra, learned Senior Counsel, Mr.Y.S.Lakhani for respondent nos.1, 4, 5 and 6 has vehemently submitted that the trial Court has not committed any error of facts and law in allowing the application of the PSI, DCB, Baroda, by allowing him to get the original Will for investigation. He has also submitted that the matter is of the Will, however, the property is of a trust, which cannot be bequeathed. He has also contended that the trustee cannot pass any right or title in a Page 5 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019 C/SCA/12373/2019 JUDGMENT trust property to any other person. While referring to the documents produced in the matter, learned counsel has submitted that, at the instance of the plaintiff, there are trusts created and the property has been transferred to the Trust, though the petitioner was not the owner of the trust property and she was only a trustee. According to him, trustee has no power to pass any ownership or transfer any trust property to another trust. He has also contended that there are relatives of the deceased Indira Indira Betiji and, therefore, it is not possible that she would bequeath the property to a third party. It is also contended that with a view to stall the investigation, the plaintiff has put the original Will in the Court custody. He has also contended that the investigating officer has ample power to get the document for investigation purpose and the document could be examined by FSL. It is also contended that as the plaintiff was not cooperating in investigation, the police has sought for document from the Court and the trial Court has rightly passed the impugned order. According to him, there was no stage of production of original document and yet to stall the investigation the plaintiff has filed original document in the Court. It is contended that the suit is at primary stage and the defendants are yet to file written statement in the suit. According to him, precedence be given to criminal proceedings over the civil proceedings. According to him, learned trial Court has properly exercised its jurisdiction in passing the impugned order. He has submitted to dismiss the present petition by relying upon following decisions.
(i) Bhagwan Sahai and Another v. Manoj Kumar and Others reported in 2016 Criminal Law Journal 4714.Page 6 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019
C/SCA/12373/2019 JUDGMENT
(ii) Saiyed Askari Hadi Ali Augustine Imam and
Another v. State (Delhi Administration) and
Another, (2009) 5 SCC 528.
6. Learned Senior Counsel, Mr.Mihir Thakore appearing for respondent no.3 has vehemently submitted that under Section 91 of the Criminal Procedure Code absolute power has been given to the police officer for investigation. He has also submitted that, in a civil matter, the police party can file an application, which may be treated under Section 151 of the Civil Procedure Code and the police is entitled to move such an application for proper investigation of the case. According to him, there is an issue of forgery, which is to be determined by the police and the Criminal Court. According to him, civil and criminal proceedings can run together. Learned counsel, Mr.Mihir Thakore also submitted that the suit is not at the stage of evidence and it is at preliminary stage. Regarding conduct of the plaintiff, it is submitted by Mr.Mihir Thakore that the object of placing original document in the Court custody is to stall the investigation. Regarding the order passed by this Court in bail application, it has been submitted that the Court has permitted the police to investigate the case and there was no stay against the investigation and it was only stay against taking coercive steps. He has supported the reasoning of the trial Court and has submitted that the present petition may be dismissed by confirming the order of the trial Court. He has relied upon following decisions.
(i) M.S.Sheriff, P.C.Damodaran Nair and State of Madras, M.Govindan, Damodaran, AIR 1954 SC 397.Page 7 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019
C/SCA/12373/2019 JUDGMENT
(ii) Lakshmi and Another v. Chinnamal alias Rayyamal and Others, (2009) 13 SCC 25.
7. In rejoinder, Senior Counsel, Mr.Mehul Shah has submitted that the date of filing of complaint is 11.3.2019 and before that the suit was filed and the averments for filing the suit were there in Exh.21 application. He has also contended that, in the suit, the capacity to bequeath is in question but not the Will. It is also contended that the defendants are also beneficiary of the Will and they are executor. By referring to the plaint, he has submitted that all these facts are narrated before filing of present FIR. While referring to the judgment of this Court in the case of Manharben Mahendrakumar Dhandhal (supra), he has submitted that power of the police to get custody of original documents is the ratio of this judgment and he has also submitted that circumstances has to be looked into. He has also contended that under Section 91 of the Criminal Procedure Code, it is the power of the police to get documents from the person/s and not from the Court. According to him, the Court is not the person and, therefore, the police cannot request the Court to hand over the documents in question. It is also contended that no inherent powers under Section 151 would apply. According to him, forgery can be even decided by the Civil Court. Regarding decisions relied on by the other side, learned Senior Counsel Mr.Shah submitted that all the circumstances of those cases are different from present case. According to him, the defendants ought to have filed written statement and the document could be examined by FSL. He has also contended that, in the present matter, defendants have not filed any Page 8 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019 C/SCA/12373/2019 JUDGMENT pleadings and no dispute is raised regarding Will and for verification of the Will exercise may be undertaken by the Civil Court and there is no question of giving Will to the police for investigation purpose. He has contended that the grievance is against the police authority. He has prayed to allow present petition.
8. In the case of Manharben Mahendrakumar Dhandhal (supra), the custody of the original document was with the Court and during the course of evidence, the learned trial Judge handed over custody of the same to investigating officer in respect of investigation on the basis of the complaint, which is yet to be registered as FIR and evidence of respondent- plaintiff was in progress. Under these circumstances, it was observed by this Court that there was no necessity on the part of the Court to pass the impugned order to hand over custody of the original documents on the basis of the complaint lodged by the respondent-plaintiff. It is held that in fact the learned trial Judge ought to have kept the application preferred by the investigating officer pending and ought to have the recording of evidence of both sides and, more so, necessary expert opinion is already on record. It was also observed that the investigating officer is at liberty to move such application after conclusion of evidence by the concerned investigating officer and learned trial Judge shall consider the same in accordance with law.
9. In M/s.Karamchand Ganga Pershad and Another (supra), it was observed that it is a well settled principle of law that the decision of the Civil Courts are binding on the criminal courts and the converse is not true. So far as written Page 9 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019 C/SCA/12373/2019 JUDGMENT statement of defendant no.5 in Regular Civil Suit No.766 of 2018 is concerned, it appears that defendant no.5 has taken a stand that he has filed a petition for probate of the alleged Will and probate Court can decide the genuineness of the Will.
10. In Bhagwan Sahai and Another (supra), it is observed in paragraph 9 that the Court cannot refuse to hand over such document to police merely on the ground that no useful purpose will be served to undertake investigation as cognizance cannot be taken by any Court unless the complaint is filed before that Court. It is also observed in paragraph 13 that the investigating officer can make a request to the Court to hand over the documents in its possession for investigation purpose. It is also observed therein that Chapter-XII of Criminal Procedure Code, police has wide power of investigation and in exercise of that power, the investigating officer can request the Court also to hand over him document alleged to be forged for being examined by FSL. It is also observed therein that process of criminal law cannot be scuttled and the document alleged to have been forged is required to be given to investigating agency for investigation. It was also observed that the document, which has been alleged to be forged and fabricated and which has already been filed in a civil or criminal court and is in the custody of the Court, it can be handed over to investigating agency for the purpose of examination by FSL.
11. In Saiyed Askari Hadi Ali Augustine Imam and Another (supra), it is observed as under:-
Page 10 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019C/SCA/12373/2019 JUDGMENT "22. It is, however, now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible. .....
24. If primacy is to be given to a criminal proceeding, indisputably, the civil suit must be determined on its own merit, keeping in view the evidences brought before it and not in terms of the evidence brought in the criminal proceeding. ....."
12. In M.S.Sheriff, P.C.Damodaran Nair (supra), the Supreme Court in paragraph 15 and 16 has observed as under:-
"15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should 1149 be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule ban. be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things glide till memories have grown too dim to trust. This,however, is not a hard and fast Page 11 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019 C/SCA/12373/2019 JUDGMENT rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so hear its end as to make it inexpedient to stay it in order to give precedence to a prosecution order of under section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."
13. In Lakshmi and Another v. Chinnamal alias Rayyamal and Others (supra), in paragraphs 13 and 14 it is observed as under:-
"12. If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court's duty being to find out the truth. The procedural mechanics necessary to arrive at a just decision must be encouraged. We are not unmindful of the fact that the court in the said process would not encourage any fishing enquiry. It would also not assist a party in procuring a document which he should have himself filed.
13. There cannot furthermore be any doubt that by calling for such documents, the Court shall not bring about a situation whereby a criminal proceeding would remain stayed as it is a well settled principle of law that where a Civil proceeding as also a Criminal proceeding is pending, the latter shall get primacy."
14. Considering the submissions of the learned counsel for the parties and the material placed with the matter, it is undisputed facts that the plaintiff has filed the suit on the basis of alleged Will dated 1.11.2015 executed by Indira Betiji. It is also undisputed fact that at the time filing the suit, the copy of the Will was produced and during pendency of the suit i.e. before filing of the written statement by the defendants, the plaintiff has produced original Will for safe custody in the Court Page 12 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019 C/SCA/12373/2019 JUDGMENT and learned trial Court has permitted the plaintiff to produce the original Will, which is kept in the custody of Nazir of the Court. It is also undisputed fact that the criminal complaint has been lodged against the plaintiff regarding forgery of the said Will and the DCB police is investigating the same. It is also undisputed fact that the Police Inspector, DCB, has filed an application before the trial Court for getting the original Will in question for sending it for investigation to FSL. The moot question is whether the trial Court can hand over the original Will to the police for investigation or not. It is an admitted fact that entire controversy is relating to forgery of the Will and for proper investigation of the criminal offence, it is but necessary for the investigating officer to take the document for the purpose of examination through FSL. If the original Will is not provided to the investigating officer then entire investigation of the offence could not be carried out and the investigating officer would not be in a position to complete the investigation. At the same time, if the document is handed over to the investigating officer for investigation purpose then no right of the plaintiff would be jeopardized. Of course, apprehension on the part of the plaintiff regarding tampering with the Will is concerned, it can be protected by incorporating certain conditions. It is well settled that in a given case, when there is an element of allegation of fabrication and forgery of the document, the document in the custody of the Court can be handed over to the investigating officer, as and when it is requested by the investigating officer. Now so far as the power of Civil Court to decide the genuineness of the Will is concerned, Civil Court also has power and authority to decide that question and the party concerned may lead evidence to that effect. But when there is a question relating to forgery or Page 13 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019 C/SCA/12373/2019 JUDGMENT fabrication of the Will, then criminal law will come into play and the necessity is to complete the investigation in criminal case. It is necessary for the investigating agency to have original document so that the investigation can be completed and provision of the criminal law can be satisfied.
15. In view of this legal scenario, in the present case, when there is allegation of fabrication and forgery of the document, it is necessary that the original Will may be handed over to the investigating officer for examination through FSL. So far as apprehension of tampering with the original Will is concerned, to safeguard the interest of the plaintiff certified copy thereof may be prepared by the Court itself and it may be kept in the record by giving a copy to both the parties and the original Will may be handed over to the investigating officer, with a condition that as soon as the report of FSL is received, the original should be placed before the Civil Court by the investigating officer, by keeping a copy thereof in a criminal matter. If such course is adopted then there will be no prejudice to either of the parties.
16. On perusal of the impugned order of the trial Court, it appears that it has directed the investigating officer to get the certified copy at his level and then to submit to the trial Court. This observation is required to be modified in a manner that the trial Court itself should get the xerox copy of the Will and certify itself and give a copy thereof to the plaintiff as well as the defendants and original should be handed over to investigating officer, with a condition to re-submit it to the trial Court, as and when the report from FSL is received by him, after keeping a copy thereof in criminal matter.
Page 14 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019C/SCA/12373/2019 JUDGMENT
17. In view of above observations, the impugned order is modified to the aforesaid extent. With such observation, present petition stands disposed of. No order as to costs.
Sd/-
(A. P. THAKER, J) FURTHER ORDER
18. At this stage, Mr.Dagli, learned advocate for the petitioner requests to stay the operation this order for some time. There being no substance in such request, the same is declined.
Sd/-
(A. P. THAKER, J) R.S. MALEK Page 15 of 15 Downloaded on : Fri Oct 25 23:12:10 IST 2019