Gujarat High Court
Mahammad Hanif Ismailbhai Haji Afzal ... vs Yusuf Ibrahim Bhana Since Decd Through ... on 7 August, 2025
NEUTRAL CITATION
C/SCA/10848/2025 ORDER DATED: 07/08/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10848 of 2025
==========================================================
MAHAMMAD HANIF ISMAILBHAI HAJI AFZAL BOKDA
Versus
YUSUF IBRAHIM BHANA SINCE DECD THROUGH LH & ORS.
==========================================================
Appearance:
MR KEVALSINH B RATHOD(10250) for the Petitioner(s) No. 1
MR.AMIT R JOSHI(6682) for the Petitioner(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/08/2025
ORAL ORDER
1. At the outset, learned advocate Mr. Amit R. Joshi for the petitioner, under the instruction of his client, does not press the present writ application, qua the trial Court's order dated 13.06.2024 passed below Exh. 161 in Special Civil Suit No. 11 of 2023 (old Regular Civil Suit No. 25 of 2008).
2. So, in view of the aforesaid, the present writ application filed under Article 227 of the Constitution of India is confined to the order dated 13.06.2024 passed by the trial Court below Exh. 160 in Special Civil Suit No. 11 of 2023 (old Regular Civil Suit No. 25 of 2008).
Page 1 of 10 Uploaded by SALIM(HC01108) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:11:23 IST 2025NEUTRAL CITATION C/SCA/10848/2025 ORDER DATED: 07/08/2025 undefined 3.0 Learned advocate Mr. Joshi would state that the trial Court has committed serious error of law by not allowing the impugned application filed below Exh. 160 by the petitioner, who happens to be plaintiff of Special Civil Suit No. 11 of 2023 pending before the Principal Senior Civil Judge, Godhra, whereby request of the petitioner to re-open his right to lead evidence is rejected.
3.1 Learned advocate Mr. Joshi would further state that during the pendency of the suit, there was an execution of registered sale-deed by the original defendant No.1 & 2 in favour of defendant No.3 to 8 who are joined in the suit vide its order dated 03.11.2022 and so also plaint was permitted to be amended by the trial Court. It is submitted that upon such addition of defendants and amendment of pleadings, the trial Court ought to have permitted the plaintiff to lead appropriate evidence on record, including the sale-deed executed between the defendants.
3.2 Learned advocate Mr. Joshi would further submit that no prejudice would be caused to the defendants if the prayer made in the impugned application could have been accepted by the trial Court, inasmuch as the defendants could have cross examined the plaintiff, the evidence led by him.
Page 2 of 10 Uploaded by SALIM(HC01108) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:11:23 IST 2025NEUTRAL CITATION C/SCA/10848/2025 ORDER DATED: 07/08/2025 undefined
33. Learned advocate Mr. Joshi would further submit that as per the provisions of Order 7 rule 14 (3) read with Order 18 rule 17 of CPC, the trial Court ought to have allowed the impugned application in the interest of justice. He would also submit that the trial Court has seriously erred in not granting any relief as prayed in the impugned application.
3.4 Making the above submission, learned advocate Mr. Joshi would request this Court to allow the present writ application.
4. This Court has examined the impugned application filed below Exh. 160 and so also gone through the impugned order passed thereon. It has been specifically observed by the trial Court that sufficient opportunity was granted/ given to the petitioner- plaintiff to lead his evidence. The evidence of the defendants were also got over. So, considering the aforesaid facts and circumstances, at the stage on which the suit reaches i.e. at final hearing, such application could not have been granted by trial Court. As such the view taken by the trial Court seems reasonable and appropriate and by no means, it can be said to be perverse, erroneous, arbitrary and not in accordance with law.
5. The issue germane in the present writ application is Page 3 of 10 Uploaded by SALIM(HC01108) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:11:23 IST 2025 NEUTRAL CITATION C/SCA/10848/2025 ORDER DATED: 07/08/2025 undefined squarely covered and answered by the Hon'ble Apex Court in its decision given in the case of Bagai Construction through its Proprietor Lalit Bagai Vs. Gupta Building Material Store reported in (2013) 14 SCC , wherein held as under :-
"6. The only point for consideration in this appeal is whether the plaintiff has made out a case for allowing the applications one filed under Order XVIII Rule 17 read with Section 151 CPC and another application under Order VII Rule 14 read with Section 151 CPC? The trial Court dismissed both the applications, however, the High Court by the impugned order set aside the order of the trial Court and directed taking on record the bills which are proposed to be filed by the plaintiff, granted permission to recall PW-1 to prove those bills. The High Court passed such order in favour of the plaintiff subject to payment of cost of Rs.5,000/-
7. In order to find out the acceptability of the impugned order or not, it is useful to refer the relevant provisions of the CPC which read thus:
7.1 Order VII Rule 14
14. Production of document on which plaintiff sues or relies.- (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
Page 4 of 10 Uploaded by SALIM(HC01108) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:11:23 IST 2025NEUTRAL CITATION C/SCA/10848/2025 ORDER DATED: 07/08/2025 undefined (4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory."
Order XVIII Rule 17 "17. Court may recall and examine witness.- The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit." Section 151 of CPC 7.3 Section 151 of CPC "151. Saving of inherent powers of Court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
9. In Vadiraj Naggappa Vernekar (dead) through LRs. vs. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410, this Court had an occasion to consider similar claim, particularly, application filed under Order XVIII Rule 17 and held as under:
"25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.
28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re- examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.
29. It is now well settled that the power to recall any witness Page 5 of 10 Uploaded by SALIM(HC01108) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:11:23 IST 2025 NEUTRAL CITATION C/SCA/10848/2025 ORDER DATED: 07/08/2025 undefined under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination.
31. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out."
10. If we apply the principles enunciated in the above case and the limitation as explained with regard to the application under Order XVIII Rule 17, the applications filed by the plaintiff have to be rejected. However, learned counsel for the respondent by placing heavy reliance on a subsequent decision, namely, K.K. Velusamy vs. N. Palanisamy, (2011) 11 SCC 275, submitted that with the aid of Section 151 CPC, the plaintiff may be given an opportunity to put additional evidence and to recall PW-1 to prove those documents and if need arises other side may be compensated. According to him, since the High Court has adopted the said course, there is no need to interfere with the same.
11. In Velusamy (supra) even after considering the principles laid down in Vadiraj Naggappa Vernekar (supra) and taking note of Section 151 CPC, this Court concluded
22........that in the interests of justice and to prevent abuse of the process of the Court, the trial Court is free to consider whether it was necessary to reopen the evidence and if so, in what manner and to what extent.
12. Further, it is observed that the evidence should be permitted in exercise of its power under Section 151 of the Code. The following principles laid down in that case are relevant:
"19. We may add a word of caution. The power under Section Page 6 of 10 Uploaded by SALIM(HC01108) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:11:23 IST 2025 NEUTRAL CITATION C/SCA/10848/2025 ORDER DATED: 07/08/2025 undefined 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.
14. The perusal of the materials placed by the plaintiff which are intended to be marked as bills have already been mentioned by the plaintiff in its statement of account but the original bills have not been placed on record by the plaintiff till the date of filing of such application. It is further seen that during the entire trial, those documents have remained in exclusive possession of the plaintiff but for the reasons known to it, still the plaintiff has not placed these bills on record. In such circumstance, as rightly observed by the trial Court at this belated stage and that too after the conclusion of the evidence and final arguments and after reserving the matter for pronouncement of judgment, we are of the view that the plaintiff cannot be permitted to file such applications to fill the lacunae in its pleadings and evidence led by him. As rightly observed by the trial Court, there is no acceptable reason or cause which has been shown by the plaintiff as to why these documents were not placed on record by the plaintiff during the entire trial. Unfortunately, the High Court taking note of the words "at any stage" occurring in Order XVIII Rule 17 casually set aside the order of the trial Court, allowed those applications and permitted the plaintiff to place on record certain bills and also granted permission to recall PW-1 to prove those bills. Though power under Section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of the court and Court can exercise its discretion to permit reopening of evidence or recalling of witness for Page 7 of 10 Uploaded by SALIM(HC01108) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:11:23 IST 2025 NEUTRAL CITATION C/SCA/10848/2025 ORDER DATED: 07/08/2025 undefined further examination/cross-examination after evidence led by the parties, in the light of the information as shown in the order of the trial Court, namely, those documents were very well available throughout the trial, we are of the view that even by exercise of Section 151 of CPC, the plaintiff cannot be permitted.
15. After change of various provisions by way of amendment in the CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC. "
(emphasis supplied)
6. The ratio of the aforesaid decision, if applied to the facts of the case on hand, one cannot find fault to the recourse adopted by the trial Court. The plaintiff is not able to make out a case whereby the relief as prayed in the impugned application can be granted in his favour, inasmuch as when the trial Court vide its 03.11.2022 allowed his Page 8 of 10 Uploaded by SALIM(HC01108) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:11:23 IST 2025 NEUTRAL CITATION C/SCA/10848/2025 ORDER DATED: 07/08/2025 undefined application filed below Exh. 127 thereby joined defendant No. 3 to 8 in the suit proceedings proceeding and so also permitted to amend the pleading of the plaintiff. At that stage, the plaintiff could have availed the opportunity to lead appropriate evidence as at that stage, his oral evidence was not concluded. No satisfactory explanation coming forth from the side of the plaintiff, why he did not availed such opportunity. When, the trial has been virtually completed and the suit which reached at the stage of final argument of the parties, granting such prayer made in the impugned application, would amount to reopen trial. Now, at this stage, if plaintiff allows to lead his evidence, would virtually amount to ordering re-trial of suit. This cannot be considered and accepted, more particularly the suit was instituted in the year 2008.
7. Before parting, it would also requires to be observed that this Court while exercising its power under Article 227 of the Constitution of India cannot routinely interfere with the order passed by the trial Court unless it has been shown to this Court that there is a gross error of law and or jurisdictional error committed by the trial Court which goes to the route of the matter. No such case is made out by plaintiff. [See : (i) Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (Para Page 9 of 10 Uploaded by SALIM(HC01108) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:11:23 IST 2025 NEUTRAL CITATION C/SCA/10848/2025 ORDER DATED: 07/08/2025 undefined 6 and 7) and (ii) Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and 16)].
8. Thus, in view of the aforesaid facts and circumstances of the case and so also foregoing reasons, I do not find any merit in the present writ application, which requires to be rejected, which is hereby rejected. No order as to costs. The trial Court should proceed with the suit at earliest.
(MAULIK J.SHELAT,J) SALIM/ Page 10 of 10 Uploaded by SALIM(HC01108) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:11:23 IST 2025