Gujarat High Court
Prathmesh Farms Pvt Ltd & 14 vs Maganbhai Dayalbhai & 49 on 11 August, 2016
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
C/SCA/16033/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16033 of 2013
With
SPECIAL CIVIL APPLICATION NO. 16036 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PRATHMESH FARMS PVT LTD & 14....Petitioner(s)
Versus
MAGANBHAI DAYALBHAI & 49....Respondent(s)
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Appearance:
MR VISHAL K SEVAK, ADVOCATE for the Petitioner(s) No. 1 - 15
MR MEHUL S SHAH, ADVOCATE for the Respondent(s) No. 1 - 2 , 4 - 5
NOTICE SERVED for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 6 - 50
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 11/08/2016
CAV JUDGMENT
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HC-NIC Page 1 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT Special Civil Application No.16033 of 2013 With Special Civil Application No.16030 of 2013
1. Both the captioned matters arise out of two suits being Regular Civil Suit No.43 of 2003 and Special Civil Suit No.383 of 2012 pending before the Court of learned Principal Senior Civil Judge at Surat which have been ordered to be heard together. The petitions involve very short issue, hence, with the consent of the parties both the petitions were heard for final hearing on 04.08.2016 and are being disposed of by this common order.
2. In so far as Special Civil Application No.16033/2013 is concerned, the same is filed by petitioner challenging the order dated 07.10.2013 dismissing the application exhibit-64 in Special Civil Suit No.383 of 2012 which was filed seeking impleadment by present respondent Nos.6-50 as party defendants in the said suit.
In so far as Special Civil Application No.16036/2013 is concerned, the same is filed by petitioner challenging the order dated 07.10.2013 dismissing the application- exhibit-83 Special Civil Suit No.383 of 2012 which was filed seeking production of certain documents from the possession of respondent Nos. 1-2.
3. As regards Special Civil Application No.16033 of 2013, Mr.I.H.Syed learned counsel with Mr.Vishal.K.Sevak, Page 2 of 20 HC-NIC Page 2 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT learned advocate for the petitioners have submitted the Special Civil Suit No.383 of 2013 is filed by the petitioners challenging various sale deeds in respect of the suit land executed in favour of defendants. At the stage of application for interim injunction- exhibit-5, the Trial Court had refused interim injunction and hence, Appeal from order No.222 of 2013 with Civil Application No.5638 of 2013 were preferred before this Court, which have been disposed of vide order dated 31.07.2013.
Relying upon the order passed in Appeal from order No.222 of 2013, Mr.Syed has stated that the respondent nos. 4 and 5 have executed sale deeds in favour of present respondent nos.6 to 50 from time to time and have made disclosures before the learned Trial Court.
Accordingly, petitioners filed application-exhibit 64 in Special Civil Suit No.383 of 2012 praying for impleadment of respondent Nos.6-50 as party defendants and also seeking cancellation of sale deed executed in favour of respondent Nos.6-50. Mr.Syed has further pointed out pages 46-63 of the petition which is copy of the registered sale deed executed by respondent nos.4 and 5 in favour of respondent nos.36-37 wherein two schedules are provided. Schedule-1 gives description of the suit land and schedule-2 gives description of the flat of the scheme namely, "Union Residency" which is sold to the respondent Nos.36-37. Mr.Syed has further pointed out that the respondent nos. 4 and 5 (sellers) have misled the purchasers of flat in "Union Residency" that there are no Page 3 of 20 HC-NIC Page 3 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT proceedings in respect of the said flats and the title of the flats is free and marketable. It is submitted that such description is misleading. It is further submitted by Mr.Syed that even sale deeds and agreements to sell executed in favour of other respondents also make a similar mention of the schedules which is misleading. Mr.Syed has submitted that since the transaction having taken place during the pendency of the Special Civil Suit have been disclosed by the respondent nos.4 and 5 and since the respondent nos.4 and 5 have misled the purchasers by describing the title of undivided share in suit land and flats to be clear and marketable, the petitioners have filed the application-exhibit 64 for amendment as the proposed defendants. The defendants- respondents nos.6 to 50 will be affected parties if the suit is decreed against them. Mr.Syed has also submitted that the petitioners have also sought amendment of valuation of the suit as well as prayers in the suit and hence the new prayers have been prayed for cancellation of sale deeds executed during the pendency of Special Civil Suit No.383 of 2012. Mr.Syed has also submitted that in the event the Special Civil Suit is decreed in favour of the petitioners, then the respondent nos.6 to 50 will have to vacate their house as their sale deeds would automatically stand cancelled. In such an eventuality, the respondent nos.6-50 will be vitally affected and are thus necessary and proper parties to the suit. The respondent nos.6-50 are also affected parties as their sale deeds have been sought to be challenged by way of proposed amendment. Mr.Syed Page 4 of 20 HC-NIC Page 4 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT has further submitted that since the learned Trial Court has held that the sale deeds in favour of the respondent nos.6-50 are covered by the provisions of Section 52 of Transfer of Property Act, the learned Trial Court ought to have allowed amendment application and permitted to implead the respondent nos.6-50 as party defendants and permitted to carry out other amendments as prayed in application-exhibit 64. Mr.Syed has also pointed out from paragraph6 of affidavit in reply filed by present respondent nos.4 and 5 in Civil Application in Appeal from Order No.222 of 2013 which reads as follows.
"I further respectfully submit that even apart from this, this A,B,C and D towers Ten storied have been even sold to third parties by registered sale documents as well as by registered satakats and those third parties have even availed financial housing loans from ICICI Bank, Dena Bank, Vysya Bank, Axis Bank, etc. and those banks while giving financial assistance have even mortgaged these constructions allotted to several third parties and therefore, since these aspects are not disclosed in the appeal from order nor in Civil Application, a one sided prejudicial atmosphere is tried to be created which is far from truth and therefore, if any relief is granted as prayed for would create a serious consequence and adverse impact on third parties who have already availed the financial assistance from various banks and their rights are also entangled. It is worth to be noticed that these facts are well within the knowledge of applicants even by exh-39 which is part of the record. Still however, they have shown an audacity Page 5 of 20 HC-NIC Page 5 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT not to join these 3rd parties conveniently and by suppressing subsequent development took place all throughout has tried to approach this Hon'ble Court to seek an injunction and therefore, this conduct itself disentitles in respectful submission of us to seek any interim reliefs by the applicants"
Relying on aforesaid, Mr. Syed has submitted that on one hand respondent nos.4 and 5 are rising their grievance about non-joinder of third party-purchasers to whom the flats are sold by respondent nos.4 and 5 and on the other hand respondent nos. 4 nad 5 are contesting the application exhibit 64 in the suit which is for joining such third parties as party defendant nos.6-50.
Mr. Syed has relied upon the decision reported (2013) 5 SCC 397-Thomas Press (India) Limited Versus Nanak Builders and Investors Private Limited and the decision of this Court reported in 1983 (1) GLR 529-Bai Mirat Wd/o. Mohanlal Versus Vyas Prahaladji Mohanlal and contended that Section 52 of Transfer of Property Act does not intend to annul the conveyance, but renders it subservient to the rights of the parties to the litigation and a party acquiring any rights pendente lite would be proper and necessary party to a lis. Relying on these decisions, Mr.Syed has submitted that in the present case the transfer pendente lite is in favour of respondent nos.6-50 and thus, respondent nos.6-50 are proper and necessary parties and should be joined as Page 6 of 20 HC-NIC Page 6 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT party-defendants in the suit.
4. Mr. Mehul S. Shah appearing for the respondent nos.1,4 and 5 has pointed out to the reply filed by respondent no.5 and submitted that Appeal from Order Nos.222 of 2013 was decided on 31.07.2013. A brief note on progress of trial after order dated 31.07.2013 is also produced with the reply of respondent Nos.5. Mr. Shah has further submitted that as per Section 52 of Transfer of Property Act, the principle of lis pendens applies to transactions executed during the pendency of suit. Relying upon the judgment of Hon'ble Apex Court in the case reported in AIR 2005 SC 2813- Kasturi Versus Lyyamperunal, Mr.Shah has submitted that a stranger in contract, would not be a necessary and proper party to a suit. Mr.Shah has further submitted that since the principle of lis pendens applies to respondent no.6-50, they need not be joined as party defendants and the suit can proceed further for its expeditious disposal. It is also submitted that the decree, if passed in favour of the petitioners would, by virtue of operation of Section 52 of Transfer of Property Act operate against the respondent nos.6-50. Mr. Shah has further submitted that the application exhibit-64 is filed by the petitioner with a clear intention to delay the progress of trial. Thus, the learned Trial Court has assigned cogent reasons for dismissal of application Exh-64. Mr.Shah has submitted that Special Civil Application No.16033 of 2013 deserves to be dismissed.
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5. This Court has passed the following order on 05.12.2004 in Special Civil Application No.16033 of 2013.
"Learned advocate Mr.I.H.Syed with learned advocate Mr.V.K.Sevak appearing for the petitioners is permitted to add proposed parties as respondent nos. 6 to 50, who have purchased part of property, pending hearing of Special Civil Suit No.383 of 2012. Learned advocate Mr.Syed shall carry out necessary amendment in the cause title of petition during the course of the day.
Upon impleadment of proposed parties as respondent nos.6 to 50, Registry to issue notice to the newly joined respondent nos.6 to 50 making it returnable on 22.12.2014. Ad interim relief granted earlier to continue till then. Direct service is permitted".
Accordingly, the respondent nos. 6 to 50 have been joined as party respondents in Special Civil Application No.16033 of 2013 and the notice is issued to respondent Nos.6 to 50. They have been served by direct service, but have chosen not to appear before this Court.
6. In so far as Special Civil Application No.16036 of 2013 is concerned, Mr.I.H.Syed, learned counsel appearing with Mr.Vishal K. Sevak, learned advocate for petitioner has submitted that the said petition is filed challenging the order passed below application exhibit 83 in Special Civil Suit No.383 of 2012 which is filed by petitioner under Page 8 of 20 HC-NIC Page 8 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT Order 11 Rule 12 of the Civil Procedure Code seeking discovery of certain documents relied upon by respondent nos. 1 and 2 in Regular Civil Suit No. 43 of 2003.
Mr.Syed has submitted that the plaintiff No.1 of Regular Civil Suit No. 43 of 2003 is defendant No.1 in Special Civil Suit No.383 of 2012. As both the suits have only been consolidated, the issues have only been framed in Special Civil Suit No.43 of 2003. In Regular Civil Suit No.43 of 2003, it is the case of the plaintiff that judgment and decree passed in Special Civil Suit No.511 of 1997 has been nullified by exercising certain writings. A reference to such writings comes in response dated 28.09.2001 (Annexure-B) addressed by advocate for respondent no.2 in response to public notice dated 18.09.2001 issued on behalf of the petitioners. Thus, the present petitioner addressed a notice dated 23.08.2013 to the respondent nos.1 and 2 for discovery and inspection of any writings executed in favour of plaintiff of Regular Civil Suit No.43 of 2003 for nullifying the effect of judgment and decree passed in Special Civil Suit No.511 of 1997. The respondent No.1 has replied to the said notice through his advocate vide reply dated 26.08.2013 and has denied production or discovery of such documents. Mr.Syed has submitted that the present petitioners (plaintiffs in Special Civil Suit No.383 of 2012) are claiming that their title over the suit property on the basis of judgment and decree passed in Special Civil Suit Nos.511 of 1997, whereas on the other hand the plaintiffs of Regular Civil Suit No.43 of 2003 have made a claim that the judgment and decree Page 9 of 20 HC-NIC Page 9 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT passed in Special Civil Suit No.511 of 1997 has been nullified by executing certain writings. Thus, the burden to prove the nullity of judgment and decree passed in Special Civil Suit No.511 of 1997 is on the plaintiff of that suit. However, as both the suits are being tried together and as the issues framed are common, the present petitioners have sought discovery of such documents so that present petitioners (being defendants in Regular Civil Suit No.43 of 2003) may not get another opportunity to deal with any such documents being produced by plaintiffs of Regular Civil Suit No.43 of 2003 while leading their evidence of defence in Special Civil Suit No.383 of 2012. Mr.Syed has further submitted that the learned Trial Court has erroneously held that the documents are not clearly described by the present petitioner. Mr.Syed has submitted that the documents sought to be produced vide application-exhibit 83 are first in point of time referred in response dated 28.09.2001 (Annexure-B in SCA 16036/2013) addressed on behalf of respondent no.2. It is the respondent nos. 1 and 2 who desire to seek benefits of documents referred in application-exhibit 83 and such documents would obviously be in possession of respondent No.1 or respondent No.2. Hence, it is prayed to allow production of documents mentioned in application-exhibit 83.
7. Mr. Mehul S. Shah appearing for respondent no.1 has submitted that the application-exhibit 83 is filed solely with an intention to delay the trial. Mr.Shah has relied Page 10 of 20 HC-NIC Page 10 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT upon Order 11 Rule 12 of Code of Civil Procedure, which reads as under:
"Rule-12. Application for discovery of documents-Any party may without filing an affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such applications, the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit or make such order, either generally or limited on certain classed of documents, as may, in its discretion, be thought fit;
Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs."
Mr.Shah has fairly stated that it is a settled legal position, if the documents of which production is sought are not being produced, then the Civil Procedure Code provides for drawing adverse inference.
8. Heard learned counsels for the parties and perused the petitions and replies along with documents produced before this Court.
Special Civil Application No.16033 of 2013.
9. As regards Special Civil Application No.16033 of Page 11 of 20 HC-NIC Page 11 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT 2013, it is submitted by Mr.I.H.Syed, learned counsel for the petitioners that the application for interim injunction- exhibit 5 in Special Civil Suit No.383 of 2013 was dismissed. Thereafter, the present petitioners preferred Appeal from Order No.222 of 2013 along with Civil Application No.5638 of 2013 before this Court which are disposed of vide order dated 31.07.2013. The order dated 31.07.2013 passed in Appeal from Order and Civil Application reads as under:
"1. Mr.S.R.Patel, learned advocate for the appellants does not invite a reasoned order but requests to protect the interest of the appellants (original plaintiff) in the pending suit so that the appellants, if ultimately succeeds in the suit, the decree does not become mere proper-decree.
2. without going out into the merits of the case and considering the facts of the case, the respondent nos. 4 and 5 (original defendant nos. 4 and 5 before the Trial Court) is hereby directed to place on record a copy of agreement/sale deed with regard to any transaction, that may be carried out by them pending hearing of the suit in the record of the proceeding of the suit within one week of execution of such agreement/sale deed in favour of third party. As and when the agreement/sale deed executed by the respondent nos. 4 and 5, they shall specifically mention the fact as to pendency of Special Civil Suit No. 383/2012 and Regular Civil Suit No.43/2003 with respect to the suit-land.
3. The learned Principal District Judge is directed to see that the present Special Page 12 of 20 HC-NIC Page 12 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT Civil Suit No.388/2012 and Regular Civil Suit No.43/2012 may be placed before one Court since the subject matter in both the suits are same.
4. It will be open for the learned Trial Judge to consolidate the suit in light of issue involved in both the suits and also, it will be open for the parties to apply before the Trial Judge to consolidate the suits. The learned Trial Judge is directed to expedite hearing of both the suits as early as possible and shall decide both the suits as expeditiously as possible but not later than 18 months from the date of receipt of this order.
5. The learned Trial Judge shall not be influenced by the observations recorded by this Court herein above and in the impugned order and shall decide the matter afresh on its own merit as per the evidence that may be led before the learned Trial Court.
6. In view of this appeal, Appeal from Order stands disposed of. Notice discharged No costs.
ORDER IN CIVIL APPLICATION:-
In view of disposal of the appeal, Civil Application does not survive and accordingly, it stands disposed of.
10. It is submitted by Mr.Syed that the respondent nos. 4 and 5 have executed sale deeds in favour of present respondent nos.6 to 50 from and have made disclosures about sale deeds before the learned Trial Court. Accordingly, the petitioners have filed application-Page 13 of 20
HC-NIC Page 13 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT exhibit 64 seeking amendment in plaint for impleading respondent nos. 6 to 50 as party-defendants and have also sought amendment in valuation and prayer clause for challenging the sale deeds executed in favour of respondent nos.6-50. According to Mr.Syed, the title of respondent nos. 4 and 5 is defective and thus, he has submitted that respondent nos. 6-50 will be directly affected by the outcome of the suit as the said respondents derive their title from respondent nos. 4 and
5. Mr.Syed has pointed out the description of two schedules in the sale deeds and contested that the purchase of flats in "Union Residency" are being misled by respondent nos. 4 and 5 by describing that the flats and the undivided share in land where Union Residency is situated is clear and marketable. In view of the misleading description of clear and marketable title of flats and undivided share in land of Union Residency, the respondent nos. 6-50 would be necessary and proper parties even if their sale deeds are not challenged in the Special Civil Suit No. 383 of 2012.
11. On the other hand Mr.Shah has submitted that the principle of lis pendens applies to all transfers during the pendency of civil suits and the necessary disclosures about civil suits are made in the sale deeds of respondent nos.6-50. Hence, the respondent nos. 6-50 are put to notice of suit and would have to abide by the outcome of the suit. Mr.Shah has submitted that there is no necessity to join the respondent nos. 6-50 as party defendants.
Page 14 of 20HC-NIC Page 14 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT According to Mr.Shah, the applications are filed by the petitioners solely with a view to prolong the trial. The learned Trial Court has given cogent reason for rejecting the application-exhibit 64 and for not joining the proposed defendants. Hence, Mr.Shah has submitted that the Special Civil Application No.16033 of 2013 should be dismissed and the trial be expedited.
12. In view of the above submissions, this Court is of the view that though the dispute is between the plaintiffs and defendants of Special Civil Suit No. 383 of 2013, the respondent nos. 6-50 being the subsequent transferees of the flats constructed on suit land would be vitally affected parties. Furthermore, the description of two schedules provided in sale deed (pages 46-63) pointed out by Mr.Syed is clearly misleading as it gives an impression as if the land on which the flats namely, Union Residency are constructed is clear and marketable. It is specifically mentioned in the sale deed that the title of the undivided share in the land as well as the flats is clear and marketable, whereas in fact the petitioners are seriously disputing the title of respondent nos. 4 and 5 over the subject land. Though, the sale seed makes a reference to the pending litigations, but the clever drafting of the schedules gives an impression if there is no lis pending for the subject land, such would not be intention of this Court while passing order dated 31.07.2013 in Appeal from Order No.222 of 2013. Furthermore, the respondent nos.6- 50, though joined as party respondents and served with Page 15 of 20 HC-NIC Page 15 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT the notice of this Court, have not appeared or objected to the prayers made in petition. If the suit is to be decreed in favour of the petitioners, then the respondent nos. 6-50 would eventually be affected and might be called upon to vacate their premises. Hence, non-joinder of respondent nos. 6-50 would eventually lead to multiplicity of proceedings as the respondent nos. 6-50 would get an opportunity to individually challenge the decrees, if passed against them by filing appropriate proceedings. Hence, in order to avoid such multiplicity of proceedings it would be necessary to give the respondent nos. 6-50 an opportunity of being heard at this stage. Even the respondent nos. 4 and 5 have taken a stand in reply to Appeal from Order no.222 of 2013 to the effect that the present petitioners did not have the audacity to join the third parties in the suit after gathering knowledge about sale of flats by respondent nos. 4 and 5. The judgment reported in AIR 2005 SC 2819 relied upon by Mr.Shah has facts different from the factual situation of the present petitions, hence, the same is not applicable to the facts of this case. In that case, the Hon'ble Apex Court has specifically observed that the newly joined parties had no direct interest in specific performance of the contract and did not claim their title from the parties to the litigation. Whereas in the present case, the respondent nos.6-50 very much derive their title from respondent nos.4 and 5 who are parties to the litigation. The judgment reported in (2013) 5 SCC 397-Thomson Press (India) Limited Versus Nanank Builders and Investors Private Limited relied by Page 16 of 20 HC-NIC Page 16 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT Mr.Syed provides that Court can exercise its discretion to join the transferee pendente lite if it is found to be proper and necessary party. In the present case, as is narrated hereinabove, the respondent nos. 6 to 50 would be necessary and proper parties as they would be vitally affected by the outcome of the suits. Thus, this Court is of the opinion that the amendment application-exhibit 64 deserves to be granted and the respondent nos. 6-50 should be joined as party-defendants in the suit.
Special Civil Application No.16036 of 2013.
13. As regards the facts of Special Civil Application No.16036 of 2013, learned counsel Mr.Syed has submitted that the petitioners had filed an application-exhibit 83 in Special Civil Suit No.383 of 2012 seeking discovery and production of certain documents relied upon by the respondent nos.1 and 2 in Regular Civil Suit No.43 of 2003. Mr.Syed has submitted that as both the suits have been consolidated together, the issues have been framed only in Special Civil Suit No.383 of 2012. In Regular Civil Suit No.43 of 2003, it is the case of the plaintiff that judgment and decree passed in Special Civil Suit No.511 of 1997 has been nullified by executing certain writings. A reference to such writings comes in response dated 28.09.2001 (Annexure-B) addressed by advocate for respondent no.2 in response to public notice dated 18.09.2001 issued on behalf of the petitioners. Thus, the present petitioners addressed a notice dated 23.08.2013 Page 17 of 20 HC-NIC Page 17 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT to the respondent nos.1 and 2 for discovery and inspection of such writings executed in favour of plaintiffs of Regular Civil Suit No.43 of 2003. The respondent no.1 has replied to the said notice through his advocate vide reply dated 26.08.2013 and has denied production or discovery of such documents. As submitted by Mr.Syed, the present petitioners (plaintiffs in Special Civil Suit No.383 of 2012) are claiming their title over the suit property on the basis of judgment and decree passed in Special Civil Suit No.511 of 1997, whereas on the other hand, the plaintiffs of Regular Civil Suit No.43 of 2003 have made a claim that the judgment and decree passed in Special Civil Suit No.511 of 1997 has been nullified by executing certain writings. It would be incumbent upon the plaintiff of Special Civil Suit No.383 of 2012 to deal with such writings as and when the original documents are produced during the trial and exhibited.
14. Mr.Mehul S. Shah appearing for the respondent no.1 has submitted that the application-exhibit 83 is filed solely with an intention to delay the trial. Mr.Shah has read and heavily relied upon Order 11 Rule 12 of Code of Civil Procedure and fairly stated that if the documents of which production is sought are not being produced, then the Civil Procedure Code provides for drawing adverse inference. Considering such legal position, the respondent nos. 1 and 2 cannot be compelled to produce any documents.
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15. In the opinion of this Court, documents referred in application-exhibit 83 are necessary for adjudication of issues arising in the consolidate suits. The Court cannot compel a party to produce the documents. It appears that the Regular Civil Suit No. 43 of 2003 was filed first in point of time and the documents referred in application-exhibit 83 are in possession of plaintiff of Regular Civil Suit No.43 of 2003, hence, the burden to prove such document is upon the plaintiffs of Regular Civil Suit No.43 of 2003. Needless to state that the concerned party can produce the required documents at the time of his evidence and in the event the documents, which have the effect of nullifying the effect of judgment and decree passed in Special Civil Suit No.511/1997 are not produced, then the adverse inference is required to be drawn against the plaintiff of Regular Civil Suit No.43 of 2003 as submitted by Mr.Shah by relying upon Order 11 Rule 12 of Code of Civil Procedure.
16. In view of the above, this Court passes the following order.
ORDER The Special Civil Application No.16033/2013 is allowed. The order dated 5.10.2013 passed by the Court of Principal Senior Civil Judge, Surat below application- exhibit 64 in Special Civil Suit No.383 of 2012 is quashed. The said application-exhibit 64 is hereby allowed and the petitioners are permitted to carry out the amendment as prayed in application-exhibit 64 and furnish the amended Page 19 of 20 HC-NIC Page 19 of 20 Created On Fri Aug 12 03:12:08 IST 2016 C/SCA/16033/2013 CAV JUDGMENT plaint at the earliest. The Trial Court shall thereafter follow the procedure prescribed in Civil Procedure Code against the newly added defendants and proceed with the suit expeditiously. The Special Civil Application No.16036/2013 is dismissed in view of the observations made hereinabove. Parties to bear their own costs.
(Z.K.SAIYED, J.) dolly Page 20 of 20 HC-NIC Page 20 of 20 Created On Fri Aug 12 03:12:08 IST 2016