Gujarat High Court
M/S Gujarat State Financial Services ... vs M/S Hytaisun Magnetics Ltd on 8 September, 2025
NEUTRAL CITATION
C/SCA/16430/2024 ORDER DATED: 08/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16430 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 16694 of 2024
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M/S GUJARAT STATE FINANCIAL SERVICES LTD.
Versus
M/S HYTAISUN MAGNETICS LTD.
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Appearance:
MR NV GANDHI(1693) for the Petitioner(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 08/09/2025
COMMON ORAL ORDER
1. Learned Advocate Mr. N. V. Gandhi for the petitioner.
Though served, none appears for the respondent.
2. The issue germane in both these writ applications having filed under Article 227 of the Constitution of India is common, thereby, taken up for hearing together and decided by way of this common judgment/order.
3. The parties will be referred as per their original position in the suit.
4. To understand the facts and the issue germane, the short facts of Special Civil Application No. 16430/2024 are considered, as under:
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NEUTRAL CITATION C/SCA/16430/2024 ORDER DATED: 08/09/2025 undefined 4.1. The petitioner herein is the original plaintiff, who filed Summary Suit No. 3885 of 1998 against the respondent. It is undisputed fact that the plaintiff is a State Government-
owned company, filed the suit through its authorized officer. 4.2. When the suit ripe for evidence, at that point of time, when oral evidence in the form of examination-in-chief was filed before the Trial Court, impugned application was also filed below Exhibit 35 by the plaintiff, whereby, requested the Trial Court to treat documentary evidence produced at Mark 3/5 to 3/42 as secondary evidence.
4.3. According to the case of the plaintiff, aforesaid documents whose photocopies are produced at Mark 3/5 to 3/42 were misplaced in the office of plaintiff, but the officer who instituted/filed the suit and so also filed an oral evidence/affidavit of examination-in-chief seen its original. Thus, requested to treat those documents as Secondary Evidence.
4.4. The defendant has objected the impugned application, having filed its reply, wherein, principle contention raised that the impugned application is not maintainable, having been filed after submitting oral evidence. It is further objected that without seeking leave of the Court, the plaintiff could not have referred all these documents sought to be treated as Page 2 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 23:46:42 IST 2025 NEUTRAL CITATION C/SCA/16430/2024 ORDER DATED: 08/09/2025 undefined secondary evidence in its oral evidence. The plaintiff, having failed to show any due diligence of its search of documents in question, the impugned application bereft of any material particulars requires to be rejected.
4.5. After hearing the parties, the Trial Court vide its order dated 16th October 2024, rejected the application. Similar is the case in second matter. Hence, the present writ applications.
5. Learned Advocate Mr. Gandhi would submit that the Trial Court has committed a grave error of law, inasmuch as jurisdictional error, having not granted the impugned application. It is submitted that the documents which are sought to be treated as secondary evidence were misplaced in the office of the plaintiff, which is a Government company. It is further submitted that there is no malafide on the part of the plaintiff not to present original documentary evidence, but the reasons set out in the application, it was not available for its production, thus, not able to submit it.
6. Learned Advocate Mr. Gandhi would further submit that the case of the plaintiff would squarely fall under sub-section (c) & (e) of Section-65 of the Evidence Act, 1872 (hereinafter referred to as "Act 1872"), whereby, having declared before the Trial Court that the original documents are misplaced, it ought to have been treated as secondary evidence. Page 3 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 23:46:42 IST 2025
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7. Learned Advocate Mr. Gandhi would further submit that the Trial Court has taken very hyper-technical approach while deciding the impugned application, which resulted into miscarriage of justice. It is submitted that despite drawing attention of several authorities of the Hon'ble Apex Court and so also the fact that the plaintiff is a Government company, which is run through several officers/staffs, unable to produce original documents on record and in that situation, the Trial Court requires to accept the explanation put forward by the plaintiff in the interest of justice.
8. Learned Mr. Gandhi would further submit that the plaintiff being a State Government-owned company, would fall under the Right to Information Act, 2005 (hereinafter referred to as "Act 2005") and if such documents sought for are called upon to be produced or to be received by any party, the plaintiff would under solemn obligation, as per the provisions of the Act 2005, requires to deliver such documents, then, the same would have been otherwise admissible in evidence as per law. It is respectfully submitted that no harm/prejudice would cause to the defendant if the documents sought for to be treated as secondary evidence, inasmuch as the plaintiff would be subjected to cross-examination by the defendant.
9. Making the above submissions, learned Advocate Mr. Gandhi Page 4 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 23:46:42 IST 2025 NEUTRAL CITATION C/SCA/16430/2024 ORDER DATED: 08/09/2025 undefined would request this Court to allow the present writ applications.
10. The facts which are narrated hereinabove are not in dispute.
The summary suit came to be filed by the plaintiff happens to be Government-owned company, which would fall under the Act 2005. The documents which are sought to be produced on record are photocopies of its originals, lost by the plaintiff as stated in the impugned application. It is not the case of the defendant having not objected the contents of the impugned application, but its objection in regards to the timing of submitting the impugned application i.e. filed after filing oral evidence, albeit no cross-examination yet not commence of witness of plaintiff.
11. It is required to be noted that in the impugned application, it is the specific case of the plaintiff that the documents sought to be treated as secondary evidence were lost and not available with it. Nonetheless, it has been so specifically stated in the impugned application that one Vasant Kodarlal Patel, who was officer of the plaintiff-Company, saw the original documents before filing suit, and now, sought to be treated as secondary evidence, because of the fact that its photocopies are available on record. The plaintiff having lost the documents produced at Mark 3/5 to 3/42 and in that view Page 5 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 23:46:42 IST 2025 NEUTRAL CITATION C/SCA/16430/2024 ORDER DATED: 08/09/2025 undefined of the matter, requested the Trial Court to treat it as secondary evidence. The aforesaid fact appears to be remained uncontroverted at the end of defendant.
12. It is true that as per the settled law, document must be proved by primary evidence unless a contingency so arises and established on record as provided under Section-65 of Act 1872 whereby, secondary evidence can be given. The bare reading of Section-65 (c) & (e) of the Act, 1872, upon which reliance placed by learned Advocate Mr. Gandhi, reads as under:
"65. Cases in which secondary evidence relating to documents may be given :-
-Secondary evidence may be given of the existence, condition, or contents of a document in the following cases;
(a) ......
(b) ......
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents, for any other reason not arising from his own default or neglect, produce it in reasonable time.
(e) when the original is public document within the meaning of Section 74;
74. Public documents.--
The following documents are public documents:
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NEUTRAL CITATION C/SCA/16430/2024 ORDER DATED: 08/09/2025 undefined (1) Documents forming the acts, or records of the acts --
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, 3 [of any part of India or of the Commonwealth], or of a foreign country; (2) Public records kept 4 [in any State] of private documents.
76. Certified copies of public documents.-- Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees there for, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
Explanation.--Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
77. Proof of documents by production of certified copies.--
Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies."
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NEUTRAL CITATION C/SCA/16430/2024 ORDER DATED: 08/09/2025 undefined
13. The harmonious reading of aforesaid provisions of Act, 1882 read with Act, 2005 would lead to one conclusion that documents sought to be treated as secondary evidence can easily be considered as secondary evidence.
14. As such, in a case where there is an original document lost by the party and the reasons so assigned are not creating any doubt in the mind of the Court, inasmuch as there is no malafide intention and/or any other intention, whereby, it cannot be gainsaid that the party deliberately withheld the original document. In such type of cases, according to my view, such documents can be allowed to be treated as secondary evidence.
15. Further, it is also not out of place to mention here that the plaintiff is a Government-owned company, having so observed that its subjected to the provisions of the Act 2005, and in that view of the matter also, any document sought from such Government-owned company under the RTI Act would be considered as a public document and can be admitted/received in evidence as per the provisions of the Act 1872. [See : Section-74, 76 & 77 read with Section-65(e) of Act 1872].
16. In view of foregoing reasons, this Court is of the view that impugned orders suffer from jurisdictional error and Page 8 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 23:46:42 IST 2025 NEUTRAL CITATION C/SCA/16430/2024 ORDER DATED: 08/09/2025 undefined approach of the Trial Court is just opposite to what is settled legal position of law thus, requires to be interfered by this Court while exercising its supervisory jurisdiction under Article 227 of the Constitution of India. It needs to interfere with impugned order as its by now well settled that in a case of jurisdictional error committed by Trial Court and so also to keep the Court within its bound, such power vested with this Court requires to be exercised for ends of justice. [See - Waryam Singhvs vs. Amarnath,, reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick alias Bhudeb Mallick and Another vs. Ghoshal and Others, reported in 2025 SCC OnLine SC 360 (para 53 to 58)]
17. The upshot of the aforesaid observations, discussions, and reasons, leads to only one conclusion that the impugned order dated 16th October 2024, passed by Special Civil Court No. 19, City Civil Court, Ahmedabad City, below Exhibit 35 in Civil Suit No. 3885 of 1998, requires to be quashed and set aside which is hereby quashed and set aside. Accordingly, the impugned application so filed below Exhibit 35 in the aforesaid suit is hereby allowed. The documents which are produced at Mark 3/5 to 3/42 by the plaintiff in the aforesaid suit will be treated as secondary evidence as prayed in the application.
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NEUTRAL CITATION C/SCA/16430/2024 ORDER DATED: 08/09/2025 undefined
18. Likewise, the impugned order dated 15th October 2024, passed by this Special Civil Court No. 19, City Civil Court, Ahmedabad City, below Exhibit 31 in Civil Suit No. 3883 of 1998, is also hereby quashed and set aside. Accordingly, the impugned application filed below Exhibit 31 in the aforesaid suit is hereby allowed. The documents which are sought to be produced at Mark 3/1 to 3/32 by the plaintiff in the aforesaid suit will be treated as secondary evidence as prayed in the application.
19. The trial Court shall now proceed with the suit in accordance with law and decide lis between the parties without being influenced by any of the aforesaid observations so made by this Court.
20. In view of forgoing conclusion, both these writ applications are hereby partly allowed to the aforesaid extent. No order as to costs.
21. Direct service is permitted.
(MAULIK J.SHELAT,J) Nilesh Page 10 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 23:46:42 IST 2025