Gujarat High Court
Ramaben Jayantibahi Zala & 3 vs Kiritbhai Dahyabhai Zala on 24 February, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/1790/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1790 of 2012
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RAMABEN JAYANTIBAHI ZALA & 3....Petitioner(s)
Versus
KIRITBHAI DAHYABHAI ZALA....Respondent(s)
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Appearance:
MR PRADEEP PATEL, ADVOCATE for the Petitioner(s) No. 1 - 4
MR SIDDHARTHA SAMAL, ADVOCATE for the Respondent(s) No. 1
MRS NISHA M PARIKH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 24/02/2014
ORAL ORDER
1. Heard Mr. Patel, learned advocate for the petitioners and Mrs. Parikh, learned advocate for the respondent.
2. In present petition the petitioners have prayed, inter alia, that:-
"15(B) Be pleased to issue a writ of certiorari or any other appropriate writ, orders, or direction quashing and setting aside the impugned order dated 14.11.2011 (Annexure A collectively) passed by the Ld. 5th Additional Senior Civil Judge and Additional C.J.M., Anand, in Civil suit No. 32/98, after holding the same as contrary to law and evidence on record and be pleased to set aside the evidence in the form of questionnaire put to petitioner No.1 on 9.11.2011 and further be pleased to allow the application dated 9.11.2011 (Annexure A collectively), in the interest of justice."
Page 1 C/SCA/1790/2012 ORDER
3. So far as relevant facts are concerned, it has emerged from the record and submissions made by learned advocate for the petitioners and respondent that the petitioner No.1 to 4 have claimed that they are tenant of premises (shop) bearing Municipal Census No. 10/10/129 situate at Anand.
3.1 It is also claimed that in the suit premises i.e. shop in question the petitioners have been doing business of tailoring since many years. 3.2 It is claimed that essentially father of the petitioner Nos. 2 to 4 (i.e. husband of petitioner No.1) had taken the suit premises on rent to start and run business activity of tailoring shop and after his death his wife i.e. petitioner No.1 and his children i.e. petitioner Nos. 2 to 4 also became tenant of the suit premises.
3.3 The petitioners have further alleged that somewhere in September 1998 one Shri Govindbhai Page 2 C/SCA/1790/2012 ORDER Zala and certain other persons tried to forcibly enter into the suit premises and remove the belongings of the petitioners so as to disturb and take away possession of the suit premises. 3.4 It is also claimed that in this factual background, Civil Suit being Regular Civil Suit No. 338 of 1998 came to be filed in the Court of learned Civil Judge (Senior Division) Anand against said Mr. Govindbhai Zala and other with prayer for declaration and injunction. 3.5 The defendant filed composite reply i.e. written statement in response to the plaint and reply to the injunction application, in the said suit being RCS No. 338 of 1998.
3.6 It is also claimed that in the said suit proceedings issues are framed and trial has begun together.
3.7 The petitioners have further claimed that the respondent in present petition reside in separate Page 3 C/SCA/1790/2012 ORDER residential premises namely Block No.55, Purshottamnagar, Bakrol, District - Anand and that the respondent in present petition had forcibly entered into residential premises where petitioners' father was staying and subsequently the respondent of present petition filed suit being RCS No. 32 of 1998 against father of the petitioner Nos. 2 to 4 and husband of petitioner No.1 seeking declaration and permanent injunction.
3.8 According to the petitioners the said suit has been filed with reference to the residential premises where father of the petitioner Nos. 2 to 4 used to stay before his death.
3.9 It appears that upon death of the father of the petitioner Nos. 2 to 4 the petitioners came to be impleaded as defendants in the RCS No. 32 of 1998 filed by present respondent. 3.10 It also appears that in the said RCS No. 32 of 1998 father of the present petitioner Nos. 2
Page 4 C/SCA/1790/2012 ORDER to 4 had filed composite reply i.e. written statement in response to the plaint and reply to the injunction application.
3.11 It also appears that in the said RCS No. 32 of 1998 the father of the petitioner Nos. 2 to 4 also filed counter claim.
3.12 In the said RCS No. 32 of 1998 also issues are framed and trial has begun.
3.13 It appears that during the stage of evidence, particularly when the deposition (oral evidence) of present petitioner No. 1 was being recorded in the proceedings related to RCS No. 32 of 1998, learned advocate for the plaintiff of said RCS No. 32 of 1998 put certain questions during the cross examination of present petitioner No.1 which, according to the petitioners, pertained to and related to the shop premises i.e. suit property in RCS No. 338 of 1998.
Page 5 C/SCA/1790/2012 ORDER 3.14 It appears that when the petitioner No.1 was subjected to questions related to the suit property of RCS No. 338 of 1998 the advocate of petitioner No.1 raised objection against the questions being put to the petitioner No.1 during her cross examination and claimed that question which may not be relevant and not connected to the subject matter of RCS No. 32 of 1998 may not be allowed to be put to the said witness and that may not from part of the record.
3.15 The petitioners have claimed that since oral request was not accepted, learned advocate for the petitioners submitted an application dated 9.11.2011 raising objection on the ground that the questions being put to the witness / petitioner No.1 in cross examination were beyond the pleadings.
3.16 It is also claimed that vide order dated 14.11.2011 learned trial Court rejected said application.
Page 6 C/SCA/1790/2012 ORDER 3.17 The petitioner is aggrieved by the said order, hence, present petition.
4. Learned advocate for the petitioners submitted that subject matter of the two suits i.e. RCS No. 32 of 1998 (which is filed by present respondent) and the suit being RCS No. 338 of 1998 (which is originally filed by father of petitioner Nos. 1 to 4) is separate inasmuch as the RCS No. 32 of 1998 relates to residential premises while the subject matter of RCS No. 338 of 1998 is shop premises.
4.1 He also submitted that the plaintiffs in both suits are different and cause of action and cause for dispute are also different and that therefore during the proceedings of RCS No. 32 of 1998 questions related to the subject mater of RCS No. 338 of 1998 cannot be allowed, however, learned trial Court failed to appreciate the said request and committed serious error in rejecting the said application dated 9.11.2011.
Page 7 C/SCA/1790/2012 ORDER 4.2 learned advocate for the respondent has opposed the petition.
4.3 Learned advocate for the respondent submitted that learned trial Court has recorded sufficient reasons for rejecting the application dated 9.11.2011 and the said reasons are neither arbitrary nor perverse and therefore present petition may not be entertained.
5. I have heard learned advocates for the contesting parties and considered the material on record.
6. It is not in dispute that plaintiffs in the two suits i.e. RCS No. 32 of 1998 and RCS No. 338 of 1998 are different.
6.1 It is also not in dispute that the subject matter of the two suits are different. 6.2 More important and relevant fact is that any of the parties in the said two suits have not Page 8 C/SCA/1790/2012 ORDER made any application to combine / consolidate the proceedings of the suits and / or to hear the said suits together and / or to record common evidence for both suits.
6.3 It is also not in dispute that both the suits are being tried separately and separate evidence is being recorded in both cases.
6.4 From the facts and the details mentioned in the petition it also appears that the subject matter and cause of dispute in both the suits are different.
6.5 The petitioners have placed on record copy of the cross examination of petitioner No.1 recorded in the proceedings of RCS No. 32 of 2008. 6.6 During the hearing learned advocate for the petitioners submitted that since objections against certain question were raised by learned advocate for the petitioner No.1, two questions out of various questions against which objections Page 9 C/SCA/1790/2012 ORDER were raised, were separately recorded by learned trial Court in form of question and answer and that specific and express objection with reference to the said question and more particularly 2nd and 3rd question was raised on the ground that said questions relate to subject matter of another suit and that therefore the witness may not be compelled to reply the said answer and answer may not be recorded as part of deposition.
6.7 The application dated 9.11.2011 to that effect was submitted which came to be disallowed by learned trial Court vide order dated 14.11.2011.
6.8 On examination of the said order dated 14.11.2011 it is noticed that on one had learned trial Court has observed in the said order that relevance of the question and the issues recorded to its evidentiary / probative value cannot be considered at the stage of final hearing, however Page 10 C/SCA/1790/2012 ORDER in the same breath learned trial court has also observed and recorded that the objection raised by the defendant (i.e. present petitioners) with reference to the said question is rejected. 6.9 Learned trial Court could not have recorded such contradictory decisions and observations in the same order. So far as first part of the observation and decision to the effect that the relevance of the questions and the evidentiary value thereof can be examined and decided at the stage of final hearing is proper and just and may not be disputed and any objection against such observation and decision cannot be entertained at this stage in present petition.
6.10 However, when learned trial Court, even after making such observation, proceeds further and records that the objection in the application are not entertained and rejected then such observation would render the earlier observation Page 11 C/SCA/1790/2012 ORDER nugatory and ineffective inasmuch as the effect of such observation in the order would that the earlier observation and decision recorded in the same order would stand nullified and at latter stage it may be contended by the plaintiff of RCA No. 32 of 1998 that the objection was rejected and that therefore without going in to the issues about relevance of the question, said question and answer should be taken into consideration for deciding RCS No. 32 of 1998.
6.11 Learned Counsel for the respondent has not been able to dispute or refute the fact that the said question Nos. 2 and 3 in the cross examination actually relate to the subject matter of RCS No. 338 of 1998.
6.12 She has also not been able to dispute or refute the fact that the subject matter of and cause of dispute in two suits are different.
7. In background of such facts and circumstances, learned trial Court ought to have Page 12 C/SCA/1790/2012 ORDER bracketed the said question and answer with observation that the relevance and evidentiary value thereof would be considered at the time of final hearing instead of recording that the objection is rejected.
8. In this view of the matter, it appears that present petition can be disposed of with below mentioned order / observation:-
In light of the above mentioned facts and circumstances, more particularly in light of the fact that on plain reading of the impugned order dated 19.11.2011, it has emerged that two contradictory observations are recorded by learned trial Court in the order dated 14.11.2011, the said order dated 14.11.2011 is set aside and the matter is remanded to the learned trail Court for fresh decision in connection with the application dated 9.11.2011 submitted by present petitioners.
It is clarified that it is only for the aforesaid limited purpose and only for the above Page 13 C/SCA/1790/2012 ORDER mentioned limited ground / reason that the order dated 14.11.2011 is set aside and the matter is remanded.
It will not be open to the petitioners to raise any other objection i.e. any objections with reference to the objections against question Nos. 2 and 3 other than the objection which are recorded in part of the cross examination which is placed on record.
After considering the petitioners' objections that the question relate to subject matter of another suit, the learned trial Court would pass appropriate fresh order as regards the petitioners' objection against the said two questions. The learned trial Court shall independently consider the application and pass fresh order on merits without being influenced by any other order / observations.
With the aforesaid clarification the petition stands disposed of accordingly.
(K.M.THAKER, J.) Suresh* Page 14