Gujarat High Court
Manharben Mahendrakumar Dhandhal & 3 vs Preetbhai Valegbhai Dhandhal on 17 February, 2016
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/2492/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2492 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA
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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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MANHARBEN MAHENDRAKUMAR DHANDHAL & 3....Petitioner(s)
Versus
PREETBHAI VALEGBHAI DHANDHAL....Respondent(s)
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Appearance:
MR MEHUL S SHAH, ADVOCATE for the Petitioner(s) No. 1 - 4
MR MIHIR VAKHARIYA, CAVEATOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 17/02/2016
ORAL JUDGMENT
1. Rule. Learned advocate Mr. Rahul Sanghavi for learned advocate Mr. Vakhariya waives service of notice of rule on behalf of the respondent.
2. With the consent of learned advocates appearing on Page 1 of 4 HC-NIC Page 1 of 4 Created On Thu Feb 18 03:11:35 IST 2016 C/SCA/2492/2016 JUDGMENT behalf of the parties, the matter is taken up for final disposal today.
3. By way of this petition under Article 227 of the Constitution of India, the petitioners challenge order passed below Exh.46, whereby the learned trial Judge handed over the custody of the original documents produced at Mark 49/1 to the investigating officer, Crime Branch, Junagadh for its examination through FSL, Ahmedabad.
4. Having heard the submissions made at bar and considering the impugned order, it appears that the learned trial Judge has handed over the custody of the original documents to the investigating officer in respect to the investigation on the basis of the complaint which is yet to be registered as FIR. Not only that the evidence of the respondent - plaintiff is in process and when the matter is before the trial Court for recording of evidence, there was no necessity on the part of the Court to pass impugned order to hand over the custody of the original documents on the basis of the complaint lodged by the respondent - plaintiff. It is stated at bar that the impugned order was stayed till 15.2.2016 and on 16.2.2016, the learned trial Judge has handed over the custody of the original documents to the investigating officer.
5. In Court's considered opinion, the recourse adopted by the learned trial Judge at the stage of recording of evidence cannot be permissible, more so assisting the investigating officer. In fact, the learned trial Judge ought to have kept the application preferred by the investigating officer Exh.46 Page 2 of 4 HC-NIC Page 2 of 4 Created On Thu Feb 18 03:11:35 IST 2016 C/SCA/2492/2016 JUDGMENT pending and ought to have completed the recording of evidence of both the sides and more so, necessary expert opinion is already on record vide Mark 37/1. Under the circumstances, the learned trial Judge has committed legal error in passing the impugned order and therefore, the same requires to be quashed and set aside.
6. In the result, the petition stands allowed and the impugned order dated 7.1.2016 passed by the learned Principal Civil Judge (Ad hoc), Medarada below application Exh.46 in Regular Civil Suit No.20 of 2013 is hereby quashed and set aside with a direction to the concerned investigating officer, Crime Branch, Junagadh to return the original documents to the Court forthwith and the learned trial Judge is directed to proceed with further hearing of the suit and shall complete the recording of evidence as expeditiously as possible, but not later than three months from the date of receipt of the order of this Court. The parties to the proceedings will be at liberty to raise all contentions available under law.
7. It is made clear that the investigating officer is at liberty to move such application after conclusion of evidence by the learned trial Judge. As and when such an application is made by the concerned investigating officer, the learned trial Judge shall consider the same in accordance with law uninfluenced by the observations recorded in the impugned order so also in the present order.
8. Rule is made absolute to the aforesaid extent. Direct service permitted.
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