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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 2098 of 2003
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VYAS HARISHANKER ANANJI DEKIVADIA, SINCE DIED
THROUGH HIS WIDOW RAMAGAURI HARISHANKER VYAS
Versus
NATHALAL VELJIBHAI VYAS AND ORS.
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Appearance:
MR CL SONI for the Petitioner
MR RC KAKKAD for Respondent No. 1
MR ANSHIN H DESAI for Respondents Nos. 2-3
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CORAM : MISS JUSTICE R.M.DOSHIT
Date of Order: 03/05/2003
ORAL ORDER
The petitioner challenges the judgment and order
dated 20th February, 2003 passed by the learned Joint
Civil Judge (S.D.), Junagadh below Application Ex.114 in
Special Civil Suit No.10/2000.
The petitioner before this Court is the plaintiff
in the said suit.
The plaintiff has instituted the said suit for
declaration of title with respect to the disputed land
and for permanent injunction. Pending the said suit,
after the completion of the evidence of the plaintiff,
the plaintiff examined the concerned Talati-cum-Mantri.
In view of the evidence of the said witness, the
petitioner moved Application Ex.114 for production of
documents, namely, the revenue records. The said
application was contested by the respondents – defendants
and has been rejected under the impugned order dated 20th
February, 2003. Hence, the present petition.
Mr.Soni has submitted that the documents in
question are the public documents and the certified copy
of such documents can be received in evidence without the
proof thereof. The petitioner had no knowledge about the
existence of the said documents until the
Talati-cum-Mantri was examined and he gave his evidence.
Besides, the documents can be produced at any stage of
the trial. The learned Judge has erred in rejecting the
said application on the ground of delay and latches.
Mr.Soni has relied upon Order 7 Rule 14 CPC and Order 11
Rule 14 CPC. He has also relied upon the judgment of the
Hon’ble Supreme Court in the matter of MADAMANCHI RAMAPPA
AND ANOTHER V/S. MUTHALURU BOJJAPPA [A.I.R. 1963 S.C.
1633].
The learned advocate Mr.Kakkad has contested the
petition. He has supported the impugned order and has
submitted that the petitioner having examined himself and
his evidence having been closed, the petitioner can not
now be permitted to produce further documents. The
petitioner has missed the opportunity to produce the said
documents at the relevant time. If he is now permitted
to produce the documents as prayed for, he will have to
be recalled for further examination-in-chief and the
respondent shall have no opportunity to cross-examine the
petitioner. He has relied upon Order 13 Rule 1 CPC and
the judgments in the matters of M/S.NARANDAS ANANDJI V/S.
PATEL HARILAL VELJI [1997(3) Current Civil Cases 229
(GUJ.)] and of SHRI TARLOCHAN SINGH AND ANR. V/S. SHRI
JASPAL SINGH AND ANR. [1974 Rent Control Reporter 342].
Mr.Anshin Desai has also contested the petition
and has relied upon Order 13 Rule 1 CPC. He has
submitted that once the issues are settled no further
documents can be produced on the records of the matter.
He has also relied upon the judgment of the Hon’ble
Supreme Court in the matter of MOHD.YUNUS V/S.
MOHD.MUSTAQIM AND OTHERS [A.I.R. 1984 S.C. 38] and has
submitted that this Court, in exercise of supervisory
power under Article 227 of the Constitution of India,
shall not interfere with the impugned order. He has also
relied upon the judgments in the matters of G.S.R.T.C.
V/S. SARFUDDIN K.SAIYED [2002(2) G.L.H. 359] and of
ESSEN DEINKI V/S. RAJIV KUMAR [(2002) 8 S.C.C. 400].
In the matter of Madamanchi Ramappa and Anr.
(supra), Mr.Soni has relied upon paragraph 9 of the
judgment and particularly the observation that “…The
document in question being a certified copy of a public
document need not have been proved by calling a witness.”
In the matter of M/s.Narandas Anandji (supra),
this Court was considering a matter where the lower Court
having allowed the production of documents refused the
permission to issue witness summons. The Court held that
“…Once a document is permitted to be produced at a
later stage, the parties are relegated to the position as
if the document is produced at the initial stage as
required under law. If this is so, the parties cannot be
deprived of their valuable rights of proving such
document by oral evidence. In this case, as the evidence
of plaintiff is already over consequently, the document
can be proved only by recalling the witness and leading
additional evidence. Of course, this right is subject to
one restriction that party recalling the witness cannot
be permitted to introduce new case with a view to fill up
lacuna. On witness being recalled the evidence to be led
has to be restricted to the relevancy and proof of such
document produced at later stage.
The ultimate aim of courts of law is to do
substantial justice to the parties and procedural rules
should not come in way. Procedure is always meant for
discipline and systematic proceeding.”
In my view this judgment shall not lend support
to the respondents. On the contrary, this judgment
envisages production of document at a later stage and of
recalling the witness for leading additional evidence
with respect to the relevancy and proof of such document.
What is paramount is, to do justice to the parties and
not the procedure.
In the matter of Shri Tarlochan Singh and Anr.
(supra), the Hon’ble Delhi High Court upheld the order of
the trial Court in not allowing the production of rent
receipts at a later stage of proceedings. Nevertheless,
the Court did observe that “…It is true that there is
no absolute bar for a party to produce documents not
relied upon earlier and the court has power to permit the
parties to produce the documents even at a later stage,
if the court is satisfied that they could not be filed
earlier.”
The above referred judgments in the matters of
Mohd.Yunus v/s. Mohd.Mustaqim and Ors.; of G.S.R.T.C.
v/s. Sarfuddin K.Saiyed; and of Essen Deinki v/s. Rajiv
Kumar all deal with the jurisdiction of the High Court
under Article 227 of the Constitution of India. It is
well settled that the supervisory jurisdiction of the
High Court under Article 227 of the Constitution of India
does not vest unlimited authority or prerogative in High
Court to correct all errors. The said power can be
exercised only if the Courts commit wrong which amount to
grave dereliction of duty resulting into miscarriage of
justice.
The present is the case where the impugned order
of the Court below is, in my view, erroneous and has
resulted into miscarriage of justice. The learned Judge
has held that once the plaintiff had given the evidence
and his cross-examination was over, no further documents
can be permitted to be produced. If such documents are
produced, the same cannot be exhibited and thus cannot be
received in evidence. If the documents cannot be
received in evidence, there is no point in allowing the
same to be produced. It appears that the learned Judge
has overlooked that if the documents in question are
public documents, as claimed by the petitioner plaintiff,
the same can be received in evidence without the proof
thereof. Or in case where the relevancy and the proof of
the documents in question are required to be established,
the concerned witness can be recalled for this limited
purpose. Hence, if the interest of justice so requires,
the documents can be permitted to be produced at a later
stage also.
In above view of the matter, the impugned
judgment and order passed by the learned Joint Civil
Judge (S.D.), Junagadh below Application Ex.114 in
Special Civil Suit No.10/2000 is quashed and set aside.
The Application Ex.114 is allowed. The petitioner –
plaintiff is permitted to produce the documents in
question.
The learned trial Judge shall decide whether the
said documents are public documents as claimed by the
petitioner – plaintiff and can be received in evidence
without the proof thereof or whether the relevancy and
the proof of the documents are required to be established
or not. If so, the trial Court shall permit the recall of
the concerned witness for this limited purpose.
The petition is allowed in the above terms. The
parties shall bear their own costs.
( Ms. R.M. Doshit, J. )
/sakkaf