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SCA/3156/2009 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3156 of 2009
=====================================
VINODKUMAR
MANEKLAL SHAH & 1 - Petitioner(s)
Versus
THAKERSHI
BABULAL & CO & 13 - Respondent(s)
=====================================
Appearance
:
MR NV GANDHI for Petitioner(s)
: 1 - 2.
NOTICE SERVED for Respondent(s) : 1 - 2, 2.2.2,2.2.3 - 3,
3.2.2, 3.2.3,3.2.4 - 4, 6, 8, 10, 12, 14,
MR SUNIT S SHAH for
Respondent(s) : 1, 3.2.1, 3.2.2,3.2.3 - 4, 6, 10, 12, 14,
None for
Respondent(s) : 2 - 3, 5, 7, 11, 13,
NOTICE SERVED BY DS for
Respondent(s) : 2.2.1, 2.2.2, 2.2.3, 7.2.1,7.2.2
- for
Respondent(s) : 0.0.0,0.0.0
- for Respondent(s) : 0.0.0
=====================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 04/03/2010
ORAL
ORDER
1.0 Vinodkumar
Maneklal Shah with one Mr. Kamleshkumar Maneklal Shah original
appellants are before this Court being aggrieved by an order passed
by the Appellate Bench of Small Cause Court below exh. 29 in Civil
Appeal No. 178 of 2003. This Court, while hearing the matter on 2nd
April 2009 observed as under:
2. Without
entering into merits and substance of the petition, considering the
scope of settlement between the parties, the Court is inclined to
issue notice. Hence, notice, returnable on 06th
May 2009.
3. It
is also necessary to note at this stage that Shri N.V.Gandhi has
stated that the petitioners ultimately would press the present
petition at the time of admission hearing and/or disposal of the
petition qua the documents discussed by the learned lower Court at
Sr.Nos.4 and 5 in the order under challenge. (emphasis
supplied)
2.0 Learned
Advocate Mr. Gandhi invited attention of the Court to Para 4 and 5 of
the impugned order. Having perused the same, the Court finds that
the Appellate Bench has not committed any error which warrants
interference at the hands of this Court. The Appellate Bench
was conscious while considering the aspect of allowing the production
of additional evidence qua documents mentioned at serious nos. 4 and
5 and therefore, it observed as under:
….It
also transpires from this affidavit that aforesaid suit was filed by
Shri Manubhai Parsotamdas Gandhi as landlord against tenants, but it
is not clear as to whether disputed premises in that suit is the same
premises which is suit premises of present H.R.P. Suit No. 20/92,
decree of which is appealed in this appeal. On the contrary, on
reading paragraph-39 of cross-examination of this witness at page-15,
it is found that place of business of firm Rashmikant Mahipatrai &
Company (defendant no. 14 of H.R.P. Suit No. 20/92) is M.C. No.
1464/1/4. While it is crystal clear that the suit premises bears
M.C. No.1141, survey no. 194 of Juna Madhupura, Dariyapur-Kazipur
Ward, Ahmedabad. This affidavit of the witness was filed in said
H.R.P. Suit No. 901/98 on 24st August 2005
much after filing of present Civil Appeal on 10.12.2003. So these
documents were at all not in existence and therefore, it cannot be
said that it was not within the knowledge or could not after exercise
of due diligence, be produced by the appellant at the time when the
decree appealed against, was passed. Therefore, the appellant’s
prayed to produce these documents cannot be acceded to.
2.1 Similarly,
while dealing with document at serial no. 5, the Court has in Para 5
observed as under:
5. So
far as the document at serial no. 5 of the list enclosed with present
application is concerned, it is information given by the Deputy
Sales-tax Commissioner on 22.11.2006 to present appellant pertaining
to previous sales-tax number of M/s. Rashmikant Mahipatrai & Co.
It is also stated therein thatafter 1.7.2002, said Company has not
filed any application for sales-tax number or has not filed necessary
forms for the purpose of Vat. It is also stated therein that said
Office had no information regarding dissolution or closure of the
said firm. Therefore, according to us, this document is
also not necessary to enable the Appellate Bench to pronounce
judgment in this matter. (emphasis supplied)
3.0 This
Court, having perused the same, is of the opinion that the Appellate
Bench was right in rejecting the exh. 29. Hence, the petition is
dismissed.
[
Ravi R. Tripathi, J. ]
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