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2021 DIGILAW 805 (GUJ)

Champalal Gulabji v. Manoharsinh Dilubha Vaghela

2021-09-09

B.N.KARIA

body2021
ORDER : 1. Rule. Mr. Amrish K. Pandya, learned advocate waives service of notice for and on behalf of respondent no. 1. 2. Though notice was served upon respondent no. 2, nobody has appeared on behalf of respondent no. 2. 3. By preferring this petition under Articles 16 and 19 of the Constitution of India, the petitioners have challenged the order dated 11.02.2021 passed by the learned Principal Senior Civil Judge, Sanand below Exh.158 in Special Civil Suit No. 549 of 2017 requesting to permit him to examine the witness. 4. Heard Mr. Devang Lathigara, learned advocate for the petitioners and Mr. Amrish K. Pandya, learned advocate for respondent no. 1. 5. It was submitted by learned advocate for the petitioners that Special Civil Suit No. 549 of 2017 was filed by the plaintiff-respondent no. 1 herein before the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural) for specific performance, declaration and permanent injunction. It was further submitted that the petitioners are the original defendants and have resisted the suit by filing a detailed written statement at Exh.16 on 20.04.2014 containing that they have not executed any such power of attorney in favour of the defendant no. 2 or anybody. That entire documents of power of attorney relied upon by the plaintiff were bogus and fraudulent. It was further submitted that during the course of proceedings, the petitioners submitted two applications vide Exhs.151 and 152 under Order 16 Rule 1 of the Civil Procedure Code 1908 (hereinafter referred to as “the CPC” for short) for issuance of summons and both the applications preferred by the petitioners were rejected vide order dated 01.02.2021 holding that list of the witnesses was not produced by the petitioners as well as the permission of the Court was not obtained as required Order 16 Rule 3 of the CPC. It was further submitted that after the said order, another application Exh.158 was submitted by the petitioners giving detailed reasons why the witnesses were required to be examined and power of attorney produced on record was not original as it was not registered in the record of Notary and the said fact was proved by the police inquiry in the criminal complaint lodged against the respondent no. 1. It was further submitted in the application Exh.158 that the power of attorney was executed on 30.03.2009 and Survey No. 1044 was formed in the year 2012. 1. It was further submitted in the application Exh.158 that the power of attorney was executed on 30.03.2009 and Survey No. 1044 was formed in the year 2012. That the permission was sought for by the petitioners for examination of the witnesses and the learned Judge, vide order dated 11.02.2021, rejected the application holding that the earlier two applications at Exh.151 and 152 were rejected and the present application was similar, and therefore, earlier order cannot be reviewed. It was further submitted that the impugned order passed by the Court-below is contrary to the provisions of Order 16, Rules 1 and 3 of the CPC as there was no question of reviewing the order previously passed below Exhs.151 and 152. That the earlier applications were for issuance of summons while the present application was for grant of permission to examine the witness. That the learned Judge has made contrary observation that the earlier applications at Exh.151 and Exh.152 were for issuance of summons to the witnesses and application Exh.158 was for the grant of permission to examine the witness. It was further submitted that as the power of attorney was not registered in the register of the Notary and Survey No. 1044 was came into existence in 2012 and alleged power of attorney was executed in the year 2009 both the aspects go to the root of the matter and are important to decide the entire suit. In support of his arguments, learned advocate for the petitioners has relied upon the judgment in the case of Mange Ram vs. Brij Mohan and Others, 1988 (1) GLH 434 and submitted that witness can be examined even without summons and without list of witnesses produced on record. Hence, it was requested by learned advocate for the petitioners to quash and set aside the order dated 11.02.2021 passed by the learned Principal Senior Civil Judge at Sanand below Exh.158 in Special Civil Suit No. 549 of 2017 and to allow the application Exh.158. 6. Per contra, learned advocate for the respondent no. 1 has strongly objected the submissions made by learned advocate for the petitioners and submitted that the mandatory provisions under Order 16 Rule 1 of the CPC was not complied with by the present petitioners. That the written statement was filed by the defendants, but no list of witnesses was produced at the relevant of time nor any document. 1 has strongly objected the submissions made by learned advocate for the petitioners and submitted that the mandatory provisions under Order 16 Rule 1 of the CPC was not complied with by the present petitioners. That the written statement was filed by the defendants, but no list of witnesses was produced at the relevant of time nor any document. It was further submitted that the petitioners were aware of the fact of the suit as well as power of attorney was executed in the year 2009, however, no defence was raised in the written statement. That defence of the defendants was disclosed while examination of the plaintiff, and thereafter, at a subsequent stage, this application was submitted and previous two applications at Exh.151 and 152 were already rejected by the Court after hearing the parties and thereafter, by submitting further application Exh.158, the petitioners tried to review previous order, which is righlty denied by the Court-below rejecting the application Exh.158. That no permission as prayed for by the petitioners without any witness list as required under Order 16 Rule 1 of the CPC can be granted, as prayed for. It was further submitted that the learned Judge has committed no error in dismissing the application Exh.158 preferred by the petitioners. It was further submitted that it was clear negligence on the part of the petitioners to submit the application Exh.158 after recording the evidence of the plaintiff as well as defendant no. 1. In support of his arguments, learned advocate for the respondent no. 1 has placed reliance on the judgment in the case of Kumarpal Nagardas Shah and Others vs. Shardaben Wd/o Ratikant Kasturchand Shah and Others in Special Civil Application No. 6382 of 2004 in Paragraph No. 7. Ultimately, it was requested by learned advocate for the respondent no. 1 to dismiss the application. 7. Having heard learned advocates for the respective parties and perused the documents produced on record, it appears that after recording the evidence of the defendant no. 1 in Special Civil Suit No. 549 of 2017, application Exh.158 was submitted by the present petitioners as they were defendant nos.1 to 4 in the suit. It is an admitted position that previous two applications at Exh.151 and 152 were dismissed by the Court observing that no prior permission was sought by the present petitioners for issuance of summons. 1 in Special Civil Suit No. 549 of 2017, application Exh.158 was submitted by the present petitioners as they were defendant nos.1 to 4 in the suit. It is an admitted position that previous two applications at Exh.151 and 152 were dismissed by the Court observing that no prior permission was sought by the present petitioners for issuance of summons. It further appears that before submitting an application Exh.158 in the suit, one witness list was produced vide Exh.157 that too after recording the evidence of the defendants. In the application, it was contended that no original power of attorney was produced by the plaintiff along with the agreement to sell. It was further contended that the said power of attorney was not registered in the register maintained by Notary which was disclosed in the police inquiry, and therefore, the power of attorney was got up and fabricated. As per the contentions in the application Exh.158, the power of attorney was executed by Notary viz. Shri Bhalchandra B. Gandhi under his signature and seal on 30.03.2009. If the register containing the entry of the power of attorney would be produced on record, clear chapter would be found before the Court. As the power of attorney viz. Shri Bhalchandra B. Gandhi was expired, register was maintained and kept by his daughter. It was further submitted and contended in the application that out of the suit property, Block No. 16765, Account No. 120 was entered in the revenue record as Account No. 1044 in 2012 after executing the power of attorney, and therefore, the power of attorney was fabricated and created. The same contentions were raised by the present petitioners in their written statement filed in the suit, and therefore, request was made to call the witness viz. Rupalben Sanjaykumar Shah and Talaticum-Mantri of Charsadvadi, Vasna, Ahmedabad. The Court observed in its order that the previous applications Exhs.151 and 152 preferred by the present petitioners were dismissed by the Court after hearing both the parties. It was further observed that the same type of arguments were made by deciding the present application Exh.158 and dispute was raised. Rupalben Sanjaykumar Shah and Talaticum-Mantri of Charsadvadi, Vasna, Ahmedabad. The Court observed in its order that the previous applications Exhs.151 and 152 preferred by the present petitioners were dismissed by the Court after hearing both the parties. It was further observed that the same type of arguments were made by deciding the present application Exh.158 and dispute was raised. It was further observed that at the time of filing the application Exhs.151 and 152 preferred by the present petitioners, no application under Order 16 Rule 3 of the CPC was submitted to permit the petitioners for examination of the witness and straightaway application was given to issue summons to the witness. It was further observed that while in the present application i.e. Exh.158, permission was sought for by the petitioners to examine the witness. As contents of the previous applications Exh.151 and 152 preferred by the petitioners were common as well as the prayer which were dismissed vide an order dated 01.02.2021, if the prayer made in the application Exh.158 would be considered, it would term to be a review application which the Court has no power to review the order. Hence, it was dismissed vide order dated 11.02.2021. No further reasons were assigned by the Court while rejecting the application Exh.158. As provided under Order 16 Rule 1, it is an admitted position that no witness list was produced by the present petitioners when the issues were settled. It is also an admitted position that after recording the evidence of the defendant no. 1, this third application Exh.158 was submitted by the present petitioners. As provided under Rule 3 of Order 16 of the CPC, the Court may, for the reason to be recorded, permit a party to call whether by summoning through Court or otherwise, any witness, other than those witness whose names appear in the list referred to in sub-rule (1), if such parties show sufficient cause for the omission to mention the name of such witness in the said list. In the application Exh.158 preferred by the present petitioners, sufficient reasons were shown for granting permission for the production of the documents and examination of the witness. In the application Exh.158 preferred by the present petitioners, sufficient reasons were shown for granting permission for the production of the documents and examination of the witness. Truly, in the previous application preferred by the present petitioners Exhs.151 and 152, no reasons were assigned by them permitting them to examine the witnesses or production of the documents, as intended and therefore, only on this ground previous two applications were dismissed by the Court i.e. Exhs.151 and 152. In the third application, the petitioners in detail gave sufficient reasons to permit them to examine their witnesses. Considering the facts of the present case, if the permission as sought for by the present petitioners would be granted to them to examine their witnesses or for the production of the documents, there is no possibility of causing any prejudice to the respondents, however, the evidence of the plaintiff is over as well as their cross-examination. Two proposed witnesses, as intended by the petitioners to examine in the suit, opportunity to cross-examination of the proposed witness would certainly be available to the respondents herein. It is the duty of the Court to find out the truth of the dispute pending between the parties in the suit. Negligence, if any, on the part of the present petitioners for not producing the witness-list as provided under Order 16 Rule 1 of the CPC and in the previous applications Exhs.151 and 152 not assigning any reasons or sought permission for examination of the witness cannot deny them to avail the remedy of filing subsequent application Exh.158 with the reasons and seeking permission to examine the witnesses. The Hon’ble Apex Court in the case of Mange Ram vs. Brij Mohan and Others (supra) has observed in Paragraph Nos. 9, 10 and 11 as under: “9. Where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of witness in the Court as directed by sub-rule (1) of Rule 1 and make an application as provided by Sub-Rule (2) of Rule 1. But where the party would be in a position to produce its witnesses without the assistance of the court, it can do so under R. 1-A of O. 16 irrespective of the fact whether the name of such witness is mentioned in the list or not. 10. There is no inner contradiction between sub-rule (1) of R.1 and R.1-A of O.16. Sub-Rule (3) of R.1 of O.16 confers a wider jurisdiction on the court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under R.1-A and in such a situation the party of necessary has to seek the assistance of the Court under sub-rule (3) to procure the presence of the witness. Sub-Rule (1) and R.1-A operate in two difference areas and cater to two difference situations. 11. The analysis of the relevant provisions would clearly bring out the underlying scheme under O.16, R.1 and 1-A and R.22 of the High Court Rule would not derogate from such scheme. The scheme is that after the court framed issue which gives notice to the parties what facts they have to prove for succeeding in the matter which notice would enable the parties to determine what evidence oral and documentary it would like to lead, the party should file a list of witnesses with the gist of evidence of each witness the court within the time prescribed by sub-rule (1). This evidence filing of list is necessary because summoning the witnesses by the Court is a time consuming process and to avoid the avoidable delay in obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the Court. This evidence filing of list is necessary because summoning the witnesses by the Court is a time consuming process and to avoid the avoidable delay in obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the Court. But if on the date fixed for recording the evidence, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub-rule (1) of R.1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under R.1-A. The only jurisdiction the court has to decline to examine the witness is the one set out in proviso to S. 87(1) of Act No. 43 of 1951 the discretion being confined to refusing to examine witnesses on the ground that the evidence is either frivolous or vexatious or the evidence is led to delay the proceedings. Save this the court has no jurisdiction to decline to examine the witness produced by the party and kept present when the evidence of the party is being recorded and is not closed, and the court has no jurisdiction to refuse to examine the witness who is present in the court on the short ground that the name of the witness was not mentioned in the list filed under Sub-Rule (1) of R.1 of O. 16 of the Civil Procedure Code.” 8. This Court in Special Civil Application No. 6382 of 2004 relied upon by learned advocate for the respondent no. 1 has observed in Paragraph No. 7 as under: “7. It is not the case of the petitioner No. 3 that when he led the evidence, the evidence now sought to be produced, was not within his knowledge and could not be produced despite due diligence. The reason for non-production of such evidence at the relevant time is that it could not be produced due to inadvertence. It is not the case of the petitioner No. 3 that when he led the evidence, the evidence now sought to be produced, was not within his knowledge and could not be produced despite due diligence. The reason for non-production of such evidence at the relevant time is that it could not be produced due to inadvertence. Inadvertence is a form of negligence, therefore, non-production of the evidence sought to be now produced, is attributable to negligence and failure to produce such evidence because of inadvertence/negligence, is not a lawful ground to permit a party to lead additional evidence within the ambit and scope of Rule 17A of Order 18 of the Code as it stood before amendment.” 9. In the cited case, the evidence which was sought to be produced was due to inadvertence, and therefore, it was observed that negligence and failure to produce such evidence because of inadvertence/negligence, is not a lawful ground to permit a party to lead the additional evidence within the ambit and scope of Rule 17-A of Order 18 of CPC as it stood before amendment. Here the documents which were sought to be produced and witnesses to be examined by the present petitioners, the power of attorney and entry in the register were not in the custody of the present petitioners. Considering the facts of the present case, there is no possibility of causing any prejudice to the respondents herein if such permission as prayed for in application Exh.158 would be granted by the Court. 10. With the above observations, order passed below Exh.158 dated 11.02.2021 in Special Civil Suit No. 549 of 2017 is hereby quashed and set aside and Exh.158 is allowed. The present petition is hereby allowed and disposed of. Rule is made absolute accordingly.