SCA/12379/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12379 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KUTCHH DISTRICT PANCHAYAT - Petitioner Versus PRABHULAL M THAKKAR - Respondent ========================================================= Appearance : MR HS MUNSHAW for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 24/12/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner original plaintiff has prayed for an appropriate writ, direction and/ or order quashing and setting aside the order passed by learned Additional Civil Judge, Kutch dated 22.10.2007 passed below SCA/12379/2008 2/5 JUDGMENT Exh. 53 in Regular Civil Suit No. 27 of 2000 as well as the order dated 4.7.2008 passed below Exh. 60 in Regular Civil Suit No. 27 of 2000, by which the learned trial Court has dismissed the applications submitted by the petitioner- plaintiff requesting to reopen the right of the petitioner-plaintiff to lead the evidence and produce certain documents. 2. It appears that respondent original defendant was entrusted work of construction of Primary Health Centre at village Dagala Taluka Bhuj Dist. Kutch which the defendant failed to complete the work and, therefore, the petitioner-Panchayat was required to get such work done through another agency at the risk and cost of the respondent herein and it is the case on behalf of the petitioner-Panchayat that they had incurred cost of Rs. 50,000/-. Therefore, the petitioner-plaintiff preferred Regular Civil Suit No. 27 of 2000 in the Court of learned Civil Judge (S.D.) at Bhuj against the respondent. It appears that Exh. 53 was submitted by the petitioner with a request to produce certain documents on 2.4.2007. The said application came to be dismissed while order dated 22.10.2007. That, thereafter the petitioner-plaintiff moved application Exh. 60 requesting to reopen the right of the plaintiff to lead the evidence, however, the same also came to be dismissed by the learned trial Court SCA/12379/2008 3/5 JUDGMENT by impugned order. Being aggrieved and dissatisfied with the aforesaid two orders, the petitioner-plaintiff has preferred the present Special Civil Application under Article 227 of the Constitution of India. 3. At the outset, it is required to be noted that while issuing the notice for final disposal this Court passed the following order: “It prima facie appears that on payment on cost which is time being quantified at Rs. 3,000/-, right of the petitioner to reopen the evidence to produce certain documents can be considered. Hence, notice for final disposal returnable on 22.10.2008 on condition that petitioner shall deposit Rs. 3,000/- with the Registry of this Court on or before 21.10.2008. Direct service permitted.” It appears that though served nobody appears on behalf of the respondent. It is also reported that the petitioner has deposited Rs. 3,000/- with the Registry of this Court pursuant to the order passed by this Court dated 10.10.2008. Thus, it appears that there is no opposition to the present Special Civil Application. Under the circumstances and even otherwise, considering the impugned order passed by court below, by which the learned trial Court has dismissed the applications submitted by the petitioner- plaintiff to reopen his right to lead the evidence and produce certain documents, it SCA/12379/2008 4/5 JUDGMENT appears that learned trial Court has committed an error in dismissing the aforesaid applications. It appears to the Court that on imposition of reasonable cost and to do complete and substantial justice and to adjudicate the dispute, the learned trial Court ought to have reopened the right of the petitioner-plaintiff to lead the evidence and produce certain documentary evidence. Under the circumstances, impugned order passed by the learned trial Court deserves to be quashed and set aside on imposition of cost which is quantified at Rs. 3,000/-, which is already deposited by the petitioner-plaintiff with the Registry of this Court. 4.For the reasons stated above, petition succeeds. The impugned order passed by learned Additional Civil Judge, Kutch dated 22.10.2007 passed below Exh. 53 in Regular Civil Suit No. 27 of 2000 as well as the order dated 4.7.2008 passed below Exh. 60 in Regular Civil Suit No. 27 of 2000 are hereby quashed and set aside and the right of the petitioner-plaintiff to lead the evidence is reopened on condition to pay cost of Rs. 3,000/- which the petitioner- plaintiff has already deposited with Registry of this Court on 18.10.2008 pursuant to the order passed by this Court dated 10.10.2008. Registry is directed to transmit the said amount to the SCA/12379/2008 5/5 JUDGMENT learned trial Court to be deposited in Regular Civil Suit No. 27 of 2000 and the respondent- defendant would be entitled to withdraw the said amount and the learned trial Court is directed to pay the same to the respondent-defendant by Account Payee Cheque. Rule is made absolute accordingly. (M.R.SHAH,J.) kaushik