SCA/24503/2006 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24503 of 2006 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? ========================================================= DINESHCHANDRA DHIRAJLAL GANDHI - Petitioner(s) Versus MANUBHAI KANJIBHAI ZALAVADIA & 3 - Respondent(s) ========================================================= Appearance : MR DAKSHESH MEHTA for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 2. MR RS SANJANWALA for Respondent(s) : 1, NOTICE UNSERVED for Respondent(s) : 3 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 18/12/2008 ORAL JUDGMENT 1. Rule. Mr.R.S.Sanjanwala, learned Advocate waives service of rule on behalf of the respondent and Mr.Mrugen Purohit, learned Advocate waives service of rule on behalf of respondent No.4 who are SCA/24503/2006 2/8 JUDGMENT main contesting parties. With the consent of the learned Advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner – original defendant no.1 has prayed for an appropriate Writ, direction and/or order quashing and setting aside the order dated 27.09.2006 passed by the learned 4th Additional Senior Civil Judge, Navsari below Exh.10 in Special Civil Suit No.15 of 2006 in so far as rejecting the prayer of the petitioner for production of remaining documents at Mark 3/2 and Mark 3/3, which according to the petitioner – original defendant no.1 are in possession of respondent No.4. That respondent No.1 – original plaintiff had instituted Special Civil Suit No.15 of 2006 before the learned Civil Judge (SD), Navsari for specific performance of the contract and for declaration and permanent injunction and for restoring possession. It is the case on behalf of the petitioner that respondent No.1 had originally filed Regular Civil Suit No.10 of 2006 for declaration and permanent injunction against the petitioner and other 10 persons on 30.01.2006 with regard to the same subject matter of same property, wherein Exh.5 application was also made. It is the case on behalf of the petitioner that the learned Judge did not grant any injunction as prayed for and therefore, respondent No.1 along with other head strong persons had SCA/24503/2006 3/8 JUDGMENT forcefully taken the possession of the suit property at the midnight of 31.01.2006 and on the very day on 01.02.2006, the petitioner lodged a complaint against the respondents and others before the concerned Police Station. However, nothing was done and therefore, the petitioner was constrained to file Special Criminal Application No.224 of 2006 and this Court vide order dated 08.02.2006 directed the District Superintendent of Police, Navsari to make discreet inquiry and ascertain whether the petitioner and the registered owners of the property have been disposed forcibly or by legal measure and if answer is in the affirmative, then he can suo-moto take appropriate action to protect the person and property. It is the case on behalf of the petitioner that as the authorities had concluded that the petitioner had been dispossessed forcefully, that is why the possession was restored by a Panchkyas dtd. 28.04.2006. That thereafter, respondent – original plaintiff withdrew Regular Civil Suit No.10 of 2006 and instituted present Special Civil Suit No.15 of 2006 in the Court of learned Civil Judge, (SD), Navsari for the aforesaid relief. In the said suit the petitioner submitted application Exh.10 under Order 13 Rule 3 of the Code of Civil Procedure for production of documents which were produced by the original plaintiff vide Mark 3/2 and Mark 3/3 by submitting that originals are in possession of original plaintiff. The learned Judge by impugned order partly allowed the said application Exh.10 by directing the plaintiff to produce original documents SCA/24503/2006 4/8 JUDGMENT of Mark 3/4 and 3/5 which are in his possession and power and rejected the application of the petitioner for production of originals of Mark 3/2 and Mark 3/3 solely on the ground that said documents are in possession of the defendant and not in possession of the plaintiff and therefore, the plaintiff cannot be directed to produce those documents. Being aggrieved and dissatisfied with the impugned order passed by the learned 4th Additional Senior Civil Judge, Navsari below Exh.10 in Special Civil Suit No.15 of 2006 in so far as not directing to produce original documents Mark 3/2 and Mark 3/3, the petitioner – original defendant No.1 has preferred present Special Civil Application under Article 227 of the Constitution of India. 3. Mr.D.B.Mehta, learned Advocate for the petitioner – original defendant No.1 has vehemently submitted that the learned trial Court has materially erred in not directing for production of originals of Mark 3/2 and Mark 3/3 and it is submitted that as admitted by defendant No.4 in reply dated 02.05.2006 that documents in question are in his possession and if Court orders he is ready to produce the same, the learned trial Court ought to have directed said defendant to produce originals of those documents Mark 3/2 and Mark 3/3. It is submitted that when the petitioner has specifically pointed out in the application that defendant No.4 is in possession of Mark 3/2 and Mark 3/3 the learned trial Court ought to have directed defendant no.4 to produce the SCA/24503/2006 5/8 JUDGMENT originals of said documents and ought not to have dismissed the said application solely on the ground that he cannot produce those documents. It is submitted that it was never the case of the petitioner that documents Mark 3/2 and Mark 3/3 are in possession of original plaintiff. It is submitted that it was specific case on behalf of the petitioner that aforesaid documents are in possession of original defendant No.4. Mr.Mehta, learned Advocate for the petitioner – original defendant no.1 has relied upon decision of this Court in the case of Union Bank of India v/s. Hemantlal Ranchhodlal Vaghela reported in 1991(1) GLH 145 as well as decision of this Court in the case of Kamaliya Brothers & Co. v/s. State of Gujarat reported in 1992(1) GLH 274 in support of his submission that the learned trial Court ought to have directed defendant No.4 to produce originals of Mark 3/2 and Mark 3/3. Therefore, it is requested to allow present Special Civil Application. 4. Present petition is opposed by the learned Advocates appearing on behalf of the respondent Nos.1 and 4. Mr.S.H.Sanjanwala, learned Senior Advocate for respondent No.1 – original plaintiff has submitted that considering provisions of Order 13 Rule 3 the learned trial Court has rightly rejected the application submitted by the petitioner for production of originals of documents Mark 3/2 and Mark 3/3. It is submitted that even so called admission by defendant No.4 in the reply dated SCA/24503/2006 6/8 JUDGMENT 02.05.2006 is only with respect to document Mark 3/3 and there is no evidence whatsoever that original document Mark 3/2 is in possession of defendant No.4. Therefore, it is submitted that as such no relief can be granted with respect to document Mark 3/2. Learned Advocates appearing for respondent Nos.1 and 4 have submitted that their might be some mistake in reply dated 02.05.2006 of respondent No.4 admitting that aforesaid document are in his possession and if the Court orders he is ready to produce the same. Therefore, it is submitted that no reliance can be placed upon said reply dated 02.05.2006 and so called admission. Therefore, it is requested to dismiss present Special Civil Application. 5. Heard the learned Advocates appearing on behalf of the respective parties. 6. At the outset it is required to be noted that vide impugned order the learned trial Court has rejected the prayer of the petitioner – original defendant No.1 for production of remaining documents mark 3/2 and mark 3/3 which are alleged to be in possession of respondent No.4. Said application has been submitted under Order 11 Rule 12 of the Code of Civil Procedure. It is specific case on behalf of the petitioner – original defendant No.1 that originals of documents Mark 3/2 and Mark 3/3 are in possession of defendant No.4 and inspite of clear admission by defendant No.4 in his reply dated 02.05.2006 admitting that said documents in question SCA/24503/2006 7/8 JUDGMENT are in his possession, he is not producing the same. On considering reply dated 02.05.2006 filed by defendant No.4, it appears that he has categorically admitted that he is in possession of original document dated 29.05.1996 with original signature and if the Court directs he is ready to produce the same. Now so far as the document dated 29.05.1996 is concerned, xerox copy is produced at Mark 3/3. There is no evidence that original of document Mark 3/2 is in possession of defendant No.4. Under the circumstances and considering Order 11 Rule 12 of the Code of Civil Procedure no relief can be granted in favour of the petitioner directing defendant no.4 to produce original of Mark 3/2. However, in view of clear admission on the part of defendant no.4 in his reply dated 02.05.2006, the learned trial Court ought to have directed defendant no.4 to produce original of Mark 3/3. 7. The contention on behalf respondent Nos.1 and 4 herein, more particularly defendant no.4 that there is typographical error and/or mistake in reply dated 02.05.2006 with respect to document dated 29.05.1996, however, same cannot be accepted and it cannot be said that there is typographical error and/or mistake. It appears that for some reason now defendant no.4 wants to back out from his admission while submitting reply dated 02.05.2006, which is not permissible. Under the circumstances and considering decision of this Court in the case of Union Bank of India(supra) and in the case of Kamaliya Brothers & SCA/24503/2006 8/8 JUDGMENT Co.(supra), the petition deserves to be partly allowed by directing defendant no.4 to produce original of document Mark 3/3 and to that extent also application Exh.10 is required to be allowed. 8. For the reasons stated above, the petition succeeds in part. The impugned order dated 27.09.2006 passed by the learned 4th Additional Senior Civil Judge, Navsari below Exh.10 in Special Civil Suit No.15 of 2006 is hereby quashed and set aside to the extent not directing defendant no.4 to produce original of document Mark 3/3 and to that extent also application Exh.10 is hereby allowed and original defendant no.4 is hereby directed to produce original of document Mark 3/3 before the learned trial Court. Prayer of the petitioner directing defendant no.4 to produce originals of document Mark 3/2 is hereby rejected. Rule is made absolute to the aforesaid extent. No order as to costs. [M.R.Shah,J.] satish