SCA/10343/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10343 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 ? ========================================= = CHAMANLAL KANJIBHAI THAKKAR - Petitioner(s) Versus SHARIFA BABUBHAI AKBAR THROUGH HEIRS AND L R & 5 - Respondent(s) ========================================= = Appearance : MR ANSHIN H DESAI for Petitioner(s) : 1, MS ABHA B MAKWANA for Respondent(s) : 1, None for Respondent(s) : 2 - 6. ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 14/08/2008 ORAL JUDGMENT 1. RULE. Ms. Abha B. Makwana, learned advocate waives service of rule on behalf of respondent no. 1, who is on caveat. SCA/10343/2008 2/5 JUDGMENT 2. With the consent of the learned advocates appearing for the respective parties, the present Special Civil Application is taken up for hearing today. 3. By way of this petition under Article 227 of the Constitution of India, the petitioner-original plaintiff has prayed for an appropriate writ, order or direction quashing and setting aside the order passed by the learned Presiding Officer, Fast Track Court No. 9, Morbi below Exh. 3 in Civil Miscellaneous Appeal No. 27/2007. 4. Though, it is prayed in the present Special Civil Application to quash and set aside the order passed by the learned trial Court below Exh. 5 dated 10/08/2007 in dismissing the said application, Shri Anshin Desai, learned advocate appearing on behalf of the petitioner-original plaintiff does not press the said relief in view of the order passed hereinbelow. 5. It appears that the petitioner-original plaintiff instituted Regular Civil Suit No. 188/2007 before the learned Senior Civil Judge, Morbi for declaration and permanent injunction and in the said suit, the petitioner-orignal plaintiff submitted an application, Exh. 5. It was the contention on behalf of the petitioner-original plaintiff that at the relevant time the petitioner-original plaintiff was not in a position to get the necessary documentary evidence as the godown/shop came to be demolished. The learned trial Court dismissed the application, Exh. 5, by observing that the petitioner-original plaintiff has failed to produce the documentary evidence in support of his case. SCA/10343/2008 3/5 JUDGMENT 6. Being aggrieved and dissatisfied with the order passed below Exh. 5 by the learned trial Court, the petitioner-original plaintiff had preferred Civil Miscellaneous Appeal No. 27/2007 and in the said appeal, the petitioner-original plaintiff submitted an application, Exh. 3 under Order 41 Rule 27 of the Civil Procedure Code for producing the necessary documentary evidence. The learned appellate Court by the impugned order dated 29/02/2008 dismissed the application, Exh. 3 by observing that all the conditions under Order 41 Rule 27 of the Civil Procedure Code are not complied with and/or satisfied and the documents were not produced at the relevant time and the learned appellate Court dismissed Civil Miscellaneous Appeal No. 27/2007 by impugned order dated 15/04/2008 confirming the order passed below Exh. 5. Being aggrieved and dissatisfied by both the aforesaid orders, the petitioner-original plaintiff has preferred the present Special Civil Application under Article 227 of the Constitution of India. 7. Having heard the learned advocates for the respective parties, considering the order passed below Exh. 3 and the order in Appeal confirming the order passed below Exh. 5 and the case on behalf of the petitioner-original plaintiff that the petitioner-original plaintiff could not produce the relevant documentary evidence at the relevant time as the petitioner was not having the same as his godown/shop was demolished, which he subsequently got, and considering the same when the application Exh. 3 was submitted, even prior to the decision of the Civil Miscellaneous Appeal, it appears to the Court that the learned appellate Court ought to have permitted the petitioner-original plaintiff to produce the said documentary evidence to do substantial justice. If, the SCA/10343/2008 4/5 JUDGMENT documents would have been permitted to have been produced on record, as such, no prejudice would be caused to the respondents herein as ample opportunity will be given to the respondents to meet with the same by the learned appellate Court. 8. Under the circumstances, the order passed below Exh. 3 by the learned appellate Court deserves to be quashed and set aside and the Civil Miscellaneous Appeal dismissed by the learned appellate Court, without considering the documentary evidence produced alongwith application, Exh. 3, also deserves to be quashed and set aside. 9. For the reasons stated hereinabove, the petition succeeds. The order passed by the learned Presiding Officer, Fast Track Court, Morbi dated 29/02/2008 below Exh. 3 in Civil Miscellaneous Appeal No. 27/2007 as well as the judgement and order passed by the learned appellate Court dated 15/04/2008 passed in Civil Miscellaneous Appeal No. 27/2007 in dismissing the same and confirming the order passed by the learned trial Court below Exh. 5 are hereby quashed and set aside. The Appeal is ordered to be remanded to the learned appellate Court for deciding the same afresh in accordance with law and on its own merits, after taking into consideration, the documentary evidences produced alongwith application, Exh. 3, and after giving an opportunity to both the parties to meet with the said documentary evidences. 10. With this, the present Special Civil Application is allowed. Rule is made absolute accordingly. There shall be no order as to costs. SCA/10343/2008 5/5 JUDGMENT (M.R. SHAH, J.) siji