LPA/52420/2001 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 524 of 2001 In FIRST APPEAL No. 449 of 1980 With CIVIL APPLICATION No. 6753 of 2003 In LETTERS PATENT APPEAL No. 524 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 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 ? ====================================== BABUBHAI SAHMJI & ANOTHER Versus BAI HETIBEN,WD/O NATHA HIRJI & OTHERS ====================================== Appearance : MRS KETTY A MEHTA for the Appellant None for Respondent(s) : 1, 1.2.1, 1.2.2,1.2.6 - 2,4 - 5. MR Mihir Joshi, Senior Advocate assisted by Shri Hriday Buch for Respondent Nos.1.2.3,1.2.4 Mr S.N.Shelat, Senior Advocate assisted by Mr Samir K Bundela for respondent NO.7 ====================================== LPA/52420/2001 2/3 JUDGMENT CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 29/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) Heard learned counsel for the parties. Ms Ketty Mehta, learned counsel for the appellant has vehemently contended that certain documents have been unearthed subsequently and therefore under Order 41 Rule 27(1)(b) of the Civil Procedure Code opportunity of bringing additional evidence on record should be provided. While urging this submission, she fairly conceded that the basis of these documents has not been pleaded in the plaint. We are afraid that unless there are pleadings, no evidence can be permitted to be adduced. That being the position, there being no basic averments in the plaint, any averment which is beyond the pleadings in the suit should not be permitted. Therefore, application for additional evidence cannot be permitted. Hence, the application is rejected. The further case of the appellant is that they are claiming their right through Daljibhai. Daljibhai died in the year 1959. In the year 1959 Daljibhai had cognates. Though it is contended by the respondents that there are more than one cognates, it is contended that at least his wife was there. If cognates are existing, agnates have no right to file the suit. Hence, the suit was incompetent. Based on such perception, which is not correct the suit was filed. With that opinion expressed by us, we would order that suit itself is incompetent without LPA/52420/2001 3/3 JUDGMENT further going into any further details of the orders passed by the courts below, the suit is being dismissed as incompetent. It is urged by Ms Ketty Mehta that the suit could not have been dismissed qua other respondents than Mena, but then this question is not relevant at this juncture because the suit itself has been held to be incompetent and therefore the suit is being dismissed as incompetent. It was not required to be stated that it is dismissed against one respondent or the other respondents. By our aforesaid order, it should not be deemed that any right is conferred upon any party, which is not sanctioned by law. The appeal fails and is accordingly dismissed. In view of the disposal of the main appeal, no orders are required to be passed on Civil Application No.6753 of 2003. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd