SCA/3590/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3590 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 ? ========================================= = VASANTIBEN PRATAPRAI SHAH & 2 - Petitioner(s) Versus VINODRAI BHOGILAL SHAH & 7 - Respondent(s) ========================================= = Appearance : MR MEHUL S SHAH for Petitioner(s) : 1 – 3. MR SURESH M SHAH for Petitioner(s) : 1 - 3. MR NIRAV C THAKKAR for Respondent(s) : 1 - 5. None for Respondent(s) : 6 - 8. ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/08/2008 ORAL JUDGMENT 1. RULE. Shir Nirav Thakkar, learned advocate waives SCA/3590/2008 2/5 JUDGMENT service of rule on behalf of respondents nos. 1 to 5, who are the main contesting parties. 2. With the consent of the learned advocates appearing for the respective parties, the present Special Civil Application is taken up for final hearing today. 3. By way of this petition under Article 227 of the Constitution of India, the petitioners-original plaintiffs have prayed for an appropriate writ, order or direction quashing and setting aside the impugned order dated 28/09/2007 passed below Exh. 208 in Special Civil Suit No. 205/2000 by the learned 9th Additional Senior Civil Judge and Judicial Magistrate First Class, Jamnagar by which the learned trial Court has allowed the said application by exhibiting the documents, mentioned in the said application, more particularly, Mark 75/1 to 75/4, 75/6 to 75/17, 75/21 to 75/29, 75/33 and 95/1 to 95/16 tentatively and the admissibility of the same should be considered at the stage of final hearing of the suit. 4. It appears that there is serious dispute with respect to the documents, Mark 75/1 to 75/4, 75/23, 96/14, 96/15 and 96/16. It is the case on behalf of the petitioners-original plaintiffs that the said documents are not release deed but partition deed and the same are on insufficient stamp and, therefore, the said dispute is required to be resolved at this stage before passing an appropriate order to exhibit those documents. 5. Shri Mehul Shah, learned advocate appearing on behalf of the petitioners has vehemently submitted that so far as the aforesaid documents are concerned, the learned trial Court has SCA/3590/2008 3/5 JUDGMENT committed an error in exhibiting those documents without considering the admissibility of the same. It is submitted that the learned trial Court has not properly appreciated the decision of the Hon'ble Supreme Court in the case of BIPIN SHANTILAL PANCHAL Vs STATE OF GUJARAT AND ANR reported in (2001) 3 SCC 1. Relying upon paragraph 14 of the above judgement, more particularly the bracketed portion, it is submitted that as held and observed by the Hon'ble Supreme Court, if the objection at the time of exhibiting the documents relates to deficiency of stamp duty of a document, the Court has to decide the objection before proceeding further and for all other documents, the procedure suggested to the effect that the same can be tentatively exhibited and the objections with respect to the admissibility of the same can be considered at the time of final hearing of the suit, can be adopted. Therefore, it is submitted that the learned trial Court has committed an error in passing the order of exhibiting the above documents. 6. Shri Nirav Thakkar, learned advocate appearing on behalf of respondents nos. 1 to 5, the main contesting respondents, has submitted that as such there is suppression in the petition as regards the objections. However, as observed by the learned trial Court, no written objections were submitted to the application, Exh. 208 and on merits, the same has been decided. It is further submitted by him that the learned trial Court has looked into the aforesaid documents and has considered the same, whether the same is partition deed or release deed, and thereafter after adopting the procedure and the observations made by the Hon'ble Supreme Court in the aforesaid case, when the impugned order is passed, the same SCA/3590/2008 4/5 JUDGMENT is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India and, therefore, it is requested to dismiss the present Special Civil Application. 7. Heard the learned advocates appearing for the respective parties. It appears from the impugned order that serious objections are raised by the petitioner with respect to the admissibility of the documents produced at Mark 75/1 to 75/4, 75/23, 96/14, 96/15 and 96/16 and it is the contention on behalf the petitioners that the said documents are partition deed and not release deed and if the said are considered as partition deed, the same are on insufficient stamp and, therefore, inadmissible in evidence. Considering the impugned order, it cannot be said that no objections were raised by the petitioners at all. Even at so many places, the learned trial Court has recorded the objections raised by the petitioners, and, therefore, prima facie it appears that there is no suppression of fact with respect to raising the objections. 8. Now so far as merits of the present Special Civil Application is concerned, considering the objections raised by the petitioners with respect to the admissibility of the aforesaid documents and the objections raised on behalf of the petitioners, which relates to deficiency of the stamp duty of the aforesaid documents, the observations made by the Hon'ble Supreme Court in the case of BIPIN SHANTILAL PANCHAL Vs STATE OF GUJARAT AND ANR (Supra) (paragraph 14), is required to be considered. As observed by the Hon'ble Supreme Court in the said decision, if the objection relates to deficiency of stamp duty of a document, the Court has to SCA/3590/2008 5/5 JUDGMENT decide the objection before proceeding further and for all other documents whenever objections are raised, the procedure suggested in the said paragraph that the said documents be given tentative exhibits and the objections with respect to the admissibility can be considered at the final stage of the suit can be followed. Considering the above, the learned trial Court has committed an error in exhibiting the documents, Mark 75/1 to 75/4, 75/23, 96/14, 96/15 and 96/16. As held by the Hon'ble Supreme Court in the aforesaid decision, the said objections with respect to the insufficiency of the stamp was required to be considered by the learned trial Court, before proceeding further. Under the circumstances, the present Special Civil Application qua the aforesaid documents is required to be allowed and the rest of the order with respect to exhibiting other documents is required to be confirmed. 9. For the reasons stated herein, the petition succeeds in part. The impugned order passed by the learned trial Court below Exh. 208 in exhibiting the documents, Mark 75/1 to 75/4, 75/23 and 96/14 to 96/16 is hereby quashed and set aside and the rest of the order with respect to exhibiting other documents is hereby confirmed. The learned trial Court is directed to consider the objections submitted by the petitioner with respect to admissibility of the aforesaid documents at this stage before proceeding further. Rule is made absolute. There shall be no order as to costs. (M.R. SHAH, J.) siji