1. In this petition, the petitioner herein is the original plaintiff of Summary Civil Suit No.1247 of 2003 filed before the City Civil Court, Ahmedabad for recovery of a sum of Rs.17,45,679/- with further interest. Challenge herein is to the order dated 18.07.2011 passed by the learned City Civil Judge on an application preferred below Exh.190.
2. This litigation has a long drawn history.
After framing of issue vide Exh.103, present petitioner had given an application Exh.148, wherein the request to exhibit some of the documents permitted to be produced vide Exh.146 and Exh.149-A was made. Such request was rejected on the ground that law does not recognize additional/further affidavit-in-chief. This disallowance was challenged before this Court in Special Civil Application No.10800 of 2009 with Civil Application No.12971 of 2009 and this Court (Coram: Anant S. Dave, J.) vide order dated 28.07.2010 upheld order of the Trial Court, the Court at the relevant time had allowed the documents to be produced. However, for proving these documents, direction of further affidavit-in-chief in absence of any provision under the Code of Civil Procedure, was denied and such stand was upheld.
3. But, while dismissing the petition, this Court permitted him to prove the said documents by lawful means other than filing of further affidavit, subject to the right of the defendants to object thus:
"5. It is clarified that this order will not come in the way if the documents, which were permitted to be produced by the earlier order dated 04.08.2009 below application Exh.130 are sought to be proved by lawful means other than filing of an affidavit, subject to the right of the defendants to object."
4. By preferring an application vide Exh.190, petitioner-original plaintiff made a request for summoning Income Tax Officer as a witness of Income-Tax Department, Ward No.7(2), Navjivan Building, Ashram Road, Ahmedabad for proving the Form No.16-A of the relevant period of 01.04.1995 to 30.03.1996 in connection with the Proprietor N. K. Zaveri of N. K. Textiles.
5. The Court after hearing both the sides, rejected the request on the ground that the evidence on the plaintiff's side is long over and the defendants also had completed their cross-examination. Affidavit in lieu of examination-in-chief was submitted by Defendant Nos.7, 8, 10 and 11 on 28.01.2010 and suit was pending for cross-examination of these defendants by the plaintiff. At that stage, the plaintiff moved such an application, which was set aside. Again that was no stage for adducing evidence without specifying the reasons and without a request for re-opening of his right to give an evidence after being closed. Resultantly, the application is rejected and hence, this petition.
6. Heard learned advocate Mr. Sanjay Mehta for the petitioner, Ms. Anushree Kapadia learned advocate for respondent Nos. 5.2.1, 7, 7.2.2, 7.2.3, 10 and 13 and Mr.N. K. Majmudar, learned advocate for respondent No.4.
7. The order impugned denying permission was passed on 28.07.2010, after nearly one year of preferring such an application by the plaintiff. However, in the application there is neither any reference of the direction of this Court nor has the reason pointed out for choosing the stage at which such an application has been given. The Income-Tax Officer is requested to be summoned with the document of Ward no.8(2). In the above circumstances, the Court deemed it fit not to grant the relief sought for.
8. On account of the non specification of the stage as also whether the witness to be summoned is as a production witness or as a witness as also for not having clearly mentioned his address, petitioner could have been relegated to the Trial Court for complying with these requirements, without deciding on merit. However, when this Court in the earlier petition had permitted the petitioner herein (original plaintiff) to prove the documents produced by it on lawful means, one of the means would be by examining either through production witness or by calling the witness. As Form No.16-A is sought to be proved through the Income Tax Officer in whose custody the document lies, he will be the person who can be called as a production witness. And, therefore, the challenge to the request of proving the document by calling the witness from the Income Tax Department must succeed. In wake of the order passed by this Court earlier, and having allowed the petitioner to produce a document on record and also having denied him to adduce additional examination-in-chief and when the Court permitted him to prove such a document by a lawful means, it is one of the lawful means the petitioner has resorted to. And, therefore, such a right having been conferred upon him by virtue of the direction of this Court and when not challenged by any party before the Higher Forum, the order impugned requires interference. Presently in the suit, the stage is of the cross-examination of original defendants No.6, 7, 8 and 12.
9. The petitioner herein shall make an application before the Court concerned fulfilling all requirements mentioned hereinabove and such a permission shall be granted at an appropriate stage as the Court may deem fit. All rights of the respondents herein-the original defendants as directed in the earlier petition, for objecting to acceptance of the said documents in a lawful manner, are kept open.
10. The petition stands disposed of accordingly.
(Ms.
SONIA GOKANI, J.) MEHUL Top