MALEKBEN MAHMMADBHAI KESHWANI Vs. HAJIBHAI MAHMADBHIA KESHWANI WADIVALA
LAWS(GJH)-2021-2-23
HIGH COURT OF GUJARAT
Decided on February 20,2021

Malekben Mahmmadbhai Keshwani Appellant
VERSUS
Hajibhai Mahmadbhia Keshwani Wadivala Respondents

JUDGEMENT

ASHOK KUMAR JOSHI, J. - (1.) This petition under Articles 226 and 227 of the Constitution of India is filed by the petitioner - original plaintiff seeking to quash and set aside the order dated 10.10.2017, passed by the learned Principal Senior Civil Judge, Mahuva, District: Bhavnagar, below application exh. 55 in Special Civil Suit No. 138 of 2012 / 22 of 2017, whereby, the learned trial Judge has rejected the said application exh. 55 which was filed by the present petitioner - plaintiff with a specific prayer to forward the document, exh. 35 (disputed document in the suit) to the handwriting expert for its verification and report.
(2.) Rule. Learned advocate Mr. Umang Vyas waives service for the respondents. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.
(3.) Heard, learned advocate Mr. S. M. Kikani for the petitioner and learned advocate Mr. Umang Vyas for the respondents. 3.1 The learned advocate for the petitioner - plaintiff has, vehemently and fervently argued that the petitioner - plaintiff has filed aforesaid suit for declaration qua the suit property. It is submitted that during the pendency of the said suit, the petitioner - plaintiff preferred an application exh. 55 on 03.02.2017 with a specific prayer to forward the document, exh. 35 (disputed document in the suit) to the handwriting expert for its verification and report. It is submitted that the petitioner - plaintiff has neither signed and/or executed any document declaring waiving of her right in the property shown in Entry No. 807, nor has issued any such document declaring waiver of her right in the suit property being land bearing revenue survey Nos. 145 paiki and 116 paiki. It is submitted that on the basis of such documents, land shown in Partition Entry No. 1313, Account (Khata) No. 17 is distributed amongst her four brothers. It is submitted that she has never waived her right in the property and the document is disputed and hence, she preferred the aforesaid application exh. 55 before the trial Court concerned under O.26 R.10A of the Civil Procedure Code, 1908 (CPC), however, the learned trial Judge rejected the said application on two counts, firstly, that the document in question is lying with the revenue authority and what is produced before the the (trial) Court is only xerox copy of the same, and secondly, in the given circumstance, the plaintiff has failed to show any provision of law to call for the report of the handwriting expert on the basis of a xerox copy of a document. 3.2 In this regard, the learned advocate for the petitioner drew attention of the Court to O.13 R.10 of the CPC, which reads thus: "10. Court may send for papers from its own records or from other Courts.--(1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same. (2) Every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice. (3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit." 3.3 Relying upon the aforesaid O.13 R.10 CPC, the learned advocate for the petitioner distressed his argument that even a Court can suo motu call for such document, in form of production, so as to meet the ends of justice as well as to inspect such document and therefore, the learned trial Court has committed serious error in not observing such provision of law. 3.4 The learned advocate for the petitioner, further, relied upon O.16 R.6 of the CPC and submitted that any person can be summoned to produce a document and accordingly, submitted that the learned trial Judge has failed to appreciate the said provision of law. 3.5 In support of his submissions, the learned advocate for the petitioner relied upon following decisions rendered by Rajasthan High Court: i) Snehlata v. Parasmal, (1994) DNJ 74, more particularly, paragraphs 2 and 7 thereof; ii) Jai Singh v. Jagdish and Another, (2002) 2 DNJ 838, more particularly, paragraphs 12, 14, 17 and 18 thereof. 3.6 Thus, making above submissions, it is urged that the petition may be allowed and the impugned order may be set aside. ;


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