BIREN VAISHNAV,J. - (1.) The original plaintiff is before this Court challenging the orders passed below applications Ex. 168 and Ex. 169 dated 22.02.2010 and 11.02.2010 respectively passed in Special Civil Suit No. 141 of 1998. By the aforesaid orders, the Second Additional Civil Judge, Jamnagar rejected the applications of the original plaintiff to bring on record and exhibit documents Mark 4/1 and Mark 160/1 to Mark 160/10.
(2.) Facts are as under: 2. 1 The plaintiff has filed a Special Civil Suit No. 141 of 1998 against the defendants for specific performance of two agreements dated 17.03.1986. The petitioner - plaintiff's case before the trial Court is that the respondent no. 1 - defendant had by such agreements entered into with the plaintiff agreed to sell two parcels of land in Jamnagar. According to the agreements entered into between the parties, the plaintiff was supposed to construct 21 flats and a few shops over the land. It was agreed between the parties that the petitioner - plaintiff would sell the constructed shop and flats and the defendants - respondents would sign as transferring party the deed of conveyance in favour of such third party. The amount received by the petitioner would be adjusted towards consideration to be paid to the defendants for purchase of the lands in response to the agreement to sale. The plaintiff further pleaded that after the construction of shops and flats known as 'Snehdhara Appartments', the petitioner plaintiff had produced different agreements entered into between the parties at Marks 22/1 to 22/14. Since the defendant did not perform his part of the contract to execute the sale deeds in favour of the third parties, the suit was so filed for specific performance. 2. 2 On behalf of the plaintiff, her power-of-attorney one Mr. Yogesh Popat appeared and gave his deposition at Ex. 104. The deposition is on record. Photocopy of the partnership's registration was produced at Mark 4/1. According to the petitioner, even xerox copies of Marks 22/1 to 22/14 were a part of the testimony of the plaintiff. 2. 3 The plaintiff filed applications at Exs. 159 and 160 seeking to produce originals on record. By an order dated 30.06.2009, originals were permitted to be produced. Thereafter, on 16.07.2009, the evidence of the plaintiff was closed and on 23.09.2009, the defendant's evidence was closed and the matter was posted for final arguments. 2. 4 It is at this stage that the petitioner - plaintiff on 11.02.2010 made applications at Ex. 168 &169. It was the case of the petitioner that by oversight the documents at Marks 4/1 and 160/1 to 160/10 could be exhibited. He, therefore, asked for permission to exhibit such documents. The defendant filed his objections at Ex. 170 stating that the petitioner - plaintiff was aware of the documents and photocopies were produced right at the beginning when the plaint was filed. That when the evidence of the plaintiff began, it was for the plaintiff to have these documents exhibited so as to prove them, however, now after the stage of the evidence is closed and the case is listed for final arguments, such an application is made which is proper. 2. 5 By the impugned orders, the Court rejected such applications holding that the application was filed at the stage of final arguments; that the plaintiff had examined himself at Ex. 104; he had remained present at the stage of cross examination as a result of which the stage was closed. It was reopened on an application at Ex. 145 at which stage no such request was made. After the parties were examined and the stage of evidence was closed and the Court listed the suit for final arguments, such an application is maintainable. 2. 6 With regard to the contention of the plaintiff that it could cause prejudice to the defendants, it was observed by the trial Court that once the evidence was reopened at the hands of the plaintiff, the plaintiff was cross examined, permission to exhibit such documents would tantamount to reopening the stage which was closed and therefore it was improper to entertain such an application. This order is under challenge.
(3.) Mr. Vivek Mapara, learned advocate appearing on behalf of the petitioner contended that once by applications Ex. 159 &160, the Court granted permission to produce the originals on record, by order dated 30.06.2009, there was no reason why the trial Court ought to have rejected the application to exhibit such documents. Mr. Mapara further contended that the documents at Mark 4/1 and Marks 22/1 to 22/10 were duly proved by the testimony of the plaintiff at Ex. 104 and therefore it was incorrect for the trial Court to contend that prejudice would be caused or that the exercise would tantamount to reopening the exercise of examining the witnesses. 3. 1 Mr. Mapara relied on section 74 of the Indian Evidence Act, 1872 and contended that the registered partnership agreement and the documents at Marks 160/1 to 160/10 were public documents and therefore were exempt from being proved through witnesses as their existence was itself never in doubt. Mr. Mapara further pointed out that at best the defendant should be awarded costs and the documents be permitted to be exhibited particularly when the documents were permitted to be produced vide Exs. 159 &160. What was sought to be cured was a procedural defect. ;