Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Guj) 1243

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
N.V. ANJARIA, DEVAN M. DESAI, JJ.
Dhaval Enterprise – Petitioner
Versus
Gopal Industries – Respondent
R/Special Civil Application No. 6148 Of 2023
Decided On : 03-11-2023

Advocates Appeared:
For the Petitioner: MR DHAVAL D VYAS.
For the Respondent: MR ARJUNSINGH B CHAUHAN.

The burden of proof lies on the party asserting facts, and it cannot rely on the documents of the opposing party to fill gaps in its case.

Headnote:(A) Constitution of India - Article 227 - Negotiable Instruments Act, 1881 - Section 138 - Indian Evidence Act, 1872 - Section 101 - Recovery Suit for goods sold - Petitioner sought witness summons to Income Tax and GST Departments to produce documents to prove transactions, which respondents denied - Court ruled that petitioner must prove its case independently without relying on defendants’ documents, emphasizing that the burden of proof lies on the party asserting the affirmative - The trial court denied the application, stating that the petitioner was unable to provide required evidence - The trial court's order was upheld. (Paras 8-18)

(B) Burden of Proof - The court reiterated that the burden of proof lies on the party who asserts the existence of facts and cannot be shifted to the other side, as per Section 101 of the Indian Evidence Act. (Paras 9-10)

Table of Content
1. petitioner's prayer for relief (Para 1 , 2)
2. petition filed under article 227 for witness summons. (Para 3)
3. background and plaintiff's claims (Para 4)
4. documentary evidence needed for the petitioner (Para 5 , 6)
5. respondent's objections to evidence request (Para 7)
6. burden of proof principles explained (Para 8 , 9 , 10 , 11)
7. mandatory nature of witness list submission (Para 12 , 13)
8. impossibility of relying on defendant’s documents (Para 14 , 15)
9. court's decision on evidence and procedure (Para 16)
10. conclusion and dismissal of the petition (Para 17 , 18)

JUDGMENT :

(Devan M. Desai, J.)

By invoking Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:-

“8(a) YOUR LORDSHIPS may be pleased to issued an appropriate writ, order or direction by quashing and setting aside the order dated 16.02.2023 passed below Exh.48 in Commercial Suit No.264 of 2022 by the 6th Additional Senior Civil Judge, Surat (Annexure-A);

(b) Pending the hearing and disposal of the petition, the Hon’ble Court be please to stay further proceedings of Commercial Suit No.264 of 2022 pending before 6th Additional Senior Civil Judge, Surat;

2. The prayer in Exhibit 48 application by the petitioner – plaintiff was to issue witness summons to Income Tax Department, Income Tax Office, Majura Gate, Surat and Goods and Services Tax Office, GST Office, Near Navdi Ovara, Nanpara Surat to produce documents and to give evidence.

2.1 Heard learned advocate Mr.Dhaval D. Vyas for the petitioner and learned advocate Mr.Arjunsingh B. Chauhan for the respondents.

3. Rule. Learned advocate Mr.A.B.Chauhan waives service of notice of rule for and on behalf of respondents.

4. The brief facts leading to this petition are as under:-

4.1 The petitioner has filed Recovery Suit against the respondents for the goods supplied to the respondents on various dates. The case of the petitioner is that, the petitioner is engaged in the business of manufacturing and selling of chemicals, whereby the respondent was supplied with the chemicals as per the order of respondent. The business transactions were going on since many years. The petitioner used to issue bill/challan to the respondent, as and when, the goods were sold and delivered. The petitioner filed a Commercial Suit No.264 of 2022 for the recovery of Rs.10,45,613/- for the goods sold and delivered between 03.05.2018 to 24.05.2018. Pursuant to the above transactions, the respondents issued cheque, which was dishonoured with the endorsement ‘insufficient funds’. Thereafter, the petitioner filed a criminal case under Section 138 of the Negotiable Instruments Act before the Chief Judicial Magistrate, Surat bearing Criminal Case No.4676 of 2018.

4.2 In the said suit, the respondents appeared and filed written statement. The Affidavit in lieu of Examination-in-chief under Order XVIII Rule 4 of the CIVIL PROCEDURE CODE , was submitted by the petitioner.

4.3 As per the say of the petitioner, petitioner produced bills and the statement of Bank Account for the year 2018-19 to 2020-22. The grievance of the respondent is that, he has not received goods and also denied the receipt of the goods as per the order. The cross-examination of the petitioner is completed on 04.01.2023. Thereafter, petitioner moved an application Exhibit 48, wherein the petitioner sought witness summons to be issued to the Office of Income Tax Department, Surat and GST Office, for the production and giving evidence for the documents mentioned in the application.

5. Learned advocate for the petitioner has submitted that since the respondents have denied the receipt of the goods to nullify the said contention of the respondent, income tax returns of the defendant for the year 2017-18 and 2018-19, are necessary and vital documents. Further, it is the say of the learned advocate for the petitioner that,

Click Here to Read the rest of this document