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2021 Supreme(Online)(Guj) 1313
HIGH COURT OF GUJARAT
B.N. KARIA, J
SHANTIBHAI MITHABHAI PATEL - SINCE DECEASED – Appellant
Versus
ASHOK BHOGILAL PATEL & 12 other(s) – Respondent
R/SPECIAL CIVIL APPLICATION NO. 5419 of 2015 | R/SPECIAL CIVIL APPLICATION NO. 5420 of 2015
For the Appellants/Petitioners:MR S.N. SHETAL, SENIOR ADVOCATE WITH MR. JAY M THAKKAR
For the Respondents: DECEASED LITIGANT, MS MEGHA CHITALIYA, AGP, MR KV SHELAT, MR SHIVANG M SHAH
The Trial Court erred in allowing reopening of evidence and framing additional issues, contradicting established procedures and principles of diligence in civil litigation.
Headnote:(A) Code of Civil Procedure, 1908 - Order 14 Rules 3 and 5 - Civil Suit for partition filed in 1983 facing delays and procedural irregularities - Plaintiff's failure to attend court and provide evidence leads to abandonment of suit - Orders allowing reopening of evidence and framing of additional issues deemed unjustified. (Paras 4.1, 11, 12, 13)
(B) Trial Court errors - The Court failed to appreciate the prolonged inactivity of the plaintiff and thus mistakenly allowed applications for reopening the stage of evidence and framing additional issues, not required at the final argument stage. (Paras 6, 12, 13)
Facts of the case:
The original plaintiff filed a partition suit in 1983 but failed to consistently attend court for cross-examination and prosecution of his case, leading to numerous adjournments and eventual closure of evidence.
Findings of Court:
The Court noted extensive delays attributable to the plaintiff led to procedural errors by the Trial Court and ruled that the original applications allowing the plaintiff to amend or reopen evidence were without merit.
Issues: The principal issues were centered on the propriety of the orders permitting additional evidence and issues at the final arguments stage.
Ratio Decidendi: The court underscored the necessity of diligence and progress in litigation, asserting the principle that a party may not delay proceedings unduly and later claim rights to introduce further evidence.
Result: Both petitions allowed and orders of the Trial Court quashed.
| Table of Content |
|---|
| 1. negligence in prosecution of civil suit. (Para 4 , 11) |
| 2. diligence required in civil proceedings. (Para 6 , 13) |
| 3. errors in trial court procedures and applications. (Para 7 , 8 , 12) |
JUDGEMENT
1. Rule. Mr.K.V. Shelat, learned advocate waives service of notice of Rule for respondent no.1, Mr.Shivang Shah, learned advocate waives service of notice of Rule for respondent nos.7.1, 7.2 and 8 and Ms.Megha Chitaliya, learned AGP waives service of notice of Rule for respondent nos.12 and 13.
2. As the parties in both the petitions are common and orders challenged in both the petitions are from Special Civil Suit No.295 of 1983 pending before the learned Principal Senior Civil Judge, Vadodara, for the sake of convenience and the issues are connected with the main suit, on a request being made by learned advocates for the respective parties, both the petition are decided by passing common order.
3. In Special Civil Application No.5419 of 2015, present petitioners are original defendant nos.9.2, 9.3 and 9.4, have challenged the legality and validity of the order passed below Exh.508, dated 28.11.2014 by the learned Principal Senior Civil Judge, Vadodara partly allowing the application vide Exh.508 in Special Civil Suit No.295 of 1983. Some of the petitioners in Special Civil Application No.5420 of 2015 have challenged the legality and validity of the orders passed below Exhs.517 and 519 dated 12.01.2015 and 17.01.2015 by the learned Principal Senior Civil Judge, Vadodara in Special Civil Suit No.295 of 1983.
4. Short facts of the present case may be summarized to decide the petitions as under:
4.1 Respondents herein – original plaintiff filed Special Civil Suit No.295 of 1983 and pleadings were concluded by the original plaintiff, and thereafter, the learned Trial Court framed nine issues vide Exh.30 on 29.06.1985. The plaintiff produced his evidence in examination in chief before the learned Trial Court on 11.10.1985. Initially, the plaintiff remained absent before the learned Trial Court for cross- examination i.e. on 08.01.1986 and same parts of his cross- examination were recorded, but some could not be completed because the plaintiff did not attend the Court proceedings regularly and did not make himself available for cross- examination. On 31.01.1986, since cross-examination of the petitioners could not be concluded, proceedings were adjourned time to time for a period of about 15 years. The plaintiff did not remain present before the learned Trial Court and did not offer for his cross-examination which was left incomplete from 08.01.1986. On 08.11.2000, learned Trial Court discarded his evidence. The plaintiff failed to adduce further evidence and hence, the learned Trial Court closed the stage of his evidence on 15.11.2000. Thereafter, defendant nos.1, 3 and 4 also did not lead any evidence, and therefore, learned Trial Court closed the stage of their evidence vide order dated 20.11.2000. Defendant nos.5, 6 and 9 tendered pursis inter alia declaring that the said defendants did not desire to lead any oral evidence, and therefore, on 04.11.2001, evidence of defendant nos.5, 6 and 9 was closed. The plaintiff did not take any action for another 12 years, and therefore, defendants preferred an application vide Exh.487 on 12.10.2012 praying to pass appropriate order in the suit having regard to the fact that original plaintiff has not led any evidence. After filing the aforesaid application Exh.487, plaintiff filed an application vide Exh.492 on 06.02.2013 praying to reopen the stage of cross-examination, which was abundant in the year 1986 and evidence was closed on 15.11.2000. The learned Trial Court, by common order dated 18.04.2013, rejected the application vide Exh.492 preferred by the plaintiff and allowed the application vide Exh.487 preferred by the original
