DEVJI BHAI MEGHBHAI KARAI Vs. SUNIL MARESHWAR DESAI

JUDGEMENT

(1.) THE present Special Civil Application under has been preferred by the petitioner-original plaintiff to quash and set aside the impugned order dated 15/12/2010 passed by the learned Principal Civil Judge, Dharampur below application, Exh. 229 in Regular Civil Suit No. 5/1995 and allow the said application in full by giving exhibit number to the document, bearing Mark 129/6 - tentative exh no. 205.

(2.) THE petitioner-original plaintiff had instituted Regular Civil Suit No. 5/1995 in the Court of learned Principal Civil Judge, Dharampur seeking permanent injunction against the original defendants of the suit. It is the case on behalf of the petitioner-original plaintiff that the suit property was rented by the petitioner-original plaintiff since 1951-52 and ever since then the petitioner-original plaintiff has been in independent and uninterrupted possession of the suit property. After the issues were framed, the petitioner-original plaintiff produced the list of documents, inclusive of the document at Mark 129/6 i.e. certified copy of the electoral roll, which was given by Mamlatdar, Dharampur, which can be said to be public document. However, it appears that there was some overwriting on the said document and, therefore, the original defendants objected to exhibiting the said documents and, therefore, at the relevant time, the same was not given exhibit number. It appears that thereafter during the examination in chief by the petitioner-original plaintiff, the document, Mark 129/6 was given tentative exhibit number 205 subject to proving the contents on leading evidence. It appears that the petitioner-original plaintiff was not satisfied with the order passed by the learned trial Court in not exhibiting the documents at Mark 129/6 and, therefore, the petitioner-original plaintiff preferred Special Civil Application before this Court, being Special Civil Application No. 405/2010. However, in the meantime and/or before the document was already ordered to be given tentative exhibit number, subject to proving the contents, the petitioner withdrew the said Special Civil Application. THEreafter, the petitioner-original plaintiff had again given application, Exh. 229 requesting to give regular exhibit number to the aforesaid document, Mark 129/6-tentative exh no. 205 and in the alternative to issue summons to the Electoral Officer, Dharampur alongwith necessary documents to prove the contents of the said document. By the impugned order, the learned Principal Civil Judge, Dharampur has rejected the said application, Exh. 229 by observing that the said prayer is at belated stage and the evidence of the petitioner-original plaintiff is closed and the evidence of the original defendants is also over. Being aggrieved and dissatisfied with the impugned order passed by the learned Principal Civil Judge, Dharampur dated 15/12/2010 in Regular Civil Suit No. 5/1995, the petitioner-original plaintiff has preferred the present Special Civil Application under Article 227 of the Constitution of India.

(3.) THE present petition is vehemently opposed by Shri J.T. Trivedi, learned advocate appearing on behalf of the respondents-original defendants. It is submitted by Shri Trivedi, learned advocate appearing on behalf of the respondents-original defendants that as such the application submitted by the petitioner-original plaintiff at Exh. 229 is barred by res judicata/constructive res judicata. It is submitted that when earlier the application was given by the petitioner-original plaintiff to give exhibit number to the document in question, which was rejected by the learned trial Court, against which the petitioner preferred Special Civil Application before this Court, which came to be withdrawn by the petitioner-original plaintiff and before that the order was also passed to give tentative number to the document in question, it was open for the petitioner-original plaintiff to make submission before this Court in the aforesaid Special Civil Application to issue summons upon the Electoral Officer, Dharampur to prove the contents, which the petitioner did not make and, therefore, such a prayer of the petitioner now is barred by res judicata. Shri Trivedi, learned advocate appearing on behalf of the respondents-original defendants has relied upon the decisions of the Honble Supreme Court in the case of Satyadhayan Ghosal and Ors. Vs. Smt. Deorajin debi and Anr reported in AIR 1960 SC 941, in the case of Arjun Singh Vs. Mohindra Kumar and Ors. reported in AIR 1964 SC 993 as well as the decision of the Honble Supreme Court in the case of M. Nagabhushana Vs. State of Karnataka & Ors. reported in 2011 (2) Scale 160 with respect to the above submission with respect to res judicata.