UJVAL PRODUCTS Vs. STATE

JUDGEMENT

(1.) According to the plaintiff, defendant-Municipal Corporation has illegally issued a notice to the plaintiff to close down the business without following any procedure and without affording an opportunity of hearing to him. He was, therefore, constrained to file Regular Civil Suit No. 897/91 in the Court of Civil Judge (S.D.), Rajkot and obtained injunction in an application Exhibit-5. During the pendency of the proceedings, he made an application under the provisions of Order 11 Rule 12 read with Rule 14 and Order 41 and Rule 33 of the Code of Civil Procedure (hereinafter referred to as the "Code") for production of certain documents.

(2.) It is the case of the plaintiff-applicant that some proceedings have been initiated by an Officer other than the Commissioner, whereas under the provisions of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the "Act") only the Commissioner has such power. It is also stated by the plaintiff that no doubt under Section 376 of the Act, Commissioner has power to delegate his authority, but in that case, such delegation and/or authorisation also must be produced. The Officer has also relied upon certain documents in the nature of notice and report, no such documents have been furnished to him. The trial Court rejected the application, inter alia on the ground that it was belated and not necessary since it was at the appellate stage such application was given. In other words, according to the trial Court, it was belated. Mr. Thakkar, learned Counsel for the applicant vehemently contended that there is an error of jurisdiction committed by the trial Court in observing that the matter was at the appellate stage. No doubt, it was an appeal but it was not a regular appeal. The suit is yet to proceed. It was merely a miscellaneous appeal filed under the provisions of Order-43 Rule-1 of the Code. He further submitted that the lower appellate Court has misconstrued the ratio laid down by the Hon'ble Supreme Court in the case of Gopal Krishnaji v. Mohmed Haji Latif reported in AIR 1968 SC 1413. In the case, the Supreme Court observed that irrespective of the doctrine of burden of proof, it is always incumbent on the part of the party in whose possession the documents are, to produce the same. Here, when the documents are in possession of the Corporation and the suit is yet to be decided on merits, there was no reason for the court to reject such application....

(3.) In my opinion, the submission made by the learned Counsel for the applicant is well founded. Hence, according to me, the lower appellate Court has committed an error of jurisdiction in rejecting the application and in not granting the prayer made by the plaintiff....