STATE OF GUJARAT Vs. UNION OF INDIA

JUDGEMENT

(1.) By way of this petition under Article 227 of the Constitution of India, the petitioners herein - original plaintiffs have prayed for an appropriate writ or order to quash and set aside the impugned order passed by the learned Judge, Commercial Court, Vadodara, dated 03.11.2017, below Ex.71, in Commercial Civil Suit No.247/2016, by which the learned Judge has rejected the said application preferred by the original plaintiffs which was preferred under Order 7, Rule 14 read with section 151 of the Code of Civil Procedure, 1908 ("CPC" for short) for seeking permission to place certain documents on record and further to seek permission to exhibit those documents, which were produced vide list at Ex.72.

(2.) The facts leading to the present Special Civil Application in nutshell are as under: 2. 1 That the petitioners herein - original plaintiffs (hereinafter referred to as the original plaintiffs) initially instituted Special Civil Suit No.51/2011 against the respondents - railway authorities, in the Court of learned Principal Senior Civil Judge, Dahod, for recovery of Rs. 36, 89, 79, 820/- along with interest @ 18% p.a. It appears that the said amount is claimed as due towards the usage of water from "Kali" river for domestic and non-domestic purposes by the defendants - railway authorities. It is the case on behalf of the plaintiffs that for the aforesaid purpose, an agreement has been entered into between the parties on 15.07.1971 and the rates were also fixed payable on monthly basis. It is the case on behalf of the plaintiffs - State authorities that the Railways - original defendants had constructed a dam across Kali river. It is the case on behalf of the plaintiffs, so stated in the suit, that river Kali would fall in the category of being a notified river under Section 5 of the Bombay Irrigation Act, as per the map and Yadi of Notified rivers. It is also stated in the Plaint that Kali river flows from village Sakarada which confluences with river Suki at the overhead villages Jekot and Kharod and thereafter at a distance of thirty kilometers, river Kali confluences with river Anas and therefore, river Kali is a notified river. It is further case on behalf of the plaintiffs that earlier, the defendants - railway authorities never denied or disputed the payment till June 1995 and as such, they abided by the terms and conditions of the agreement and they paid the bill amount for river Kham and river Hadap. However, thereafter, the amount of bill in terms of the agreement has not been paid for the water usage from Kali river and therefore, the plaintiffs instituted the aforesaid suit claiming usage charges from the defendants - railway authorities. It appears that thereafter, the learned trial Court framed the issues in the year 2012. Parties to the suit also led the evidence. However, thereafter, the suit came to be transferred to the Commercial Court, Vadodara, where it has been numbered as Commercial Civil Suit No.247/2016. In the said suit, the plaintiffs submitted the application Ex.71 for seeking permission to place certain documents on record and to seek permission to exhibit the said documents. Along with the application, the plaintiffs submitted certain documents vide list Ex.72. By the said application, the plaintiffs proposed to rely upon the following documents and requested to exhibit said documents: <FRM>JUDGEMENT_92_LAWS(GJH)5_2018_1.html</FRM> 2. 2 It appears that the said application was preferred under Order 7, Rule 14 read with section 151 of the CPC. The said application was opposed by the defendants by submitting that as those documents were produced along with suit, the same cannot be permitted to be relied upon subsequently. It was also further submitted that though the trial Court has specifically framed Issue No.2, namely, "whether the plaintiffs prove that 'Kali river' is a notified river under Section 5 of the Bombay Irrigation Act?" and though it is the duty cast upon the plaintiffs to prove the said issue, the plaintiffs have led any evidence and/or produced any evidence due to sheer negligence and therefore, when the plaintiffs have submitted the closing Purshis, thereafter the plaintiffs may be permitted to produce on record the document and/or documents which were produced along with the suit. It was also submitted that even the plaintiffs have also produced the original documents. That by impugned order, the learned Judge, Commercial Court, Vadodara, has rejected the said application Ex.71 on the grounds that the said application has been filed at a belated stage; that the documents are pleaded in the Plaint; that the said documents are true copies and the original ones; that the provisions of Order 7, Rule 14 of the CPC shall be applicable to the Commercial Courts; and that if such type of application is entertained at belated stage, then the object of enacting the Commercial Courts Act would be defeated as the very object of the Act is to decide the matters expeditiously. 2. 3 Feeling aggrieved and dissatisfied with the impugned order passed by the learned Judge, Commercial Court, Vadodara, rejecting the application under Ex.71, the original plaintiffs - State of Gujarat and others have preferred the present Special Civil Application under Articles 226 and 227 of the Constitution of India.

(3.) At this stage, it is required to be noted that as such, the present petition is against the impugned order passed by the learned Civil Court - Commercial Court and as per the decisions of the Hon'ble Supreme Court, a petition against the order passed by the learned Civil Court/Commercial Court would be only under Article 227 of the Constitution of India and therefore, the present petition is to be treated as having been filed under Article 227 of the Constitution of India.