RUKHIBEN MALJIBHAI Vs. ABDULKAIYAM ABDULMAZID DAUD

JUDGEMENT

(1.) RULE. Mr. Suresh M. Shah, learned advocate, waives service of notice of Rule on behalf of the respondent. This petition has been preferred, invoking the provisions of Articles 226 and 227 of the Constitution of India, with a prayer to quash and set aside order dated 07. 04. 2006 passed below Exhibit 106 and order dated 08. 05. 2007, passed below application at Exhibit 146, in Regular Civil Suit No. 36 of 2001 by the Trial Court, whereby the said applications have been rejected.

(2.) THE challenge to the order passed below application Ex. 106 has not been pressed by the learned counsel for the petitioner and the prayer made in the petition is restricted to the challenge to order dated 08. 05. 2007 rendered below Ex. 146.

(3.) THE brief facts of the case, emerging from the material on record, are that the petitioner, who is the original plaintiff, filed the abovementioned Suit for declaration and permanent injunction, inter alia, with the prayer to set aside Sale Deed dated 24. 08. 1992. It is the case of the petitioner that she is the owner, by succession, of land situated in Survey No. 80 admeasuring 1 Hectare 21 Are and 24 Gunthas, in village Santrampur. According to the petitioner, she had executed an Agreement to Sell on 10. 03. 1991, in respect of the suit land in favour of the respondent, for a consideration of Rs. 1,27,000/ -. Pursuant thereto, the respondent initially paid Rs. 27,000/- and the remaining amount of Rs. 1,00,000/- was to be paid after the conversion of the land for non-agricultural purposes. However, no time limit was prescribed for the said purpose and, according to the petitioner, the suit land is in her possession. The execution of any Sale Deed in favour of the respondent is denied and the petitioner has sought the relief of setting aside the registered Sale Deed dated 24. 08. 1992, qua the suit land, which has been executed in favour of the respondent. In the above-mentioned suit, the petitioner filed an application at Ex. 106 under the provisions of Order 11 Rule 12 of the Code of Civil Procedure ("the Code" for short) for discovery of documents, which came to be dismissed by order dated 7. 4. 2006. The challenge to this order has been given up by the learned counsel for the petitioner, which is reflected from a perusal of order dated 12. 11. 2008 of this Court. The petitioner filed the application at Ex. 146 with a prayer to exhibit the xerox copy of the Agreement to Sell entered into by her in favour of the respondent, with a prayer to treat it as secondary evidence. This application has been rejected by the impugned order, giving rise to the filing of the petition. Mr. Nilesh A. Pandya, learned counsel for the petitioner, has made the following submissions: