MANSUKHLAL NANJIBHAI DEVANI Vs. ALKABEN GOKALDAS RAJA

JUDGEMENT

(1.) The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking the following reliefs:

(2.) It is the case of the petitioners that the petitioners are owners and occupiers of residential building purchased from one Madhukar Kanjibhai Mehta by way of registered sale deed in the year 1987. On the eastern side of the said property, City Survey Nos.53 and 4949 are situated, which are of the ownership of Kanubhai Kanji Mehta consisting of common veranda, common way and common room to be enjoyed by both of them without any hindrance and Kanubhai sold the said property to the respondent herein in 2004. It is case of the petitioners that despite the aforesaid situation, the respondent tried to make construction jeopardizing the rights of the petitioners to enjoy the common amenities and, therefore, the petitioners filed a civil suit in the Court of Principal Civil Judge, Jetpur along with an application for injunction. During the course of evidence of the defendant, the petitioners filed an application at Exh.123 seeking permission to produce certain documents mentioned in the list of documents at Exh.124. However, learned trial Judge after hearing, rejected the said application which is made the subject matter of the present Special Civil Application.

(3.) Learned advocate, Mr. Jayesh Kotecha appearing on behalf of the petitioners has contended that xerox copies of the documents which were forming part of the record were very relevant to decide the controversy involved in the suit proceedings, however, the learned Judge, instead of going into technicality, ought to have allowed the petitioners to produce the same on record. It has been further submitted that by virtue of Order 13, Rule 1 of the Code of Civil Procedure, the request ought not to have been rejected, as a result of this, the order passed by the court below being unjust and improper requires to be corrected. It has been further contended that in view of the decision reported in 1994 LawSuit (SC) 131 in the case of Billa Jagan Mohan Reddy Vs. Billa Sanjeeva Reddy, even at the stage of arguments, the Hon'ble Apex Court has considered the request and allowed the documents to be brought on record, as a result of this, the request ought to have been considered by the court below and this being the error of jurisdiction, the same deserves to be corrected by quashing and setting aside the impugned order.