SAMA PIYUSHBHAI SHAH Vs. MADANLAL HASTIMAL RATHI

JUDGEMENT

(1.) Rule. Learned advocates appearing for the respective respondents waive service of notice of rule. Being aggrieved and dissatisfied with the order passed below Exh.28 in Regular Civil Suit No.766 of 2018 by learned 6th Additional Civil Judge and JMFC, Baroda, allowing the application preferred by the Police Inspector of DCB Police Station, Baroda City, the petitioner-original plaintiff has preferred present petition.

(2.) Short facts giving rise to the present petition are that the petitioner is original plaintiff who has preferred Regular Civil Suit No.766 of 2018 seeking declaration and permanent injunction with respect to the Will executed by the deceased Indira Betiji on 1.11.2015 and also prayed to allow the plaintiff to do the work as enumerated in the Will dated 1.11.2015, as defendants made obstruction against the plaintiff. It is also the case of the petitioner that, along with the plaint, all documentary evidence including the copy of Will and details in respect of the correspondences made with police agency were annexed with the plaint and injunction application under Order 39, Rule 1 and 2 was filed. It is the contention of the plaintiff that, after service of summons, the defendant appeared through their advocate and on different occasions sought time to file written statement but they have not filed the same. It is also contended that the plaintiff has filed purshis at Exh.21 since an absolute false FIR has been filed and such FIR was also registered with DCB Police Station as I-C.R.No.20/2018 for the offence under Section 406, 420, 506 (2) and 120 (B) of IPC for which the petitioner was constrained to approach this Court for seeking writ under Section 439 and the bail to the petitioner was granted on 1.11.2018. It is also contended that as there was likelihood of filing of another false case since the applications are repeatedly made time and again with respect to the same issue and also attempted to collect the original documents from the petitioner, she has submitted purshis at Exh.21 to allow her to place on record the original documents and to place the same in the safe custody of Nazir of the Court. It is contended that that application was allowed and original deed was kept in the custody of Nazir. It is contended that subsequently the application was submitted by the Police Sub Inspector, DCB Police Station vide Exh.28 seeking original Will for investigation purpose. The same was opposed by the petitioner by filing written objections. However, the learned trial Court has granted the prayer of the Police Sub-Inspector and ordered to hand over the original Will to the investigating officer. According to the petitioner, the trial Court has committed serious error of facts and law in passing the impugned order. It is contended that the defendants are not filing any written statement and through police agency they are trying to harass and pressurize the petitioner. It is also contended that there is serious apprehension and likelihood of tampering with the original Will, which was kept in the safe custody of the Court. It is also contended by the petitioner that the matter is sub-judice before the competent civil court and the Court below ought not to have allowed said application at Exh.28. It is also contended that the suit is yet to be tried and evidence is yet to be laid and even reply is also yet to be filed by the defendants. It is submitted that learned trial Court has committed serious error of law and facts, which requires to be corrected and the impugned order is required to be set aside.

(3.) Heard learned counsel Mr.Mehul S. Shah appearing with Mr.Ashish Dagli for the petitioner, Mr.Yogesh Lakhani, learned Senior Counsel appearing with Mr.Jay Thakkar for respondent nos.1, 4, 5 and 6 and learned Senior Counsel, Mr.Mihir Thakore appearing with Mr.Salil Thakore for respondent no.3. Though respondent no.2 is served, he chose not to appear. Perused the material placed on record.