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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7018 OF 2015
1. Vilas s/o Rangnath Warpe,
Age-44 years, Occ. Agril.,
2. Sopan s/o Ambadas Warpe,
Age-40 years, Occ. Agril.,
Both R/o Savali-Vihir (Kh),
Tq. Rahata, Dist. Ahmednagar. ... Petitioners
Vs.
1. Saurabh s/o Bharat Chavan,
Age-15 years, Occ. Education,
Since Minor, represented through,
natural guardian mother,
Sau. Meena Bharat Chavan,
Age-35 years, Occ. Household,
R/o Savali-Vihir (Kh), Tq. Rahata,
Dist. Ahmednagar.
2. Sadashiv s/o Rangnath Chavan,
Age-55 years, Occ. Agril,
R/o as above. ... Respondents
----
Mr. C.K. Shinde, Advocate for the Petitioners.
Mr. S.S. Chapalgaonkar, Advocate for the Respondents.
----
CORAM : P.R. BORA, J.
DATE : 03-04-2017.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard finally
with consent of the learned counsel appearing for the parties.
2. The order passed by the learned Civil Judge Senior
Division, Kopargaon on 01.07.2015 below exhibit-73 in Special Civil
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Suit No. 19 of 2013 is challenged in the present petition.
3. The aforesaid application was filed seeking leave of the
Court for adducing the oral evidence of Vilas s/o Rangnath Warpe
i.e. petitioner no. 1 in the present petition, who is defendant no.1 in
the civil suit. It was the contention of the petitioner in the said
application that, though, defendant no.3 in his evidence before the
Court has deposed that he was also deposing on behalf of
defendant no.1, in his cross-examination he has shown ignorance of
about some of the facts which are in the special knowledge of
defendant no.1. It was the contention of petitioner no.1 before the
trial Court that, to that extent he needs to be permitted to adduce
his evidence before the Court, however, the said application has
been rejected by the trial Court vide the impugned order. The trial
Court has held that, allowing the defendant no.1 to now enter into
witness box will have the effect of wiping out the admissions given
by defendant no.3, in his cross-examination which may prejudicially
affect the case of the original plaintiff.
4. Shri C.K. Shinde, the learned counsel appearing for the
petitioner submitted that petitioner no.1 intends to depose before
the Court, the only facts which are in his personal knowledge
relating to the first sale deed executed on 12.08.2008 by defendant
no.2 in favour of defendant no.1.
5. Shri Chapalgaonkar, the learned counsel appearing for
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the respondents has supported the impugned order stating that,
through-out the defendant nos. 1 and 3 are jointly defending the
suit. The learned counsel submitted that, even the application at
exhibit-73 was jointly filed by both these defendants. The learned
counsel submitted that, from the application it is not clear as to
what extent the evidence is sought to be adduced by the witnesses
to be examined. In such circumstances, the trial Court has rightly
rejected the application.
6. After having considered the submission, it appears to
me that, if the petitioner no.1 is allowed to adduce his oral evidence
in respect of first sale transaction dated 12.08.2008 which is
admittedly in his special knowledge, no prejudice is likely to be
caused to the present respondent i.e. original plaintiff. To that
extent, the request made by the petitioner no.1 needs to be
accepted. Hence, the following order is passed.
ORDER
i) The impugned order dated 01.07.2015 passed by learned Civil Judge Senior Division, Kopargaon below exhibit-73 in Special Civil Suit No. 19 of 2013 is set aside.
ii) The learned C.J.S.D. shall permit petitioner no.1 i.e. original-defendant No.1 to adduce his oral evidence restricted to first sale transaction dated 12.08.2008 and the facts which are in his special ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:35 ::: 4 8 wp 7018.15.odt knowledge.
iii) Writ petition stands allowed to the aforesaid extent.
(P.R. BORA) JUDGE mub ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 01:02:35 :::