1 jg.wp5702.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
Writ Petition No. 5702 of 2016
1. Smt. Indrakanta w/o Rajaram Patil,
Aged 74 years, Occupation Household;
2. Pramod s/o Rajaram Patil,
Aged 49 years, Occupation Service;
3. Prashant s/o Rajaram Patil,
Aged 46 years, Occupation Service;
All residents of Plot No. 152, Gurudeo
Nagar, Nagpur.
4. Sainath Cooperative Housing Society,
Sudam Puri, Dahi Bazar, Sakkardara,
Umred Road, Nagpur, through its
Secretary Shri Shankar Damodhar Dhande. .... Petitioners/Ori. Defendants
2 to 4
// Versus //
1. Satywatibai wd/o Suresh Patil,
Aged 67 years, Occupation Agriculturist;
2. Ms. Anjali d/o Suresh Patil,
Aged 43 years, Occupation Student;
3. Ms. Archana d/o Suresh Patil,
Aged 40 years, Occupation Student;
4. Ms. Asha d/o Suresh Patil,
Aged 38 years, Occupation Student;
5. Ms. Kiran d/o Suresh Patil,
Aged 36 years, Occupation Student;
6. Master Sandeep s/o Suresh Patil,
Aged 28 years, Occupation Student;
7. Ms.Kanchan d/o Suresh Patil,
Aged 32 years, Occupation Student;
All residents of Plot No. 116,
Subhedar Layout, Nagpur. .... Respondents/Ori. Plaintiffs
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Shri A. C. Dharmadhikari, Advocate for the petitioners
Shri A. D. Mohgaonkar, Advocate for the respondents
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CORAM : Z. A. HAQ, J.
DATE : 27/04/2017 .
ORAL JUDGMENT :
Heard.
2. Rule. Rule made returnable forthwith.
3. Original defendants (appellants before the District Court) have filed this petition challenging the order passed by the District Court by which the application (Exhibit No. 10) filed under Order 41 Rule 27 of the Code of Civil Procedure is dismissed.
4. In the civil suit filed by the respondents/plaintiffs praying for decree for declaration, partition, separate possession and perpetual injunction in respect of property owned by Kamlabai, grandmother of the defendant nos. 2 and 3 and mother-in-law of the defendant no. 1 and grandmother of plaintiff nos. 2 to 7 and mother-in-law of plaintiff no. 1, the defendants raised the defence that the suit property was given to them by deceased Kamlabai by the registered will deed dated 24-7-1989. The civil suit is decreed in favour of the plaintiffs. The defence of the defendants relying on the will deed dated 24-7-1989 is not accepted by the trial Court as the attesting witnesses are not examined. By the application (Exhibit No. 10), the defendants sought permission to examine the attesting witnesses Madhukar Pullarwar and Chandrashekhar Lacharwar. This application is ::: Uploaded on - 11/05/2017 ::: Downloaded on - 28/08/2017 00:41:41 ::: 3 jg.wp5702.16.odt dismissed by the District Court observing that the defendants have failed to show that in spite of exercise of due diligence, they could not produce above named witnesses for examination during the trial of the suit.
5. After hearing the learned Advocates for the respective parties and considering the documents filed on the record of the petition, I find that the petitioners-defendants have stated in paragraph no. 14 explaining why the witnesses could not be produced earlier. In paragraph no. 8 of the impugned order, the learned District Judge has recorded that the witness summons was served on Madhukar Pullarwar but he had not attended the Court for giving evidence. It is recorded that the witness summons of Chandrashekhar Lacharwar could not be served as his address was insufficient. In paragraph no. 9 of the impugned order, the learned District Judge has recorded that the defendants had not taken any steps to produce the above named witnesses. In paragraph no. 10 of the impugned order, the learned District Judge has observed that the suit was filed in 1992, it was decided on 14-12-2006, the appeal is filed on 7-3-2007 and then the application (Exhibit No. 10) came to be filed on 5-5-2010 and these facts show that the defendants had not been vigilant in pursuing the matter. The learned District Judge has not considered the explanation given by the defendants in paragraph no. 14 of the application. In my view, the learned District Judge has taken pedantic view. The learned District Judge should ::: Uploaded on - 11/05/2017 ::: Downloaded on - 28/08/2017 00:41:41 ::: 4 jg.wp5702.16.odt have taken a pragmatic view. The learned District Judge should have allowed the application (Exhibit No. 10) and should have granted an opportunity to the defendants to produce additional evidence.
6. In my view, the following order would sub-serve the ends of justice:
(i) The impugned order is set aside. (ii) The application (Exhibit No. 10) filed by the defendants is allowed.
The defendants are permitted to produce additional evidence.
(iii) The learned District Judge shall pass appropriate orders regarding the examination of the witnesses i.e. Madhukar Pullarwar and Chandrashekhar Lacharwar.
(iv) Rule is made absolute in above terms. (v) Considering the facts of the case and inconvenience caused to the
plaintiffs, the defendant nos. 1 to 3 shall pay costs quantified at Rs. 25,000/- to the plaintiffs and produce receipt on record of the appeal before the District Court within one month.
(vi) If the amount is not paid within one month, this order shall stand recalled and the learned District Judge shall decide the appeal on merits.
(vii) If the amount of costs is paid within stipulated time, the learned District Judge shall expedite the proceedings.
JUDGE wasnik ::: Uploaded on - 11/05/2017 ::: Downloaded on - 28/08/2017 00:41:41 :::