1 WP - 3101-2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3101 OF 2014
Laxmikant S/o. Ramchandra Thombre,
Age : 79 years, Occu.: Agri. & Advocate,
R/o. Osmanabad, Tq. & Dist. Osmanabad .. Petitioner
(Orig. Plaintiff)
Versus
1) Suryakant S/o. Maruti Kokate (died)
through his LRs.
1A. Smt. Pusplata W/o. Suryakant Kokate,
Age : Major, Occu. Household,
R/o. Ingle Galli, Osmanabad,
Tq. & Dist. Osmanabad
1B. Pramod S/o. Suryakant Kokate,
Age : Major, Occu. Agriculture,
R/o. As above
1C. Pravin S/o. Suryakant Kokate,
Age : Major, Occu. Agriculture,
R/o. As above
1D. Pratibha D/o. Suryakant Kokate,
Age : Major, Occu. Agriculture,
R/o. As above
2) Chandrakant S/o. Maruti Kokate,
Age : Major, Occu. Agriculture,
R/o. Ingle Galli, Osmanabad,
Tq. & Dist. Osmanabad
3) Vishwas S/o. Maruti Kokate,
Age : Major, Occu. : Agriculture,
R/o. As above
4) Balasaheb S/o. Maruti Kokate (Died)
Through his LRs.
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2 WP - 3101-2014
4A. Ravindra S/o. Balasaheb Kokate,
Age : Major, Occu. Agriculture,
R/o. Ingle Galli, Osmanabad,
Tq. & Dist. Osmanabad
4B. Shrikant S/o. Balasaheb Kokate,
Age : Major, Occu. Agriculture,
R/o. As above
5) Sunil S/o. Maruti Kokate,
Age : Major, Occu. Agriculture,
R/o. As above
6) Bharat S/o. Maruti Kokate,
Age : Major, Occu. Agriculture,
R/o. As above
7) Sampat S/o. Maruti Kokate,
Age : Major, Occu. Agriculture,
R/o. Ingle Galli, Osmanabad,
Tq. & Dist. Osmanabad .. Respondents
(Orig. Defendants)
...
Mr. S.G. Chapalgaonkar, Advocate for petitioner
Mr. Sujit Patil, Advocate h/f Mr. V.D. Salunke, Advocate for
respondents
...
CORAM : SUNIL P. DESHMUKH, J.
DATE : 14-12-2017 ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard learned counsel Mr. S.G. Chapalgaonkar for petitioner and Mr. Sujit Patil, learned counsel h/f Mr. V.D. Salunke, learned counsel appearing for respondents no.1-A to 7, finally.
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3 WP - 3101-2014
2. Mr. Chapalgaonkar, learned counsel submits that while the plaintiff's examination-in-chief and cross-examination had been over on 20-08-2013, the respondents had opportunity to cross- examine him with respect to measurement of March - 2012, yet, there had been failure to cross-examine and in the circumstances, particularly having regard to the decisions thereon showing order XVIII, rule 17 of code of civil procedure can hardly be availed of in order to fill up the lacuna or to cover up the omissions, particularly, laying stress on decision in the case of Balkrishna Shivap Shetty V/s. Mahesh Nenshi Bhakta and others reported in 2003(4) Bom.C.R. 293 as well as decision of supreme court in the case of K.K. Velusamy V/s. N. Palanisamy reported in (2011) 11 S.C.C. 275, drawing attention to paragraph no. 19 of the same. He further purports to refer to conduct of the defendant in seeking adjournment to adduce evidence. He, therefore, urges to allow the writ petition and set aside the impugned order.
3. Whereas Mr. Sujit Patil, learned counsel appearing for respondents submits that the decision of the courts cannot be put in straight jacket, for the observations emerging are on the factual background therein. The factual scenario in the present matter is quite different. He submits that although the measurement by ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 00:59:16 ::: 4 WP - 3101-2014 taluka inspector of land records had been on 09-03-2012 and its map and report had been filed on record, yet, the same were not effectively brought on record till amendment to written statement had been allowed and that had been after plaintiff had been cross- examined on 20-08-2013. The record would bear that amendment to written statement had been allowed on 31-11-2013 and, thereafter, the plaint had also been amended and, as such, the request had been made under application exhibit - 174 for recalling plaintiff for cross-examination.
4. Learned counsel Mr. Patil refers to that the court had amply taken stock of the situation as well as the legal position as may appear from the contents of paragraphs no. 5, 6 and 7 of the impugned order. He submits that while the discretion has been exercised in favour of the party applying for recalling the witness for cross-examination with reference to the factual scenario, the discretionary powers invested in the court under the constitution of india, may not be invoked in the present matter, for, sound reasons and on sound basis, application exhibit - 174 has been allowed. Supreme court in the case of Velusamy, as referred to in paragraph no. 19 that a routine exercise of power under order XVIII, rule 17 of code of civil procedure is not intended, for, it may defeat the very purpose of expeditious prosecution of the matter, however, when the application is bonafide and where facts will assist the court, to clarify ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 00:59:17 ::: 5 WP - 3101-2014 the evidence on the issues and also in rendering justice, and if there are valid reasons for non-production of the evidence earlier, exercise of powers under order XVIII, rule 17, is not precluded.
5. When the court, in its discretion referring to the factual scenario, has considered that application deserves to be allowed with costs, I deem it expedient to refrain from passing any order meddling with the impugned order.
6. Writ Petition is not entertained and is disposed of.
7. Rule stands discharged.
[SUNIL P. DESHMUKH] JUDGE arp/ ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 00:59:17 :::