Judgment 1 wp7016.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 7016 OF 2017
Ashok Bcchumal Gangwani,
Aged about 53 years, Occupation:
Business, R/o. Old Devi Ward,
Pusad, Tq. Pusad, Distt. Yavatmal.
.... PETITIONER.
// VERSUS //
1. Kishor Gokuldas Adtiya,
Age : 50 years, Occu.: Business,
2. Sanjay Gokuldas Adtiya,
Age : 45 years, Occu.: Business,
3. Kirit Gokuldas Adtiya,
Age : 43 years, Occ.: Business,
All R/o. Devi Ward, Pusad,
Tq. Pusad, Distt. Yavatmal.
.... RESPONDENTS
.
___________________________________________________________________
Shri Anjan De, Advocate for Petitioner.
Shri K.S.Narwade, Advocate for Respondent No.1.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : OCTOBER 31, 2017.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
2. RULE. Rule made returnable forthwith.
::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:39 :::
Judgment 2 wp7016.17.odt
3. The petitioner/ tenant has suffered decree for eviction and possession. The appeal filed by the petitioner challenging the above judgment and decree is pending before the District Court. During pendency of the appeal, the petitioner had filed an application seeking permission to amend the written statement and memo of appeal which came to be allowed by the District Court. The respondents/ landlords had filed application (Exh.41) seeking permission to effect consequential amendment in the plaint which is allowed by the order passed on 16 th August, 2017. This order is challenged in the present writ petition, however, advocate for the petitioner, on instructions, stated that the challenge to the order passed on the application (Exh.41) is given up.
4. The petitioner had filed application (Exh.44) praying that the landlord (plaintiffs) be directed to enter the witness box before the defendant is called upon to lead evidence. This application is rejected by the order dated 4th October, 2017. This order is also challenged in the present petition.
5. After hearing the learned advocates for the respective parties for some time, I find that though the learned District Judge has permitted the parties to amend the pleadings (written statement and plaint) and has fixed the matter for recording additional evidence, the point/ points to which the evidence is to be confined have not been specified as required by Rule 29 of Order 41 of the Code of Civil Procedure.
::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:39 :::
Judgment 3 wp7016.17.odt
6. In my view, this exercise should have been undertaken before considering the application (Exh.44) as the parties would know what burden they are required to discharge once the point/ points to which evidence will have to be specified, is / are specified.
7. In view of the above, the following order is passed:
i. The order passed by the learned District Judge on the application (Exh.44) is restored.
ii. The learned District Judge shall comply with the requirements of Rule 29 of Order 41 of the Code of Civil Procedure and specify the point/ points to which the evidence would be confined.
iii. After the point/ points is/are specified, the application (Exh.44) be considered.
iv. The learned advocate for the respondents/ plaintiffs has made a grievance that the petitioner/ defendant is protracting the matter and the plaintiffs are deprived of the possession of the suit premises since last more than 25 years. Considering these facts, the learned District Judge is directed to dispose the appeal till 15th January, 2018.
The writ petition is disposed in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 00:30:39 :::