National Tiles And Marble Company vs Joshi And Sons
2004 Latest Caselaw 1032 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. Rule made returnable forthwith, by consent. Heard Shri B.N. Mohta for the petitioner and Advocate V.V. Bhangade for the respondent.

2. The petitioner in this petition has challenged three interlocutory orders passed by the 3rd Joint Civil Judge, Sr. Dn., Nagpur on 5th July, 2004. By his order passed below Exh. 1209 the Court has found that there is no question of giving any exhibit marks to the documents at that stage and therefore, has rejected application at Exh. 1209. However, there is further observation by the Court which reads:

It is the attempt to fill up lacuna without proving the documents by adopting legal process laid down in the Act."

Mr. B.N. Mohta, Advocate appearing for the petitioner, says that these are unwanted observations which tend to conclude the issue at a premature stage, he therefore, praying for quashing and setting aside the said order.

3. Mr. Bhangade, Advocate appearing for the respondent, fairly concedes to this position and gives his no objection for quashing this sentence appearing at the end of the order.

4. In that view of the matter the above portion in the impugned order dated 5-7-2004 passed below Exh. 1209 is expugned.

5. Second order is passed below Exh. 1217. By this application the defendant has made prayer to the trial Court for rejection of plaint under Order VI, Rule 14-A of the Code of Civil Procedure Code on account of failure of the plaintiff to furnish his changed address as per procedure prescribed in Order Rule 14-A as amended by this Court. It is an admitted position on record that after filing of this application the plaintiff has brought his registered address on record and there was a pleader engaged by the defendant as well as plaintiff in the proceedings before the lower Court and the said Advocates appearing for the parties have accepted the service of notices and documents as required by Order 3, Rule 5 of C.P.C. The trial Court has therefore, observed that this failure on the part of the defendant has not affected to the plaintiff in any manner whatsoever. The trial Court has referred to the requirement of Order 6, Rule 14-A (5-9) and found that the said rule comes into picture only when incomplete, false or fictitious address is furnished by the plaintiff. The trial Court has found that the plaintiff has not furnished any such incomplete, false or fictitious address. This appreciation by the trial Court cannot be said to be in any way perverse and suffering from any jurisdictional error. Advocate Mohta contends that the address is required to be furnished not only for the purpose of suit in which it is filed but also for the use in subsequent proceedings between the same parties. He contends that the provisions of the said order are mandatory and non-compliance therewith must result into rejection of plaint. In support of his contention he relies upon the judgment of Karnataka High Court reported in 2003(4) C.L.J, 767, Yellappa by LRs v. Smt. Yashodabai. In this judgment the learned Single Judge of the Karnataka High Court after reproducing the provisions of Rule 14-A in para No. 4 has observed thus:

The provisions of Rule 14-A are mandatory and postulate a disastrous consequence to the party who does not furnish a correct and a proper address. If the plaintiff furnishes incomplete, false or fictitious address, the Court can stay the further proceedings of the suit and if the defendant commits fault in not giving the proper and correct address, the defence is to be struck off and the defendant is placed in a position as if he has not put up any defence. Despite sufficient legislative provision to enforce discipline, there is no will on the part of the courts below to enforce the rule by compelling the parties at the initial stage to furnish a proper, correct and registered address. It is therefore necessary for the office at the stage of scrutiny of pleadings to insist the mentioning of proper and registered address and should raise necessary office objections before the file is sent to the Bench for further judicial consideration in the matter. In case of defendants/respondents after their appearance in the written statement/objections, it is to be insisted that defendants/ respondents/objections, it is to be insisted that defendants/respondents shall furnish correct and proper registered address. If such steps are taken at the initial stages, substantial volume of pendency at the process level could be eliminated."

6. It is clear that this is not a case in which the plaintiff has furnished any incomplete, false or fictitious address. Hence, the said observations are not attracted in the facts and circumstances of the present case. Further during pendency of the suit itself the plaintiff has furnished his correct address and there is no dispute about this position in the instant matter. Hence, in the facts and circumstances of the present case I do not find it necessary to consider the arguments advanced by Advocate B.N Mohta in so far as this case is concerned.

7. In view of above, the order dated 5-7-2004 rejecting application at Exh. 1217 is therefore, just and proper and does not call for any interference.

8. Last order dated 5-7-2004 is passed on the application at Exh. 1223. By this application the defendant wanted to exhibit certified copy of the Civil Suit No. 2074/82 filed by the respondent against the present petitioner before the Civil Court at Bombay. Mr. Mohta prays for permission to withdraw the said challenge from this petition with liberty to raise that issue in appropriate proceedings in case the judgment of Civil Court goes against him.

9. Considering the controversy, the permission is granted as prayed for with liberty.

10 The Writ Petition No. 3087/04 is this partly allowed.

11. Rule made absolute in the above terms with no order as to costs.