Bombay High Court
Shantabai W/O Jagannath Jaiswal ... vs Anandibai Wd/O Satyanarayan ... on 7 July, 2006
Equivalent citations: 2006 (5) MhLj 748
Author: N H Patil
Bench: N H Patil
JUDGMENT
Naresh H. Patil, J.
1. Heard.
2. Rule, returnable forthwith. The learned Counsel for the respective respondents waive service. By consent of the parties, taken up for final hearing.
3. The petitioners are plaintiffs in the trial Court. They filed Special Civil Suit No. 230 of 2004 in the Court of II Joint C.J.S.D., Aurangabad for partition and separate possession. The plaintiffs led evidence on a document which is said to be a registered Will Deed, dated 16-7-2001. By an application dated 21-9-2005, the plaintiffs prayed for exhibiting the "Will Deed". The defendant Nos. 1 and 2 in the trial Court filed say to the said application and resisted the prayer made by the petitioners. By an order dated 30-9-2005, the trial Court postponed the decision on exhibiting the said document by observing that there would be no obstruction to proceed with the matter and the issue could be decided even at the stage of final arguments. This order is impugned in this petition.
4. The learned Counsel for the petitioners states that the order to exhibit the document or to reject the prayer for exhibition of the document cannot be postponed by Court. The prayer made by a party in this regard has to be decided then and there only, so that a party can either try to prove the document by some other mode or may lead some other evidence in case of rejection of the document by the Court.
5. The learned Counsel for the respondent Nos. 1 and 2 states that no prejudice would be caused to the plaintiffs if the trial Court postponed the order on the application filed by the plaintiffs and decides the same at the time of hearing of the suit. In the fact situation of the case, the learned Counsel submits that the view of the Court could not be termed as erroneous as the entire suit is based on construction of the "Will Deed".
6. The petitioners had led evidence to prove execution of the Will and in the process, they filed an application before the trial Court praying for an order to exhibit the said document i.e. Will Deed. The trial Court postponed order on the said application. The trial Court observed that exhibiting the document could not amount to proof of the contents of the document and a party Will have to lead evidence on record to show whether there is sufficient evidence to prove the document and its contents, and this can be done even at the time of final arguments.
7. The grievance of the petitioners is that in case the trial Court decides to reject the document by not accepting the same, then after closure of the evidence, the petitioners would not be in a position to lead any further evidence in proving the execution of the "Will Deed" and/or its contents. Therefore, the issue of production of the document in evidence by exhibiting the same will have to be decided at the stage at which it is asked for. The learned Counsel for the petitioners placed reliance on a reported judgment in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and Anr. , wherein it was observed by the Apex Court:
...On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons : firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties.
The learned Counsel for the petitioners further placed reliance on a reported judgment of this Court in the case of Sunil Tukaram Bharadkar v. Santosh Gopichand Rane 2006(3) Mh.L.J. 811, wherein it is observed:
...The order to admit or reject the document produced in evidence cannot be postponed to be delivered at the time of final disposal of the suit, as in the case of rejection of document, it must be made known to the party at the time when the document is sought to be produced in evidence. Such information to the concerned party at the relevant time is absolutely necessary to avoid undue hardship to such party.
8. Considering the factual background of the case, the pleadings of the parties and the evidence which is sought to be led by the plaintiffs, it would be just and proper for the trial Court to decide the application filed by the petitioners seeking to exhibit the document i.e. Will Deed, which is tendered in evidence. The same would facilitate the petitioners, in case their application is rejected, to resort to lead any other evidence necessary to establish the fact which was sought to be established by producing such document. The impugned order of postponement of exhibition of the said document, in the light of the aforementioned discussion and the case law, deserves to be quashed and set aside.
9. Writ petition is allowed. The impugned order dated 30-9-2005 passed by the II Joint C.J.S.D., Aurangabad on Exh. 37 in Spl. Civil Suit No. 230 of 2004 is quashed and set aside. The II Joint C.J.S.D., Aurangabad shall decide application (Exh. 37) in Special Civil Suit No. 230 of 2004, filed by the petitioners, on its own merits and in accordance with law. Rule is made absolute in the above terms with no order as to costs.
