Bombay High Court
Madhavlal S/O Narayanlal Pittie ... vs M/S Aman Timber Mart, Yavatmal And ... on 2 April, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3593 OF 2015
PETITIONER :- Madhavlal S/o Narayanlal Pittie
Aged about 85 years, receiver in
Bombay High Court Suit No.
224/1961 having its office at C/o
Harinagar Sugar Mills Centre-1,
World Trade Centre, Cuffe
Parade, Mumbai-400005 through
his power of attorney holder Mr.
ig Jaishankar S/o Awadhnarayan
Tiwari, aged about 52 years, Occupation :
Service, R/o 15/25, Man Nagar,
Bandra-East, Mumbai
...VERSUS...
RESPONDENTS :- 1) M/s.Aman Timber Mart
2) Khan Saw Mill, a partnership Firm
3) Aman Saw Mill Partnership Firm
4) Amamullakhan S/o Alafkhan
5) Abidullahan S/o Alafkhan
6) Attaullahan S/o Alafkhan
7) Shadat Shadullakhan S/o Alafkhan
8) Moon Engineering Fabrication
Work, through Abidullakhan
S/o Amankhan, All R/o Gin File,
Church Road, Yavatmal, Tahsil &
District Yavatmal.
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Mr.J.J. Chandurkar, counsel for the petitioner.
Mr.N.B. Bargat, counsel for the respondent Nos.4 to 7.
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CORAM : SMT. VASANTI A. NAIK J.
DATED : APRIL 02, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. The petition is
heard finally with the consent of the learned counsel for the parties.
By this petition, the petitioner has challenged the order of
the Civil Judge Junior Division, Yavatmal dated 2.5.2015 in Small
Cause Suit No.21 of 2008 rejecting the application filed by the
petitioner for calling the original records in Civil Suit Nos.39 of 1994
and 93 of 1982 for proving his case.
The petitioner is the original plaintiff. A suit was filed by
the petitioner against the respondent for eviction and possession,
bearing Small Cause Suit No.21 of 2008. Proceedings between the
same parties were also decided by the Civil Court in Civil Suit Nos.39 of
1994 and 93 of 1982. In the instant suit filed by the petitioner, the
petitioner has sought the eviction of the respondent, who according to
the petitioner, is the tenant in the suit property. In the present suit filed
by the petitioner, the respondent-defendant has raised a plea that he is
the owner of the suit property. At the time of tendering of evidence, the
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petitioner-plaintiff made an application before the Small Causes Court
for calling the original record and proceedings in Civil Suit Nos.39 of
1994 and 93 of 1982 to show that the respondent-defendant had taken
a contrary plea in the earlier suits. It is the case of the petitioner-
plaintiff that in the two earlier suits between the parties, the respondent
had raised a plea that he is the tenant in the suit property, whereas in
the present suit, the respondent had claimed the ownership and title to
the suit property. With a view to prove the contradiction in respect of a
material fact, the petitioner had sought the necessary order for calling
for the original records in the aforesaid two suits. The application was,
however, rejected by the impugned order dated 2.5.2015.
Shri Chandurkar, the learned counsel for the petitioner
submits that the application made by the petitioner could not have been
rejected by referring to the provisions of Section 157 of the Evidence
Act. It is submitted that admittedly, the record and proceedings in Civil
Suit Nos.39 of 1994 and 93 of 1982 is available in the Court and,
therefore, the same could have been directed to be produced in the
small causes suit to prove a material contradiction in the plea raised by
the respondent-defendant in the earlier suits and the present suit. It is
submitted that after the records of the civil suits could have been
secured, the petitioner would have taken appropriate steps to prove the
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same. It is submitted that the application made by the petitioner could
not have been rejected at the threshold by referring to the provisions of
Section 157 of the Evidence Act.
Shri Bargat, the learned counsel for the respondent
supported the order of the Small Causes Court and sought for the
dismissal of the writ petition.
On hearing the learned counsel for the parties, it appears
that the Small Causes Court has committed a serious error in rejecting
the application filed by the petitioner by referring to the provisions of
Section 157 of the Evidence Act. The petitioner could have proved the
statements in the record by resorting to the provisions of the Evidence
Act after the same would have been secured by the Small Causes Court.
The record and proceedings in the two decided suits between the same
parties may have been considered by the Small Causes Court after
calling for the same in accordance with law. The Small Causes Court
wrongly made a reference to the provisions of Section 157 of the
Evidence Act for rejecting the application filed by the petitioner. There
is nothing in the said provision that prohibits the Small Causes Court
from calling the record and proceedings in the matter decided by the
Trial Court between the same parties.
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Hence, for the reasons aforesaid, the writ petition is
allowed. The impugned order is quashed and set aside. The
application filed by the petitioner for the calling of the record, at
Exh.121 is allowed.
Rule is made absolute in the aforesaid terms with no order
as to costs.
At the request of the learned counsel for the petitioner, the
proceedings in the suit are expedited.
JUDGE
!! BRW !!`
