Bombay High Court
Mudra Rajkumari Prashant ... vs The State Of Mah And Ors on 20 April, 2016
Bench: V.L. Achliya
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10151 OF 2012
Mudra Rajkumari D/o Prashant Agrawal
Age : Minor being Minor through her
next friend/guardian
Shri Prakash S/o Late Bhikchand Agrawal
Age 62 years, Occu-Business
R/o Old Bombay-Agra Road, Plot No.87
Dhule, Tq. & Dist.Dhule. .. PETITIONER
[ORIG.PLAINTIFF]
VERSUS
1] The State of Maharashtra
(Copy to be served on G.P.
In the High Court of Judicature
of Bombay Bench at Aurangabad.
2] Shri N.R.Tayade
Age Years, Occu-Service as Tahsildar
R/o Tahsil Office, Dhule, Tq. & Dist.Dhule
3] Raghunath Gawade
Age Years, Occu-Service as District
Supply Officer, R/o Office of Collectorate
Dhule.
4] Shri N.S.Chaudhary
Age Years, Occu-Service as
Additional Collector,
R/o Office of Collectorate Dhule
Tq. & Dist.Dhule.
5] Shri U.V.Upasani
Age Years, Occu-Service as
Supply Inspector, Nagar Palika
Section, Collectorate Dhule
Tq. & Dist.Dhule.
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6] Shri Manojkumar Suryawanshi
Age Years, Occu-Service
R/o Office of Collectorate, Dhule
Tq. & Dist.Dhule.
7] Manohar s/o Bhikchand Agrawal
Age 65 years, Occu-Business
R/o Old Bombay Agra Road, Plot No.87
Dhule, Tq. & Dist.Dhule. (Deleted from the Suit vide
order dated 21/08/2012)
...RESPONDENTS
(ORIG.DEFENDANTS)
.... ig WITH
APPEAL FROM ORDER NO.136/2009 WITH
CIVIL APPLICATION NO.12285/2009
Mudra Rajkumari D/o Prashant Agrawal
Age : Minor being Minor through her
next friend/guardian
Shri Prakash S/o Late Bhikchand Agrawal
Age 62 years, Occu-Business
R/o Old Bombay-Agra Road, Plot No.87
Dhule, Tq. & Dist.Dhule. .. APPELLANT
[ORIG.PLAINTIFF]
VERSUS
1] The State of Maharashtra
(Copy to be served on G.P.
In the High Court of Judicature
of Bombay Bench at Aurangabad.
2] Shri N.R.Tayade
Age Years, Occu-Service as Tahsildar
R/o Tahsil Office, Dhule, Tq. & Dist.Dhule
3] Raghunath Gawade
Age Years, Occu-Service as District
Supply Officer, R/o Office of Collectorate
Dhule.
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4] Shri N.S.Chaudhary
Age Years, Occu-Service as
Additional Collector,
R/o Office of Collectorate Dhule
Tq. & Dist.Dhule.
[Dismissed against R.4. As per
Courts order dt. 15/11/2011
5] Shri U.V.Upasani
Age Years, Occu-Service as
Supply Inspector, Nagar Palika
Section, Collectorate Dhule
Tq. & Dist.Dhule.
6] Shri Manojkumar Suryawanshi
Age Years, Occu-Service
R/o Office of Collectorate, Dhule
Tq. & Dist.Dhule.
[Dismissed against R.6
as per Court's order dt.24/1/2012.]
7] Manohar s/o Bhikchand Agrawal
Age 65 years, Occu-Business
R/o Old Bombay Agra Road, Plot No.87
...RESPONDENTS
Dhule, Tq. & Dist.Dhule.
(ORIG.DEFENDANTS)
.....
Mr.C.R.Deshpande Adv. for petitioner
Mr.V.M.Kagne,AGP for respondent No.1&3 to 6
Mr.D.S.Bagul, Adv. for Respondents no.2
...
CORAM : V. L. ACHLIYA, J.
DATED : 20TH APRIL, 2016
ORAL JUDGMENT :
Rule. Rule returnable forthwith. With consent of parties,
Petition as well as appeal are taken up for final disposal. Since the
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writ petition and appeal are arising of order passed in same
proceeding, same are heard together and decided by common order.
2] Petitioner has preferred Writ Petition No.10151/2012
challenging the order dated 1/12/2012 passed by Joint Civil Judge,
Senior Division, Dhule in Special Suit No.147/1999, whereby the
learned Judge allowed the application moved by defendant to
produce certain documents. Whereas, the A.O. No.136/2009 is
preferred against order dated 8/10/2009, passed in Special Suit
No.147/1999, whereby the trial Court has refused to entertain the
application seeking order to strike out the defence for non
compliance of order dated 19/8/2008 to produce certain documents.
3] According to the learned counsel for the petitioner, the
petitioner/plaintiff has already filed affidavit by way of examination in
chief and the witness has been partly cross examined by defendant.
In view of the production of the documents at belated stage, the
plaintiff will have to consider as to whether any further evidence by
way of examination in chief required to be adduced in the matter.
Learned AGP appearing for the respondents submits that in such
eventuality the plaintiff may seek leave of the Court to file additional
affidavit by way of examination in chief and further cross
examination can be recorded thereafter. In my view the option to
seek permission to file additional affidavit by way of further
examination in chief is very much available for the petitioner and
there is no reason for the trial Court to refuse to entertain such
request.
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4] It appears from record that, the plaintiff has filed Suit for
damages on account of cancellation of kerosene license. During the
pendency of the Suit, the petitioner has moved an application
seeking direction against the defendants to produce certain
documents. As the documents were not produced the plaintiff moved
application to strike out the defences of defendants. Against the
rejection of application the petitioner has filed the appeal. At
subsequent stage the defendant moved application to produce
documents, to which the plaintiff objected on the ground of delay. As
the application for production of documents is allowed, the petitioner
has preferred this petition. In my view, no serious prejudice is
caused to the petitioner on account of impugned orders as the case
is still at the stage of recording of the evidence.
5] Having appreciated the submissions advanced, I am of the
view that the order dated 1/12/2012 passed by the trial Court calls for
no interference in exercise of supervisory jurisdiction under Article
227 of the Constitution of India. The trial Court has acted well within
its power to entertain the application for the production of the
documents. Although it is expected that the parties should file
documents alongwith their pleadings or atleast before the settlement
of the issues, but subsequent filing of the documents is not barred in
law. In appropriate case the Court may allow such production at
subsequent stage. In the process of dispensation of justice, the
Courts are not expected to adhere to technicalities. The provisions
of law dealing with procedural aspects always to be construed
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liberally. Therefore, the impugned order dated 1/12/2012 cannot be
said to be illegal or without jurisdiction. In fact the petitioner has
earlier moved an application seeking production of certain
documents. As the order to produce document was not complied,
the petitioner has moved an application under Order 39 Rule 11 of
Code of Civil Procedure to strike out the defences of the defendants.
The Court has rejected the application and observed that in the facts
and circumstances of the case, if required, adverse inference will be
drawn for non production of document. Being aggrieved, by said
order the petitioner has preferred Appeal No.136/2009 which is heard
alongwith present Writ Petition. Therefore, the impugned order calls
for no interference in exercise of jurisdiction under Article 227 of the
Constitution of India.
6] So also the order dated 8/10/2009 passed by trial Court calls
for no interference in exercise of appellate powers, as the exercise of
powers under Order 39 Rule 11 of Code of Civil Procedure are
discretionary in nature. The view taken by learned judge is possible
view, in the matter and therefore same is not liable to be substituted
in exercise of appellate powers by this Court. The impugned order is
neither perverse nor without jurisdiction.
7] In view of this, the appeal as well as the writ petition filed
against impugned orders are devoid of merit and substance therein
and liable to be rejected. Accordingly, Writ Petition as well as Appeal
are dismissed with no order as to costs. However, the trial Court is
directed that in case the plaintiff seeks leave to file additional
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affidavit by way of examination in chief then same may be taken into
consideration to avoid any prejudice being caused to petitioner due
to production of documents at belated stage. Interim relief stands
vacated. Parties are directed to appear before the trial Court on
7/6/2016. On appearance of the parties, trial Court is directed to
proceed with the matter and dispose of the case as expeditiously as
possible. Parties are directed to cooperate with the trial Court in
expeditious disposal of the Suit.
Rule discharged in above terms. In view of disposal of the
appeal the Civil Application No. 12285/2009 stands disposed of.
(V.L.ACHLIYA,J.)
umg/
