Bombay High Court
Arun S/O Wasudeo Deshmukh And ... vs Ashok S/O Wasudeo Deshmukh on 29 April, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6402 OF 2015
PETITIONER : 1] Arun S/o Wasudeo Deshmukh,
Aged about 66 years, Occu. Nil.
2] Arundhati W/o Arun Deshmukh
Aged about 57 years, Occu. Nil
3] Amit S/o Arun Deshmukh,
Aged about 35 years, Occu. Service,
ig 4] Sonali W/o Amit Deshmukh,
Aged about 30 years, Occu. Nil.
All the respondents are resident of Ground floor,
plot no.42, Line No.'O', PMG's Office Staff
Co-operative Housing Society Ltd.,
Madhav Nagar, Nagpur.
- VERSUS -
RESPONDENT : Ashok S/o Wasudeo Deshmukh,
Aged about 62 years, Occu. Service,
R/o plot no.42, Line No.'O', PMG's Office Staff
Co-operative Housing Society Ltd.,
Madhav Nagar, Nagpur.
-------------------------------------------------------------
Mr. Alok Daga, Advocate for the petitioners.
Mr. V. S. Dhobe, Advocate for the respondent
------------------------------------------------------------
CORAM : PRASANNA B. VARALE, J.
DATE : APRIL 29, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. With the consent of
the learned counsel for the parties, the petition is heard finally at the
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stage of admission itself.
2] By the present petition, the petitioners challenge the orders
dated 28.082014 passed by the learned District Judge-13, Nagpur and
30.07.2015, passed by the learned District Judge-9, Nagpur, in Regular
Civil Appeal No. 67/2013.
3]
Brief facts giving rise to the present petition can be
summarized as follows :
The petitioners are the original defendants in civil suit
bearing Special Civil Suit NO. 901/2007, filed by the present
respondent/plaintiff for ejectment and possession of the property
situated at Plot no.42, Line No.'O', PMG's Office Staff Co-operative
Housing Society Ltd., Madhav Nagar, Nagpur. The petitioner no.1 is the
real brother of the respondent. The trial Court, by the judgment and
order dated 03.12.2012 allowed the civil suit and the same was decreed
in favour of the respondent/plaintiff. Being aggrieved by the said
judgment and decree, an appeal bearing Regular Civil Appeal No.
67/2013 was preferred by the present petitioners before the learned
District Judge, Nagpur. An interim order granting stay on certain
conditions was passed by the learned District Judge. It is the case of the
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petitioners that during pendency of the appeal, the petitioners came to
know about a Will Deed executed in favour of the petitioner no.1. The
Will Deed was in the custody of Advocate Shri Agasti and the same was
notarized by Notary Shri D.K. Dubey, Advocate. Accordingly, the
petitioners/appellants filed an application (Exh.20) seeking amendment
to the written statement and another application (Exh.21) seeking
permission to file documents on record i.e. photo copy of the Will Deed,
which was received from the Notary Shri Dubey, Advocate. The
applications were opposed by the present respondent. The learned
District Judge-13 rejected the application for amendment (Exh.20), by
order dated 25.07.2014 on the ground that the same was filed at a
belated stage. The application (Exh.21) seeking permission to file the
documents on record was also rejected, by order dated 28.08.2014. The
petitioners challenged the order dated 25.07.2014 by filing writ petition
in this Court i.e. Writ Petition No. 5007/2014. The petition was
dismissed by the judgment and order dated 28.01.2015. The
petitioners/appellants then again filed an application (Exh.32) seeking
permission to lead evidence on the same ground that the they were
unaware that a Will Deed was executed in favour of the petitioner no.1.
Another application (Exh.32) was filed by the petitioners seeking
permission to file documents on record and setting aside the order
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dated 28.08.2014 below Exh.21. The learned District Judge-9 rejected
the application (Exh.30) by order dated 07.07.2015. The learned
District Judge-9 also rejected the application Exh.32 seeking permission
to file the documents. The petitioners then filed an application seeking
review of the order dated 07.07.2015 below Exh.30. By this petition,
the petitioners challenge the orders dated 28.08.2014 and 30.07.2015,
thereby rejecting the applications seeking permission to file documents
on record.
4] Mr. Daga, the learned counsel for the petitioners submitted
that the lower Appellate Court has failed to appreciate the fact that as
the petitioners have preferred an appeal, challenging the judgment and
decree and in that appeal, the applications were filed by the petitioners
seeking permission to lead evidence and to place on record the
documents. The learned counsel further submitted that the lower
Appellate Court ought to have exercised its power under Section 107 of
the Code of Civil Procedure. It is the submission of the learned counsel
that the Appellate Court was required to exercise the powers as of the
original Court and the Court failed to appreciate the fact that by
allowing the application for placing documents on record, the
petitioners could have an opportunity of proving the documents by
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leading evidence and no prejudice would have been caused to the
respondent. The learned counsel for the petitioners placed reliance on
the following judgments -
1] 2006 (6) Mh.L.J. 427
(Chitrakala Fal Dessai .vs. Balu Marathe alias Mane Jyotiba
Marathe)
2] AIR 2010 SC (Supp) 86
(Jabalpur Development Authority .vs. Shrivastava and another)
3] 2005 AIR (SC) 996
(Adil Jamshed Frenchman(D) by Lrs .vs. Sardar Dastur Schools
Trust.)
4] 2007 (1) Mh.L.J. 439
(Sraswati Education Society, Dist. Gondia and another .vs.
Santosh Bhaulal Rahangdale)
5] 2006 (2) Bom.C.R. 785
(Pandurang D. Dodke .vs. Lanka P. Kshirsagar.
6] 2011(1) Mh.L.J. 825
(Balbhim Sakharam Magar .vs. Sonbaba Sidharam Mane and
another)
5] Per contra, Mr. Dhobe, the learned counsel for the
respondent vehemently submitted that the attempt of the petitioners is
nothing but to prolong and protract the proceedings. The learned
counsel submitted that in the first attempt itself, the petitioners failed
before the trial Court. The earlier application was filed for the same
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prayer. The application was rejected and the order was challenged
before this Court in a writ petition. The learned counsel for the
respondent submitted that this Court while dismissing Writ Petition No.
5007/2014 observed that the Will is being used as an evidence in
support of plea that sale-deed dated 31.10.1995 is void. Obviously, it is
a matter of evidence and not a matter of pleading. It is submitted by
the learned counsel for the respondent that the observations of this
Court no way can be treated as an liberty granted to the petitioners to
file another application for the same purpose, when the earlier
application was rejected and the order of rejection was maintained by
this Court. The learned counsel for the respondent further submitted
that the petitioners, whose earlier application was rejected in year 2014,
after lapse of sufficient time, have filed writ petition before this Court
and though, the petitioners could not have filed the subsequent
application raising the very grounds, again approached the Appellate
Court. According to the learned counsel, the petitioners are only trying
to delay the proceedings. Apart from the merits, the petitioners also by
suppressing certain material facts, are approaching the Court. It is
further submitted that though, the petitioners made an attempt to
submit that the contest is only between the petitioner no.1 and the
respondent i.e. original plaintiff, who are the real brothers, there is
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sufficient material on record to show that apart from the respondent,
there are other heirs. The learned counsel for the respondent also
raised a ground to submit that the so called Will Deed, on which the
petitioners want to place reliance, cannot be accepted on various
grounds. It is submitted by the learned counsel that the case of the
petitioners is that it came to their knowledge that a Will Deed was
prepared by deceased Dattatraya Deshmukh and it was notarized by one
Advocate Shri D.K. Dubey and was in the custody of Advocate Shri
Agasti. The learned counsel for the respondent submitted that as per
the submission of the learned counsel for the petitioners, the Notary
Shri Dubey, Advocate used to keep photo copy of Will Deed with him
and original copy of the Will Deed was in the custody of Advocate
Agasti. The learned counsel for the respondent submitted that firstly
the Will Deed on which the petitioners are placing reliance, is a
notarized Will Deed and the Notary could not have maintained a photo
copy of the Will Deed with him. By adopting such practice, the Notary
has committed breach of secrecy of the said document namely Will
Deed. He further submitted that the petitioners, in the application
nowhere states about when the knowledge was received by them about
the so called Will Deed from Advocate Shri Agasti. It is also not stated
by the petitioners that what attempts were made by them to collect the
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copy of the so called Will Deed from Advocate Shri Agasti. It is the
submission of the learned counsel for the respondent that the
petitioners were placing an erroneous reliance on the provisions of
Section 107 of the Code of Civil Procedure. It was the submission of the
learned counsel for the respondent that the petitioners could not have
sought recourse to section 107 of CPC, but the application could have
been considered in view of the provisions of Order 41 Rule 27 of the
CPC. It is the submission of the learned counsel that the petitioners
wanted to place on record additional evidence in the appeal. It was for
the petitioners to satisfy the Court about the contingencies of Order 41
Rule 27 of CPC. As the petitioners failed to satisfy any contingency
required under Order 41 Rule 27, they could not have taken recourse to
Section 107 of CPC to submit that the Appellate Court possessing same
powers of the original Court. The learned counsel for the respondent
placed reliance on the following judgments :
1] 2012 (6) Mh.L.J. 176
(Ashabai w/o Ramchandra Kotecha and others .vs. Mohanlal
bhika Badode (died) thru his LR Smt. Munnabai Mohanlal and
others)
2] 2009 (6) Mh.L.J. 183
(Bhagwan Natthu Kale (since deceased) through Lrs Santosh
Bhagwan Kale and others .vs. Krishna Sadashiv Kale and others)
3] 2012 (5) ALL M R 462 (S.C.)
(Union of India .vs. Ibrahim Uddin and another)
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4] 2012 (3) ALL M.R. 470 (S.C.)
(Mahesh Kkumar (dead) by Lrs .vs. Vinod Kumar and others)
6] Mr. Dhobe, the learned counsel for the respondent also
invited my attention to the oral testimony of the respondent and the
admission in the cross-examination that deceased Dattatraya
Deshmukh, the uncle of the plaintiff/petitioner, was financially self-
sufficient. It was the submission of the learned counsel for the
respondent that the petitioners have not challenged the Will Deed,
which was in favour of the respondent and on the basis of which, the
judgment and decree of the trial Court was passed. It is also the
submission of the learned counsel for the respondent that the alleged
Will Deed, which is in favour of the petitioners, cannot be accepted for
the reason that the executant of the Will Deed was at a very advanced
age and on the backdrop of the Will Deed, which is a registered one in
favour of the respondent, the notarized Will Deed on which the
petitioners want to place reliance, looses its efficacy. It was the
submission of the learned counsel in view of the reported judgment of
the Apex Court in Mahesh Kumar .vs. Vinod Kumar (supra) that in case
of multiple Will Deeds, the last Will Deed will prevail and the last Will
Deed in the present case is a registered Will Deed executed in favour of
the respondent.
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7] I have heard the learned counsel for the parties at length
and also I have gone through the material placed on record. On a
perusal of the material, it reveals that the first application for
amendment in the written statement was filed by the petitioners on
26.06.2014. It was submitted in the application that on an enquiry
conducted by the petitioners, it came to their knowledge that prior to
death of his uncle Dattatraya Deshmukh, he had called Advocate Shri
Agasti 2-3 times and Advocate Shri Dubey. On approaching Advocate
Shri Dubey, he stated that he has notarized a Will Deed of Mr. Dattatray
Deshmukh on 15.08.2005 and as per his regular practice he keeps one
photo copy of the will deed in his custody. The petitioners then
requested to handover one photo copy of the said will deed dated
15.08.2005. It was stated that Shri Agasti, Advocate who has drafted
the Will Deed, kept the original will in his custody and the same was
notorized before Shri D.K. Dubey, Advocate. On these submissions, the
application was filed for amendment to the written statement. On the
very day, other application was filed for grant of permission to file
documents. A copy of the said application is placed on record at
'Annexure-H'. Perusal of the said application shows that the application
is as vague as it could be as there is not even basic material for seeking
permission to file the documents such as nature of document and the
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subsequent events/grounds for seeking permission to file documents.
A photo copy of the document titled as 'last will deed' is placed on
record at 'Annexure-I'. The respondent/original plaintiff opposed the
application by filing his say. The learned District Judge-13, with the
well reasoned order, rejected the application. The another application
seeking permission to file the documents on record namely the Will
Deed, dated 25.02.2005 was also rejected.
8] Perusal of the order of this Court in Writ Petition No.
5007/2014 shows that this Court could not find favour with the present
petitioners who were also the petitioners in W.P. No. 5007/2014. The
petitioners again by raising same grounds, submitted subsequent
application by referring that as the writ petition was dismissed by this
Court observing that it is a matter of evidence and not a matter of
pleading, it would be necessary to grant permission to the
petitioners/applicants to produce additional evidence by further
permitting to examine the witnesses namely Advocate Agasti, Advocate
Dubey, Mr. M.J. Narale and P.G. Borikar. The petitioners also filed
application seeking permission to file documents and setting aside the
order dated 28.08.2014. The learned District Judge, on considering the
ground raised in the application as well as the order passed by this
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Court in Writ Petition No. 5007/2014, arrived at a conclusion that it is
the attempt of the petitioners to take back door entry by moving an
application without having any cogent reason and accordingly rejected
the applications, by orders dated 07.07.2015 and 30.07.2015,
respectively. The learned District Judge also observed that the earlier
order passed by the Court, rejecting the application for production of
the document on record, reached finality in view of dismissal of the writ
petition.
9] There is merit in the submission of the learned counsel for
the respondent that the attempt of the petitioners is not only meritless,
but also an attempt to prolong the proceedings. The learned counsel
for the respondent invited my attention to the various applications
seeking adjournment, placed on record along with the submissions on
behalf of the respondent. The documents are also placed on record to
suggest that the respondent is possessing two registered documents in
his favour namely a Sale Deed and a Deed of Gift, dated 25.08.2005.
There is also merit in the submission of the learned counsel for the
respondent that the so called Will Deed, on which the petitioners are
placing heavy reliance, cannot be accepted on the very ground
submitted by the petitioners themselves. It is the submission of the
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petitioners that about the said Will Deed, the knowledge was received
from Advocate Shri Dubey and Advocate Shri Agasti. The learned
counsel for the petitioners relied on the note endorsed on the copy of
the said document titled as "last will deed", which reads that - "I have
drafted this deed as per instructions of Shri D. S. Deshmukh. I know him
personally as well as the witnesses named above who have signed in my
presence." It further reads that "Original will is sealed in envelope and
kept with Mr. M. B. Agasti, Advocate, 35, Madhav Nagar, Nagpur." This
note is endorsed by the Notary. Firstly, in the note of the Notary, there
is no reference that any photo copy of the Will is maintained by the
Notary, but it is stated that the original will is sealed in envelope and
kept with Mr. Agasti. There is also merit in the submission of the
learned counsel for the respondent that the ground raised by the
petitioners that Advocate Mr. Dubey informed that he had maintained
photo copy of the Will deed as per his regular practice, cannot be
accepted as it would loose the secrecy of the document Will Deed and
the the Notary as a regular practice cannot keep photo copies of the Will
in his custody. There is also merit in the submission of the learned
counsel for the respondent that there cannot be any dispute that in view
of the provisions of Section 107 of the C.P.C., the Appellate Court
exercises the powers of original Court, but for a claim of an additional
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evidence in appeal, the petitioners were required to satisfy the
contingencies of Order 41 Rule 27 of the CPC.
10] In view of all the above referred aspects, in my opinion, the
petition is wholly meritless and the same deserves to be dismissed. The
petition is accordingly dismissed.
Considering the fact that the parties to the proceedings are
in their advanced age and the proceedings were reached at various
levels including this Court, the prayer of the learned counsel for the
respondent that the direction be given to the lower appellate Court to
decide the appeal within the stipulated time is worth consideration.
Though it will not be appropriate for this Court to fix the time frame to
the appellate Court, this Court hopes and trusts that the lower appellate
Court will decide the appeal as expeditiously as possible.
Rule discharged. No order as to costs.
JUDGE
Diwale
