Bombay High Court
Mahadeo S/O. Kisan Katkar vs Manohar S/O. Kisan Katkar And ... on 28 July, 2016
Bench: A.S. Chandurkar
W.P. No.1492/2016 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1492 OF 2016
Petitioner : Mahadeo s/o Kisan Katkar,
Aged about 59 years, Occ : Retired,
R/o Gudhi, Akola,
Tq. and Dist. Akola.
ig -- Versus --
Respondents : 1] Manohar s/o Kisan Katkar,
Aged about 55 years, Occ : Nil.
2] Darshan s/o Gajanan @ Gajendra Katkar,
Aged about 35 years, Occ : Nil.
3] Amit s/o Gajanan @ Gajendra Katkar,
Aged about 33 years, Occ : Nil.
4] Amol s/o Gajanan @ Gajendra Katkar,
Since deceased, through legal heirs.
I] Smt. Narmada wd/o Amol Katkar,
Aged about 31 years, Occ. Household.
II]Ku. Vaishanvi d/o Amol Katkar,
Aged about 6 years, Occ. Student,
Minor, through guardian
Smt. Narmada wd/o Amol Katkar,
Res. No. 1 to 4(II) r/o Near Adrsha Vyayam Shala,
Prasad Colony, Jatharpeth, Akola,
Tq. Akola, Dist. Akola.
5] Sunil Shriram Hatekar,
Aged adult, Occ. Builder,
R/o Lahan Umri, Behind Municipal School No.5,
Akola, Tq. and Dist. Akola.
::: Uploaded on - 30/07/2016 ::: Downloaded on - 02/08/2016 00:14:10 :::
W.P. No.1492/2016 2 Judgment
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri N.S. Warulkar, Advocate for the Petitioner.
Shri A.R. Deshpande, Advocate for the Respondent No.5.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
C ORAM : A.S. CHANDURKAR, J.
DATE : 28
JULY, 2016.
th
ORAL JUDGMENT :-
01] In view of notice for final disposal, the learned Counsel for the
parties have been heard at length by issuing Rule and making the same
returnable forthwith.
02] The challenge in the present writ petition is to the order passed
by the appellate Court below Exh.29 in R.C.A. No.77/2010 thereby allowing
the application that was moved by the present respondents under the
provisions of Order XLI Rule 27 of the Code of Civil Procedure, 1908 (for
short, 'the Code') seeking permission to file on record the original will dated
19/09/2006. By the impugned order, this application has been allowed.
03] The petitioner is the original plaintiff who has filed suit for
partition and separate possession. The trial Court by judgment dated
30/04/2010 dismissed the said suit on merits. The petitioner, therefore,
W.P. No.1492/2016 3 Judgment
challenged the said judgment by filing an appeal under Section 96 of the
Code. During pendency of the said appeal, the respondent no.1 moved an
application under provisions of Order XLI Rule 27 read with Section 151 of
the Code. By said application, the copy of the original will was sought to be
placed on record. This application was opposed by the petitioner. The
appellate Court by the impugned order allowed the application on the ground
that it would be enable to appreciate the evidence on record in the proper
perspective if the production of the said document was allowed.
04] I have heard Shri N.S. Warulkar, the learned Counsel for the
petitioner and Shri A.R. Deshpande, the learned Counsel for the respondent
no.5. It is not necessary to adjudicate upon the respective contentions of the
parties on the correctness of the impugned order in view of the observations
of the Hon'ble Apex Court in Union of India vs. Ibrahim Uddin and another
- (2012) 8 SCC 148. In paragraph 52 thereof, it has been observed thus :
"52. Thus, from the above, it is crystal clear that an application for
taking additional evidence on record at an appellate stage, even if
filed during the pendency of the appeal, is to be heard at the time
of the final hearing of the appeal at a stage when after
appreciating the evidence on record, the court reaches the
conclusion that additional evidence was required to be taken on
record in order to pronounce the judgment or for any other
W.P. No.1492/2016 4 Judgment
substantial cause. In case, the application for taking additional
evidence on record has been considered and allowed prior to the
hearing of the appeal, the order being a product of total and
complete non-application of mind, as to whether such evidence is
required to be taken on record to pronounce the judgment or not,
remains inconsequential/inexecutable and is liable to be ignored."
05]
From the aforesaid, it is clear that the Hon'ble Supreme Court
has held that if the application for considering additional evidence is allowed
prior to hearing of the appeal, then such order becomes inconsequential and
is liable to be ignored. It is further observed that such application has to be
heard when the appeal is taken up for final hearing during which course
appreciation of evidence on record would be possible.
06] In view of aforesaid legal position, the impugned order dated
05/02/2016 passed below Exh.29 cannot be sustained. The appellate Court
ought to have followed the course as laid down by the Hon'ble Supreme Court
in paragraph 52 of the aforesaid decision.
07] In view of aforesaid, order dated 05/02/2016 passed below
Exh.29 is set aside. The application below Exh.29 is restored and same shall
be decided when the appeal is taken up for final consideration. The appellate
W.P. No.1492/2016 5 Judgment
Court shall keeping in mind the observations of the Hon'ble Supreme Court in
paragraph 52 of the aforesaid judgment. It is made clear that said application
shall be decided on its own merits and in accordance with law.
Rule is made absolute in aforesaid terms with no order as to
costs.
JUDGE
*waghmare
W.P. No.1492/2016 6 Judgment
C E R T I F I C A T E
I certify that this judgment uploaded is a true and
correct copy of the original signed judgment.
Uploaded by: S.D. Waghmare Uploaded on : 30/07/2016
P.A. to the Hon'ble Judge.
