Deokabai W/O. Toliram Maraskolhe vs Shri. Sewakram S/O. Mohanlal ...
2016 Latest Caselaw 2988 Bom

    909-WP-6668-15                                                                              1/3


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                        
                            NAGPUR BENCH, NAGPUR.




                                                                
                              WRIT PETITION NO.6668 OF 2015


    Deokabai w/o Toliram Maraskolhe 
    Aged about 48 years, Occ. Agriculturist, 




                                                               
    R/o Rongha Tah. Tumsar, Dist. Bhandara                         ... Petitioner 

    -vs- 




                                                   
    Sewakram s/o Mohanlal Salame 
    Aged about 55 years, Occ. Agriculturist, 
                                      
    R/o Rongha, Tah. Tumsar, Dist. Bhandara                        ... Respondent 
                                     
    Shri K. S. Motwani, Advocate for petitioner. 
    Respondent served. 
                                                      CORAM  : A.S.CHANDURKAR, J. 

DATE : JUNE 17, 2016

Oral Judgment :

The respondent though served has not chosen to contest the

petition. On 12/06/2016 the matter was adjourned to grant one

opportunity to the respondent. Even today there is no appearance on behalf

of the respondent. Hence the learned counsel for the petitioner has been

heard by issuing Rule and making the same returnable forthwith.

The petitioner is aggrieved by the order passed below Exhibit-59

dated 11/12/2014 by which the prayer seeking impounding of document

dated 18/11/2016 has been rejected.

2. The petitioner is the original defendant in R.C.S. No.36 of 2007

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which has been filed by the respondent for declaration of her ownership and

for permanent injunction. In the said suit, the petitioner filed his written

statement and took the stand that the respondent executed a relinquishment

deed on 18/11/1996 in his favour. In the said suit during the course of

evidence, this relinquishment deed was sought to be brought on record. By

order passed below Exhibit-47, the trial Court held the same to be

inadmissible as it was not registered. The petitioner then filed an

application below Exhibit-51 for impounding the said document. However

this application was not prosecuted by making an endorsement to that effect

on 13/02/2014 and thereafter the petitioner moved a fresh application

below Exhibit-59 stating that the earlier application was not pressed due to

shortage of funds. The trial Court rejected said application on the ground

that earlier application though filed had not been pressed.

3. Considering the fact that the petitioner had pleaded about the

relinquishment deed dated 18/11/1996 in his written statement and the

earlier application at Exhibit-51 was not pressed due to financial constraints,

it is clear that the prayer in that regard for seeking impounding was not

considered on merits. The petitioner has assigned reasons as to why the

earlier application was not prosecuted. The trial Court ought to have

entertained this application in the light of said explanation furnished. As

the petitioner has now stated that funds were now available, there were

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change in circumstances and hence the application was required to be

considered on its merits. As the application has been rejected only on that

count, the impugned order is liable to be set aside. Hence the following

order is passed :

(i) The order dated 11/12/2014 passed below Exhibit-59 is set aside.

(ii) The application below Exhibit-59 shall be decided on merits and

in the light of observations made in this order.

Rule is made absolute in aforesaid terms with no order as to

costs.

JUDGE

Asmita