Bombay High Court
Sachin Ramesh Mhatre vs Aditi Sachin Mhatre on 8 March, 2016
Bench: R.M. Savant
(29)-WP-2767-16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2767 OF 2016
Sachin Ramesh Mhatre ]
Aged 38 years, Occ: Business, ]
of Indian Inhabitant, residing at ]
B-701, Center Point, Opp. TMC ]
Building, Panchpakhadi, ]
Thane-400 602 ].. Petitioner
Versus
Aditi Sachin Mhatre ]
Aged 33 years, Occ: Service, ]
of Mumbai Indian Inhabitant, ]
residing at 104, First Floor, ]
Avadhut Co-operative Housing ]
Society Ltd., Shiv Sena Bhavan, ]
Path, Dadar, Mumbai-400 028 ].. Respondent
Mr. Mayur Khandeparkar i/by Mr. Mehul A. Shah, for the Petitioner.
Mr. R. T. Lalwani i/by Mr. Prakash Mahadik, for the Respondent.
CORAM : R.M. SAVANT, J.
DATE : 8th MARCH 2016
ORAL JUDGMENT
1. Rule. With the consent of the Learned Counsel for the parties
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made returnable forthwith and heard.
2. The writ jurisdiction of this Court is invoked against the order
dated 03.02.2016 passed by the Learned Principal Judge of the Family
Court, Mumbai, by which order the Applications Exh.199 and Exh.221
filed by the Petitioner came to be partly allowed to the extent mentioned
in the operative part of the impugned order. In the operative part of the
impugned order, it is recorded to the effect that the documents which are
admitted by the Respondent in the Marriage Petition and which find a
place in paragraphs 6, 8, 10 and 11 of the impugned order shall be
exhibited.
3. The challenge to the impugned order is on the ground that
though the Petitioner has sought to produce a number of documents which
have been listed in Exhs. 106, 18, 18A and 200, the Trial Court has not
chosen to consider whether the said documents can be exhibited and save
and except the documents which are mentioned in the operative part of
the impugned order has rejected the exhibition of the documents which
find a place in the said lists.
4. It is not necessary to burden this order with unnecessary
details having regard to the controversy which lies in a narrow compass
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and in essence is as to whether the documents produced by the Petitioner
herein are required to be exhibited in view of the fact that they stand
proved in accordance with law. The impugned order discloses that the
Trial Court has rejected the said Applications Exh.199 and 221 which were
styled as application for taking "the evidence on record and allowing the
Petitioner to exhibit the evidence" meaning thereby that the Petitioner was
seeking to produce the said documents as exhibits on the ground that it
was the prime duty of the Petitioner to get the documents exhibited at the
relevant time and in spite of the fact that he had the legal wherewithal to
follow the procedure of production and exhibiting of the documents, the
said procedure was not followed. The Trial Court has also refused to
exhibit the documents on the ground that once the cross-examination of
the other party starts then to prove the document by oral evidence
automatically goes away. Prima-facie, from the record it does not appear
that the exercise of marking of the documents produced by the parties or
at least by the Petitioner was carried out before rejection of the
Applications Exh.199 and 221.
5. During the course of hearing of the above Petition, the
Learned Counsel for the Petitioner Mr. Mayur Khandeparkar made a
statement that the Petitioner would rely upon the documents which are
listed in Exh.106, 18, 18A and 200 and no other documents. This
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statement was made in the context of the fact that it was the submission of
the Learned Counsel appearing for the Respondent Mr. R. T. Lalwani that
the Petitioner seeks to rely upon host of documents may be numbering
more than 1500. It is required to be noted that the Petitioner has filed
about five affidavits-in-lieu of examination in chief under Order XVIII of
the CPC. The need for filing the said five affidavits need not be gone into
in the present proceedings. In terms of the procedure that is applicable. It
would have to be seen whether the documents which the Petitioner seeks
to rely upon have been proved in accordance with law having regard to
the averments made in the said affidavits of evidence. Since the
Applications Exh.199 and 221 have been substantially rejected, on the
grounds which have been adverted to hereinabove, in my view, the
interest of justice would be served if the following directions are issued :-
I) The documents listed in Exh.106, 18, 18A and 200
(except Item No.4 in Exh.200 at page No.124) which the
Learned Counsel for the Petitioner Mr. Khandeparkar on
instructions of the Petitioner who is present in Court states
the Petitioner would delete. The Learned Judge of the
Family Court would consider whether the said documents
can be exhibited on the touchstone of the affidavits of
evidence filed by the Petitioner.
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II) In view of the statement made by the Learned Counsel
for the Petitioner Mr. Khandeparkar that Exh.106 is
relateable to the affidavit of evidence dated 02.08.2013,
Exh.18 is relateable to the affidavit of examination-in-chief
dated 10.12.2013, Exh.18A and 19A are relateable to
affidavits of examination-in-chief dated 06.09.2014,
Exh.200 is relateable to the two affidavits of examination-
in-chief dated 10.12.2015, Exh.107 and 19B. The Learned
Principal Judge of the Family Court to consider the said
documents as regards their exhibition on the touchstone of
the said relevant affidavits and would mark the same as
exhibits if the Court is satisfied that the same are proved in
accordance with law.
III) It is clarified that Item No.4 at page No.124 of the list
of Exh.200 stands deleted in terms of the statement made
by Mr. Khandeparkar on instructions.
IV) The exercise of marking the said documents to be
carried out by the Learned Principal Judge of the Family
Court prior to the recommencement of the cross-
examination of the Respondent. The same to commence on
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10.03.2016 when the matter is slated before the Family
Court and to be completed within three days being the
outer limit.
V) In so far as the documents which are mentioned in the
impugned order which are to be marked as exhibits, the
impugned order to the said extent is retained. However, the
rest of the impugned order stands set aside and to be
substituted by the instant order.
VI) The Learned Counsel for the parties are agreeable to
the aforesaid course of action being followed.
6. The Petition is allowed to the aforesaid extent. Rule is
accordingly made absolute, with parties to bear their respective costs.
[R.M. SAVANT, J]
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