Tulsabai Mohan Pardeshi vs Mohan Shenphadu Pardeshi, Lrs ...
2016 Latest Caselaw 750 Bom

                                        1                   WP-3420.15-A.doc


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                           
                         BENCH AT AURANGABAD

                         WRIT PETITION NO. 3420 OF 2015




                                                   
     Tulsabai Mohan Pardeshi
     Age: 64 years, Occu. Agriculture,
     R/o. Kandari,




                                                  
     Tal & Dist. Jalgaon                                    ...Petitioner

              Versus

     1]       Mohan Shenphadu Pardeshi




                                      
              Since deceased through his legal heirs

     1A]
                             
              Smt. Sudhabai Mohan Pardeshi
              Age: 55 years, Occu. Household
                            
     1B]      Sagar Mohan Pardeshi
              Age: 36 years, Occu. Education

              Both R/o. Kandari, Tal. & Dist. Jalgaon
      


     1C]      Meerabai Uttam Pardeshi
              Age: 40 years, Occu. Household
   



              R/o. C/o. Uttam /Gopal Pardeshi
              Sunasgaon, Tal. Jalgaon Jamod,
              Dist. Buldhana





     1D]      Chhotibai Sanjeev Pardeshi
              Age: 37 years, Occu. Labour,
              R/o. Kandari,
              Tal. & Dist. Jalgaon.

     1E]      Munnibai Subhash Pardeshi





              Age: 36 years, Occu. Household,
              R/o. Motala, Tal. Bhusawal,
              Dist. Jalgaon

     1F]      Mathurabai Shenphadu Pardeshi
              Age: 88 years, Occu. Household,
              R/o. Kandari, Tql. & Dist. Jalgaon




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     2]       Ashabai Shenphadu Pardeshi




                                                                           
              Age: 70 years, Occu. Agriculture

     3]       Mathurabai Kisan Pardeshi




                                                   
              Age: 65 years, Occu. Household

              Petitioner Nos. 2 & 3 R/o. Raipur,
              Tal. & Dist. Jalgaon                          ...Respondents




                                                  
                                    .....
     Mr. P. S. Shendurnikar, Advocate for petitioner
     Mr. V. A. Pawar, Advocate for respondents No. 1A to 1E
                                    .....




                                       
                              ig   CORAM :   SUNIL P. DESHMUKH, J.

DATE : 18th MARCH, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally,

with consent.

2. The petition has been moved, aggrieved by order dated

26-11-2013 on Exhibit-25 in Regular Civil Appeal No. 189 of

2007 passed by Additional District Judge, Jalgaon, refusing

the request thereunder to take an action which is ministerial

in nature having regard to the order dated 21 st April, 2004 on

Exhibit-76 passed by 4th Joint Civil Judge, Senior Division,

Jalgaon in Regular Civil Suit No. 545 of 2002.

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3. Petitioner had instituted Regular Civil Suit No. 545 of

2002 seeking declaration and partition of her 1/12 th share in

the suit property including monetory compensation to be

received in respect of acquisition of land in Land Acquisition

Reference No. 460 of 2001. The respondents upon

appearance had filed joint written statement. Issues were

framed and the suit proceeded with.

4.

Petitioner had led oral and documentary evidence in

support of her claim and had filed affidavit of examination-in-

chief and was also cross examined by the respondents.

5. During the course of evidence, petitioner had relied on

copies of certain documents viz; Mutation Entry No. 1335 and

record or rights as referred to in the list of documents -

Exhibit-77. These documents were also referred to and relied

on in the examination-in-chief and had accordingly requested

the trial court to exhibit the same. Respondents did not

dispute the documents relied upon by the petitioner.

6. However, under inadvertence, the certified copies of

public documents though were duly proved, were not

exhibited during the trial.

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7. Respondents, aggrieved by the judgment and decree

passed by the trial court, have been in Regular Civil Appeal

No. 189 of 2007. Petitioner and her counsel were under

impression that aforesaid documents must have been duly

exhibited. However, during pendency of appeal while record

and proceedings was being seen, it came to the fore, that the

documents referred to herein above had been formally

remained to be exhibited. With reference to the same, as

such, application Exhibit-25 seeking to formally exhibit

certified copies of the public documents relied upon and

proved by present petitioner had been moved.

8. The appellate court in the impugned order has observed

thus;

" 1/- Perused the application, documents. Heard Ld. Advocate for the appellant and the respondent.

Respondent says that, the 7/12 extracts and mutation entries were referred in the evidence but they are not exhibited by inadvertence. They should be taken out from

"D" file and they should be exhibited Ld. Advocate Shri Keskar for the appellant argued that, the application amounts to giving permission to lead further evidence Order 41 Rule 27 of The Code of Civil Procedure. He also argued that this is permissible only if lower court had

5 WP-3420.15-A.doc

refused to admit some evidence or if it was not available

etc.

2/- Ld. Advocate Shri Paranjape argued that the documents were in examination in chief but they were not exhibited so they need to exhibited by now. Ld. Advocate

Shri Keskar also argued that suit was filed claiming partition in the amount of compensation. Such suit is not maintainable. So the exhibiting 7/12 extract etc. is out of

question.

3/-

Evidence of plaintiff/respondent No.1 did mention that, the 7/12 extracts and mutation entries are filed they

be exhibited. Ld. Civil Judge referred to the suit property in para No.6 of the Judgment. He said that, suit properties are acquired by the Government.

4/- Appeal is continuation of the suit. Suit was for partition. Suit properties were not disputed. The 7/12 extracts and mutation entries were referred to in the

evidence of the plaintiff. It is seen that, they are inadvertently not exhibited. If I allow the application the documents which were not exhibited they will have to be taken on record i.e. in "C" file and they will have to

exhibited in the file of the suit. Respondent does not want to produce those documents. As said earlier there was no dispute about the properties and their nature. So I hold that, the application as such is not tenable. ......"

6 WP-3420.15-A.doc

9. It appears that the petitioner can seldom, be considered

to be liable and/or responsible for the omission of performing

requisite act. In the circumstances, request under application

Exhibit-25 appears to be legitimate, exhibition of documents

is a formality in the present facts and circumstances.

10. Taking overall view in the matter, in order to avoid

controversy and inconvenience to the parties and having

regard to the facts as have been appearing hitherto which are

not in dispute, I deem it appropriate and expedient and it

would be in the interest of justice if the request, being made,

is allowed.

11. In the circumstances, writ petition is allowed. Rule is

made absolute in terms of prayer clause (A). Accordingly,

Exhibit-25 in Regular Civil Appeal No. 189 of 2007 pending

before the Additional District Judge, Jalgaon stands allowed.

( SUNIL P. DESHMUKH, J. )

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