Bombay High Court
Sureshkumar S/O. Shankarlal ... vs Davinderkumar S/O Chmanlalji ... on 28 March, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 1998 OF 2016
1. Sureshkumar s/o Shankarlal Miglani
aged about 49 yrs., Occp. Business.
2. Dilipkumar s/o Shankarlal Miglani,
aged about 45 yrs., Occp. Business.
Both r/o Yash Handlooms, Near Gandhi
Putla, New Itwari Road,
Nagpur. ig :: PETITIONERS
.. Versus
..
1. Davinderkumar s/o Chamanlalji Batra
aged about 45 yrs., Occp. Business,
r/o Pachpaoli Road, Opp. Daga Hospital,
Nagpur.
2. Sapna w/o Santlal Batra
aged about 51 yrs., Occp. Household,
Near Janpad, Kailash Nagar,
Chhindwara (M.P.)
3. Ramesh s/o Shankarlal Miglani
aged about 55 yrs., Occp. Business,
r/o Nagoba Galli, Jalapura, Nagpur.
4. Naresh s/o Shankarlal Miglani,
aged about 46 yrs., Occp. Business,
5. Rajesh s/o Shankarlal Miglani,
aged 40 yrs., Occ. Business,
6. Mukesh s/o Shankarlal Miglani,
aged 40 yrs., Occ. Business,
7. Ganesh s/o Shankarlal Miglani,
aged about 37 yrs., Occp. Business,
Resp Nos. 4-7 r/o Plot No.64,
Old Subhedar Layout, Nagpur.:: RESPONDENTS
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...................................................................................................................................
Shri R. M. Sharma, Advocate for the petitioners.
Shri R. R. Shrivastava, Advocate for respondent No.1.
...................................................................................................................................
CORAM : S. B. SHUKRE, J.
DATED : 28th MARCH, 2016.
O R A L J U D G M E N T
O R A L J U D G M E N T
1. Heard.
2. Rule. Rule made returnable forthwith. Heard finally by
consent.
3. Issuance of notice to respondent Nos. 2 to 7, as submitted
by the learned Counsel for respondent No.1, does not appear to be
necessary. Learned Counsel for the petitioner, although has not
conceded anything about dispensing of the notice, has only submitted
that an appropriate order in that regard may be passed. Accordingly,
notice to respondent Nos. 2 to 7 has been dispensed with. It is also
for the reason that respondent Nos. 2 to 7 do not seem to have any
direct interest in the limited controversy involved in this petition,
which pertains to legality and correctness of the order passed on
10/3/2016 in Regular Civil Appeal No. 744 of 2012 by the learned
District Judge, Nagpur thereby rejecting application vide Exh.46 of the
petitioners to examine as a witness the Executive Engineer (Public
Works Road), Nagpur Municipal Corporation, Nagpur.
4. By the impugned order, it is seen, the learned District Judge
has rejected the application vide Exh.46 only on the ground that in the
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absence of any pleadings regarding the exact area, that is going to be
acquired by the Nagpur Municipal Corporation in the road widening
project out of the said property, has not been pleaded, the petitioner
cannot be permitted to bring on record the evidence relating to the
exact area which is going to be acquired by the Nagpur Municipal
Corporation. However, it is seen from the order passed by this Court
on 07/12/2015 in Writ Petition No. 6500 of 2015 that this Court has
already found that there is present in the written statement of the
petitioner a pleading taken generally that some portion from out of the
said property is going to be acquired by the Corporation in its road
widening project and, therefore, this Court further found that
whatever subsequent developments that took place after filing of the
suit, need not be necessarily incorporated in the pleadings taken in the
written statement. By seeking to examine the concerned Executive
Engineer, the petitioners were only making an attempt to bring on
record some material, which was in the nature of elaboration of the
plea generally taken by the petitioners in their written statement.
Therefore, I find that the impugned order cannot be sustained in law,
in as much as it has been passed without taking into consideration the
observations made by this Court in its order dated 07/12/2015.
5. Of course, learned Counsel for respondent No.1 has
submitted that even if such evidence is allowed to be taken on record,
it cannot be considered in view of the fact that the notification dated
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12/11/2014 regarding acquisition of some area for road widening
project had been challenged by some of the other affected plot owners
by filing a writ petition in which the Division Bench of this Court has
passed an order of maintenance of status quo by the parties.
6. Learned Counsel for the petitioners submits that even
though such an order has been passed by the Division Bench of this
Court, the evidence, which is sought to be brought on record by the
petitioners can turn into the relevant evidence if ultimately the said
writ petition is to be dismissed by the Division Bench of this Court.
7. To my mind, the adjudication, that such an evidence cannot
be considered at this stage, is something which pertains to the merits
of the appeal pending before the first appellate Court and it could be
considered appropriately by that Court at appropriate time. Therefore,
there would be no harm or prejudice to the respondent No.1 if the
evidence is taken on record. On the other hand, prejudice could be
caused to the petitioners. If such an evidence is not allowed to be
brought on record and the writ petition is to be dismissed, it might
prejudicially affect the defence of the petitioners and in that case, there
would be likelihood of multiplicity of proceedings and possibly further
delay. To avoid such a scenario from emerging, I find that at least the
application filed for bringing on record the evidence of the concerned
officer could be allowed at this stage and the question as to whether or
not such an evidence could be taken in consideration in view of the
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interim order passed by the Division Bench of this Court would have to
be left to be decided appropriately by the first appellate Court.
8. In that view of the matter, the following order is passed.:
I. The writ petition is allowed.
II. The application vide Exh.46 is allowed.
III. The petitioners are permitted to adduce the evidence of the
concerned Executive Engineer in terms of prayer of the
application vide Exh.46.
IV. Respondent No.1 shall be given liberty to cross-examine
the said witness.
V. The evidence shall be recorded by the first appellate Court.
The relevancy of such an evidence, however, would be decided
appropriately by the first appellate Court in the light of the
interim order passed by the Division Bench of this Court in
Writ Petition No. 6500 of 2015.
VI. All contentions of the parties with regard to relevancy of
the evidence are kept open.
VII. The evidence shall be recorded within two weeks from the
date of this order and the appeal shall be disposed of finally on
merits within four weeks from completion of recording of the
evidence.
JUDGE
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