Bombay High Court
Narmadabai Gangaram Lahale And ... vs Sau. Shewantabai Bhimrao ... on 1 September, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 1628 OF 2015
PETITIONERS : 1] Narmadabai Gangaram Lahale,
Aged about 50 years, Occu. Household,
R/o Anvi Mirzapur, Tq. And Dist. Akola.
2] Gangaram S/o Shrikrushna Lahale,
(real name Digamber S/o Shrikrushna Lahale)
Aged about 66 years, Occu. Agriculturist,
ig R/o Anvi Mirzapur, Tq. & Dist. Akola.
- VERSUS -
RESPONDENT : Sau. Shewantabai Bhimrao Nandurkar,
Aged about 70 years, Occu. Agriculturist,
R/o Anvi Mirzapur, Tq. And Dist. Akola.
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Mr. S. V. Sohoni, Advocate for the petitioners.
Mr. N. B. Rathod, Advocate for the respondent.
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CORAM : PRASANNA B. VARALE, J.
DATE : SEPTEMBER 01, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. With the consent of
the learned counsel for the parties, the petition is heard finally at the
stage of admission itself.
2] By this petition, the petitionerS are before this Court
challenging the orders passed by the learned Civil Judge, Senior
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Division, Akola, dated 05.02.2015 and 13.02.2015 passed below passed
below Exh.141 and Exh.145, respectively, in Regular Civil Suit No.
881/1999, thereby allowing production of documents as requested by
the respondent.
3] The respondent/plaintiff had filed a Regular civil Suit No.
881/1999 before the Court of Civil Judge, Senior Division, Akola. The
said civil suit came to be dismissed and the counter claim of the
petitioners/original defendants came to be decreed. Against dismissal
of the suit, an appeal was preferred by the respondent/plaintiff. The
learned Ad-hoc District Judge thought it fit to remand the matter back
to the trial Court for hearing afresh by framing issues for adjudication
and accordingly, the judgment and order was passed by the Appellate
Court, dated 30.10.2014.
4] The respondent/plaintiff submitted her evidence on
affidavit on 08.01.2015. On 23.01.2015, an application (Exh.140) was
submitted for grant of time to produce documents. On 31.01.2015, the
respondent/plaintiff was subjected to cross-examination. On 05.2.2015,
an application (Exh.141) was filed seeking permission to produce
certain documents on record and on the same day, the trial Court
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passed the following order :
"Heard. In the interest of justice, production of
documents is allowed.".
On the very day, the respondent/plaintiff tendered her evidence on
affidavit (Exh.143). On 10.02.2015, an application (Exh.145) was
filed by the respondent/plaintiff seeking permission to submit
additional evidence before the Court. The application was opposed by
the petitioners/defendants by submitting say. On 13.02.2015, the trial
Court passed the following order :
"Heard both the sides. In the interest of justice,
application is allowed.".
5] Mr. Sohoni, the learned counsel for the petitioners
vehemently submitted that the learned trial Court allowed the
applications field at the instance of the respondent/plaintiff,
mechanically. He submitted that no reasons are assigned for allowing
the applications even though they were filed at the stage of either cross-
examination of the plaintiff or after submitting evidence on affidavit at
the subsequent stage. The learned counsel further submitted that the
application (Exh.145) filed by the plaintiff was referring to certain facts
which were contrary to the record. The learned counsel submitted that
as the orders impugned in the present petition are unsustainable and
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untenable, they be quashed and set aside.
6] Mr. Rathod, the learned counsel for the respondent in
support of the orders impugned in the present petition, has relied on
the judgment the Apex Court in the case of K.K. Velusamy .vs. N.
Planisamy, reported in (2011) 11 Supreme Court Cases 275. It was
the submission of the learned counsel that the inherent powers of the
Court are to be exercised for meeting the ends of justice. His
submission was, even though the applications were filed after cross-
examination of the plaintiff, the same cannot be a reason ipso facto to
reject the applications.
7] I have gone through the material placed on record on the
backdrop of the submissions of the learned counsel for the respective
parties. It is not in dispute that the respondent/plaintiff had submitted
her first application on 23.01.2015 post submission of her evidence on
affidavit. It would be interesting to note the tenor and contents of the
application. It is titled as "application for grant of time to file
documents on record." In the contents of the application, it is
submitted that the applicant/plaintiff be permitted to file some
important documents on record. The application, least to say, is as
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vague as it could be. The application is silent on the aspects namely
which important documents the plaintiff wanted to file on record i.e.
nature of the documents or reason necessitating the plaintiff to submit
application before the Court. The learned Judge passed the orders
stating "allowed". No reasons are assigned for allowing the application.
It is interesting to note that even though the application was allowed
without assigning any reason, the respondent/ plaintiff failed to file any
document on record and submitted second application on 05.02.2015.
In this application, it is submitted that the applicant/plaintiff is willing
to file on record certain important documents namely tax receipts and
form No.8. If the list of documents filed along with the application is
perused, it refers to a copy of Form No.8 of year 2001 - 2002, tax
receipts of 2002, 2003, 2004 and school leaving certificate dated
03.02.2015 of Ku. Shewti Shankar. Though, the application was
opposed, the learned trial Judge again by not assigning any reason
allowed the application by only referring that 'production of documents
is allowed in the interest of justice'. The plaintiff again submitted her
evidence on affidavit.
8] On 10.02.2015, the plaintiff submitted an application
(Exh.145) seeking permission for production of additional evidence.
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On a perusal of the application, I find considerable merit in the
submission of the learned counsel for the petitioners that the
application is referring to certain facts, which were contrary to the
record. In the application it was submitted that the applicant/plaintiff
presented certain important documents in the Court and the Court has
taken those documents on record and "directed the plaintiff to produce
additional evidence and accordingly the plaintiff/applicant submitted
additional evidence." There is nothing on record to show that the trial
Court directed the party to produce on record the additional evidence.
In spite of all these facts, the learned Judge allowed the application.
The course adopted by the learned Judge allowing the applications
without assigning any reason cannot be appreciated.
9] Though, the learned counsel for the respondent placed
heavy reliance on the judgment of the Apex Court in K.K. Velusamy's
case (supra) and though, there cannot be any dispute on the
proposition of law reflected in the judgment, the Hon'ble Apex Court
itself in the said judgment observed with cautionary words which read
thus :
15. ".... ...The need for the Court to act in a manner
to achieve the ends of justice (subject to the need to
comply with the law) does not end when arguments
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are heard and judgment is reserved. If there is abuse
of the process of the Court, or if interests of justice
require the court to do something or take note of
something, the discretion to do those things not
disappear merely because the arguments are heard,
either fully or partly. The convention that no
application should be entertained once the trial or
hearing is concluded and the case is reserved for
judgment is a sound rule, but not a straitjacket
formula. There can always be exceptions in
exceptional or extraordinary circumstances to meet the
ends of justice and to prevent abuse of process of court,
subject to the limitation recognized with reference to
exercise of power under Section 151 of the Code."
(emphasis supplied)
10] Thus, while dealing with such an application, it is expected
that there should be a reflection of the satisfaction of the Court while
allowing the application that the case was either exceptional or
extraordinary or the Court was convinced that reasons assigned in the
application were of such nature that allowing the application would
meet the ends of justice and/or would prevent abuse of process of the
Court. The orders impugned in the present petition nowhere reflect any
of such aspect. Thus, the impugned orders passed by the trial Court are
clearly unsustainable.
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11] In view of the above referred aspects, in my opinion, the
ends of justice would be met by quashing and setting aside the orders
impugned in the present petition and directing the learned Civil Judge,
Senior Division, Akola to pass reasoned order afresh on the applications.
12] In the result, the writ petition is allowed.
The orders passed by the learned Civil Judge, Senior
Division, Akola, dated 05.02.2015 and 13.02.2015 below below
Exh.141 and Exh.145, respectively, in Regular Civil Suit No. 881/1999,
are hereby quashed and set aside. The matter is remanded back to the
learned Civil Judge, Senior Division, Akola for passing reasoned order
afresh on the applications. This exercise be undertaken within four
weeks from today.
Needless to state that if a request is made by the learned
counsel for the parties for giving them opportunity of hearing on the
applications, the trial Court may grant such an opportunity to the
counsel for the parties and decide the applications.
Rule is made absolute in the aforesaid terms. The writ
petition is disposed of. No order as to costs.
JUDGE
Diwale
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C E R T I F I C A T E
"I certify that this Judgment/order uploaded is a true and
correct copy of original signed Judgment/Order."
Uploaded By : Parag P. Diwale, P.A. Uploaded on: 06.09.2016
