Bombay High Court
Surajmal Suwalal Sharma vs Gopal Surajmal Sharma And Another on 16 August, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER No.12 OF 2017
Surajmal Suwalal Sharma,
Aged about 75 years,
Occupation : Retired,
R/o. L-44, Vidarbha Housing Board Colony,
Gorakshan Road, Akola. : APPELLANT
...VERSUS...
1. Gopal Surajmal Sharma,
Aged about 49 years,
Occupation : Service.
2. Sau. Sunita Gopal Sharma,
Aged about 44 years,
Occupation : Household.
Both residents of L-44, Vidarbha Housing
Board Colony, Gorakshan Road, Akola. : RESPONDENTS
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Shri U.N. Vyas, Advocate for the Appellant.
Shri S.A. Mohta, Advocate for the Respondents.
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CORAM : S.B. SHUKRE, J.
th
DATE : 16
AUGUST, 2017.
ORAL JUDGMENT :
1. Heard.
2. Admit. Heard finally by consent.
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3. Upon hearing both sides and perusing paper book of the
appeal, the only point which arises for my consideration is :
Whether the First Appellate Court, on the basis of
evidence available on record, could have pronounced
the judgment in view of the provision of Order XLI
Rule 24 of the Civil Procedure Code ?
4. Although it is submitted by Shri U.N. Vyas, learned counsel
for the appellant that the First Appellate Court could have very well
pronounced the judgment in this case without remanding the matter to
the trial Court there being available on record sufficient evidence and
material to do so, I find merit in the argument of the learned counsel for
the respondents when he submits that this case also involves an issue of
prejudice, the extent of which cannot be gauged merely by considering
the evidence available on record.
5. It is true that there is an order passed by the trial Court on an
application filed under Order VII Rule 14 (Exh.-12) seeking leave of the
Court to file on record original sale-deed at the time of adducing of the
evidence, which was not filed by entering the same in the list of
documents annexed to the plaint and at the time of filing of the suit. By
this order, the trial Court allowed the application on the same day. It is
well settled law that when such an application is to be decided, it must
be done by passing a reasoned order. However, perusal of the order
passed below Exh.-12 shows that it was not to be. The application was
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decided in one word "allowed" and that is all. It is seen from the paper
book of the case that at the time of plaintiff's evidence, when the plaintiff
sought to tender this document in evidence, an objection was raised
which was grounded upon the provision of Order VII Rule 14. The trial
Court, however, postponed its decision on this objection by holding that
it would be decided at the time of final disposal of the suit. One does not
know what was the logic behind passing of such an order by the trial
Court, when it knew that it were the Court only which had granted leave
to file the document by passing an order below the relevant application
at Exh.-12. The fact is that the trial Court did not decide the objection at
that time and reserved its verdict thereupon till final disposal of the suit.
6. Now, this would add to the responsibility of the trial Court,
which it could have otherwise discharged at the time when the objection
was taken. A perusal of the judgment of the trial Court indicates that
this responsibility was neither realized by it nor was discharged by it.
There is no reference whatsoever in the judgment of the trial Court to
such an objection. It only speaks of grant of leave by it to file the
sale-deed, by passing an order below application at Exh.-12.
7. In these circumstances, the First Appellate Court has rightly
observed that the issue of prejudice to the defence of the defendant has
arisen and I do not see any illegality or perversity in the view so taken by
the First Appellate Court. This is something which is likely to cause
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prejudice to either of the parties. If the objection is to be upheld, it is
likely to change the course of justice and the nature of judgment that
would be delivered in the instant case. If the objection is to be rejected,
then also, there would be a prejudice to the defence of the defendants as
the defendants would no longer be in a position to decide upon the need
for adducing any additional evidence in order to counter the effects of
receiving in evidence a document, which in their opinion, ought not to
have been received in view of the prohibition imposed under Order VII
Rule 14 of the Civil Procedure Code. So, the question of prejudice to
either of the party is writ large in this case and, therefore, it could not
have been possible for the First Appellate Court to pronounce the
judgment, by resorting to the provision of Order XLI Rule 24 of the Civil
Procedure Code.
8. I do not see any illegality or arbitrariness in the impugned
order. There is no merit in this appeal. It deserves to be dismissed.
However, as rightly submitted by the learned counsel for the appellant,
an order for expeditious disposal of this suit, owing to the nature of
dispute and the interse relationships of the parties would be due to both
the parties.
9. The appeal stands dismissed.
10. The parties to bear their own costs.
11. The trial Court is directed to dispose of the suit in accordance
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with law in terms of the directions given by the First Appellate Court
within two months from the date of appearance of the parties.
12. The parties to appear before the trial Court on 27 th
September, 2017.
JUDGE
okMksns
