Bombay High Court
Santram Yashwant More vs Manik Pandurang Patil And Another on 13 December, 2017
Bench: R.V. Ghuge
WP/4569/2016
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4569 OF 2016
Santram Yashwant More (Patil)
Age 55 years, Occ. Agriculture
R/o Talmod, Tq. Umerga,
District Osmanabad. ..Petitioner
Versus
1. Manik Pandurang Patil
Age 45 years, Occ. Agriculture
R/o Talmod, Tq. Umarga,
District Osmanabad.
2. Dattatray Pandurang Patil
Age 26 years, Occ. Agriculture
R/o as above. ..Respondents
...
Advocate for Petitioner : Shri Kulkarni Sanket
h/f Shri Kulkarni Suvidh
Advocate for Respondents : Shri Barde P. V.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: December 13, 2017
...
ORAL JUDGMENT :-
1. Rule.
2. By consent, Rule is made returnable forthwith and the
petition is taken up for final disposal.
3. The petitioner / defendant has putforth prayer clauses (B)
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and (C) as under:-
"(B) Quash and set aside the order passed below Exhibit 1
dated 22.2.2016 and exhibit 76 and 78 dated 1.4.2016 by the
Ld. Civil Judge Junior Division, Umerga in RCS No.142/2010.
(C) Be pleased to allow application filed below Exhibit 76
and 78 in RCS No.142/2010 on the file of Ld. Civil Judge
Junior Division Umerga."
4. I have considered the strenuous submissions of the learned
Advocates for the respective parties.
5. The plaintiff had closed his evidence on 20.7.2015.
Application Exhibit 67 seeking leave to file a counter claim under
Order VIII Rule 6A of the CPC was filed by the defendant and which
was rejected by order dated 20.1.2016. Since evidence was not led
by the petitioner / defendant, "No Evidence" order was passed by
the trial Court on 22.2.2016.
6. Application Exhibit 76 was filed by the defendant praying for
leave to file the counter claim and for recalling of the order dated
20.1.2016. Considering the objection raised by the respondents in
this petition, the petitioner submits that in so far as the rejection of
Exhibits 67 and 76 is concerned, the petitioner shall take recourse to
WP/4569/2016
a remedy as may be permissible in law. This petition is, therefore,
disposed off to the extent of the said issue, with liberty to the
petitioner to take recourse to a remedy if so permissible in law.
7. In so far as the "No Evidence" order is concerned, the trial
Court has rejected application Exhibit 78 for the reason that the
defendant appeared to have resorted to delaying tactics and has
failed to lead evidence practically for about ten months. Reasons
cited were not satisfactory to vacate the 'No Written Statement'
order.
8. Shri Barde submits that this petition deserves to be dismissed
with reference to the impugned order dated 1.4.2016, since the
defendant has consistently delayed the matter. In the alternative, he
submits that heavy costs be imposed and the said amount be
donated to the District Legal Aid Committee, Osmanabad.
9. I find from the record and the submissions of the learned
Advocates that the issue involved in the suit is with regard to an
immovable property. No doubt the defendant was agitating his
application Exhibit 67 and Exhibit 76 by which, he may have lost
time, but it cannot be ignored that even after the rejection of Exhibit
67 on 20.1.2016, the defendant did not show his willingness to lead
WP/4569/2016
evidence till 2.3.2016, when he preferred Exhibit 76. By imposing
costs on the defendant, his valuable right to lead evidence, keeping
in view the immovable property, can be secured with further
conditions.
10. This petition is, therefore, partly allowed. The order dated
22.2.2016, closing the evidence of the defendant and the impugned
order dated 1.4.2016, rejecting Exhibit 78 are set aside. Exhibit 78
is allowed, subject to an amount of Rs.5,000/- which the petitioner
shall deposit with the District Legal Aid Committee, Osmanabad
on/or before 15.1.2018, failing which this order shall stand recalled
and the impugned order dated 22.2.2016 and 1.4.2016 shall stand
restored with effect from 16.1.2018. No extension of time would be
granted.
11. Besides the above directions, the petitioner shall submit a list
of witnesses, if not already submitted, on/or before 15.1.2018. If the
plaintiff notices that the list of witnesses is unnecessarily enlarged by
including unconnected persons as witnesses, he would be at liberty
to raise an objection and trial Court shall decide the same
expeditiously. Notwithstanding this aspect, the petitioner /
defendant shall step into the witness box on 15.1.2018, either for
recording his oral examination-in-chief or for tendering an affidavit
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in lieu of examination-in-chief.
12. Unreasonable adjournments shall not be sought by the
litigating sides and especially the petitioner. The trial Court would
be at liberty to impose costs on the petitioner, if unreasonable
adjournments are sought.
13. Rule is made partly absolute in above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
