Sudhatai Shrikrishna Kand And ... vs Vishwnath Narayan Patel, L.Rs. ...
2017 Latest Caselaw 9621 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD


                         WRIT PETITION NO. 6261 OF 2014

1     Sau.Sudhatai Shrikrishna Kand,
      Age : 70 years, Occupation : Agriculture.

2     Shrikrishna V. Kand,
      Age : 75 years, Occupation : Agriculture.

      Both R/o Chintamani Bunglow,
      Savarkar Nagar, Gangapur Road,
      Nashik.

      Petitioner Nos.1 and 2 through
      GPA Vijay Vamanrao Deshmukh,
      Age : 64 years,
      Occupation : Agriculture,
      R/o Brahman Gaon, 
      Taluka Kopargaon,
      District Ahmednagar.
                                             ...PETITIONERS
                                             (Original Defendants)
      -VERSUS-


1     Vishwanath Narayan Patel,
      deceased through L.Rs.
      A)  Deelip Vishwanath Patel,
            Age : 64 years,
            Occupation : Agriculture.

      B)     Pushkar Deelip Patel,
             Age : 25 years,
             Occupation : Agriculture,
      Both R/o Laxminarayan Road,
      Yeola, District Nashik.
                                             ...RESPONDENTS
                                             (Original Plaintiffs)




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                                         ...
               Advocate for the Petitioners : Shri Kulkarni Sanket S..
               Advocate for the Respondents : Shri C.S.Tembhurnikar.
                                         ...


                                        CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 14th December, 2017

Oral Judgment :

1 Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2 The Petitioners, by this petition, have put forth prayer clauses

(B) and (C) as under:-

"(B) Quash and set aside the order passed below Exhibit 1 dated 17.06.2014 and order passed below Exhibit 95 dated 11.07.2014 in Regular Civil Suit No.231/2000 on the file of Civil Judge Junior Division, Kopargaon, District Ahmednagar.

(C) Pending hearing and final disposal of the writ petition, grant stay to the order passed below Exhibit 1 dated 17.06.2014 and order passed below Exhibit 95 dated 11.07.2014 in Regular Civil Suit No.231/2000 on the file of Civil Judge Junior Division, Kopargaon, District Ahmednagar."

3 I have considered the strenuous submissions of the learned

Advocates for the respective sides.

4 The learned Advocate for the Respondents has prayed that

this petition be dismissed with heavy costs and the suit be expedited.

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5               The   issue   raised   in   this   petition   is   with   regard   to   the 

Defendants seeking to examine the Taluka Inspector of Land Records

(TILR) with regard to the report that he had submitted in connection with

the measurement of the suit properties. The summons were issued by the

Trial Court in RCS No.231/2000. However, on 01.04.2014, a purshis was

filed on behalf of the office of the TILR, informing the Court that the

concerned TILR, who has measured the land, has passed away. Thereafter,

the matter was adjourned to 19.04.2014 and then to 10.06.2014 and

17.06.2014. By order dated 17.06.2014, the evidence of the Petitioners/

Defendants was closed and the matter was posted for final arguments.

6 The Petitioners/ Defendants preferred an application Exhibit-

94 on 17.06.2014 praying for extension of time. It was not brought to the

notice of the Court that Defendant No.1 had met with an accident, which

was averred for the first time in Exhibit-95. The Trial Court has rejected

Exhibit-94 by the order dated 17.06.2014 for the reason that the suit was

pending for almost 14 years and the Defendants were not adducing

evidence.

7 I find from the record that the Plaintiffs closed the recording

of their evidence on 17.02.2014. So, it was after 14 years, that the

evidence of the Plaintiffs was closed. In this backdrop, the Trial Court's

observation that the Defendants are delaying the suit, which is pending for

14 years, is an attribute which cannot be attributed to the Defendants. The

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Defendants legitimately got a right to lead evidence on 26.02.2014 when

the summons were issued to the TILR. The purshis was filed on

01.04.2014 by the office of the TILR informing about his demise. The

month of May was a period of vacation and it was on 17.06.2014, after

reopening, that the Trial Court has closed the evidence of the Defendants.

8 Notwithstanding the above, it cannot be ignored that the

Defendants could have moved an application on 01.04.2014 or

19.04.2014 that they would take steps for seeking summons to any other

officer from the office of the TILR to lead evidence on the basis of the

record. That has not been done.

9 Insofar as the accident of Defendant No.1 is concerned,

certain medical records have been placed before this Court to indicate the

injuries suffered by Petitioner No.1/ Defendant No.1.

10 In order to meet the ends of justice and to ensure that every

litigating side gets an opportunity of pleading and supporting his case

with oral and documentary evidence, I am of the view that this petition

can be allowed by imposing costs on the Petitioners.

11 The learned Advocate for the Respondents submits that the

costs may be donated to the Advocate Association's Bar Library, High

Court, Aurangabad.

12 Considering the above, this Writ Petition is partly allowed.

The order dated 11.07.2014 is quashed and set aside and the application

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Exhibit-95 is allowed. The order dated 17.06.2014 closing the evidence of

the Defendants is set aside on the following conditions:-

(a) The Petitioners shall deposit costs of Rs.5000/- (Rupees Five

Thousand) with the Advocate Association's Bar Library, High

Court, Aurangabad on or before 15.01.2018 and produce a

copy of the receipt of deposit before the Trial Court on or

before 20.01.2018.

(b) The Petitioners/ Defendants shall step into the witness box for

leading their oral evidence or through an affidavit in lieu

thereof, on or before 20.01.2018 and shall not seek an

adjournment.

(c) Simultaneously, if the Petitioners/ Defendants desire to

examine any competent officer from the office of the TILR

with regard to which the summons were earlier issued to the

TILR, they may do so by filing an application on or before

20.01.2018 which may be dealt with by the Trial Court

independently and this will not be a ground for evading the

recording of oral evidence of the Defendants on or before

20.01.2018.

(d) If any of the above stated conditions are not complied with by

the Petitioners/ Defendants, the Trial Court shall proceed to

hear the arguments of the litigating sides finally and the order

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dated 17.06.2014 shall then become operative.

13 Rule is made partly absolute in the above terms.

kps                                                     (RAVINDRA V. GHUGE, J.)