Bombay High Court
Laxmikant Ramchandra Thombre vs Suryakant Maruti Kokate Through ... on 14 December, 2017
Bench: S.P. Deshmukh
1 WP - 3101-2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3101 OF 2014
Laxmikant S/o. Ramchandra Thombre,
Age : 79 years, Occu.: Agri. & Advocate,
R/o. Osmanabad, Tq. & Dist. Osmanabad .. Petitioner
(Orig. Plaintiff)
Versus
1) Suryakant S/o. Maruti Kokate (died)
through his LRs.
1A. Smt. Pusplata W/o. Suryakant Kokate,
Age : Major, Occu. Household,
R/o. Ingle Galli, Osmanabad,
Tq. & Dist. Osmanabad
1B. Pramod S/o. Suryakant Kokate,
Age : Major, Occu. Agriculture,
R/o. As above
1C. Pravin S/o. Suryakant Kokate,
Age : Major, Occu. Agriculture,
R/o. As above
1D. Pratibha D/o. Suryakant Kokate,
Age : Major, Occu. Agriculture,
R/o. As above
2) Chandrakant S/o. Maruti Kokate,
Age : Major, Occu. Agriculture,
R/o. Ingle Galli, Osmanabad,
Tq. & Dist. Osmanabad
3) Vishwas S/o. Maruti Kokate,
Age : Major, Occu. : Agriculture,
R/o. As above
4) Balasaheb S/o. Maruti Kokate (Died)
Through his LRs.
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2 WP - 3101-2014
4A. Ravindra S/o. Balasaheb Kokate,
Age : Major, Occu. Agriculture,
R/o. Ingle Galli, Osmanabad,
Tq. & Dist. Osmanabad
4B. Shrikant S/o. Balasaheb Kokate,
Age : Major, Occu. Agriculture,
R/o. As above
5) Sunil S/o. Maruti Kokate,
Age : Major, Occu. Agriculture,
R/o. As above
6) Bharat S/o. Maruti Kokate,
Age : Major, Occu. Agriculture,
R/o. As above
7) Sampat S/o. Maruti Kokate,
Age : Major, Occu. Agriculture,
R/o. Ingle Galli, Osmanabad,
Tq. & Dist. Osmanabad .. Respondents
(Orig. Defendants)
...
Mr. S.G. Chapalgaonkar, Advocate for petitioner
Mr. Sujit Patil, Advocate h/f Mr. V.D. Salunke, Advocate for
respondents
...
CORAM : SUNIL P. DESHMUKH, J.
DATE : 14-12-2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard learned
counsel Mr. S.G. Chapalgaonkar for petitioner and Mr. Sujit Patil,
learned counsel h/f Mr. V.D. Salunke, learned counsel appearing for
respondents no.1-A to 7, finally.
3 WP - 3101-2014
2. Mr. Chapalgaonkar, learned counsel submits that while
the plaintiff's examination-in-chief and cross-examination had been
over on 20-08-2013, the respondents had opportunity to cross-
examine him with respect to measurement of March - 2012, yet,
there had been failure to cross-examine and in the circumstances,
particularly having regard to the decisions thereon showing order
XVIII, rule 17 of code of civil procedure can hardly be availed of in
order to fill up the lacuna or to cover up the omissions, particularly,
laying stress on decision in the case of Balkrishna Shivap Shetty V/s.
Mahesh Nenshi Bhakta and others reported in 2003(4) Bom.C.R. 293 as well as
decision of supreme court in the case of K.K. Velusamy V/s. N. Palanisamy
reported in (2011) 11 S.C.C. 275, drawing attention to paragraph no. 19
of the same. He further purports to refer to conduct of the
defendant in seeking adjournment to adduce evidence. He,
therefore, urges to allow the writ petition and set aside the
impugned order.
3. Whereas Mr. Sujit Patil, learned counsel appearing for
respondents submits that the decision of the courts cannot be put in
straight jacket, for the observations emerging are on the factual
background therein. The factual scenario in the present matter is
quite different. He submits that although the measurement by
4 WP - 3101-2014
taluka inspector of land records had been on 09-03-2012 and its
map and report had been filed on record, yet, the same were not
effectively brought on record till amendment to written statement
had been allowed and that had been after plaintiff had been cross-
examined on 20-08-2013. The record would bear that amendment
to written statement had been allowed on 31-11-2013 and,
thereafter, the plaint had also been amended and, as such, the
request had been made under application exhibit - 174 for recalling
plaintiff for cross-examination.
4. Learned counsel Mr. Patil refers to that the court had
amply taken stock of the situation as well as the legal position as
may appear from the contents of paragraphs no. 5, 6 and 7 of the
impugned order. He submits that while the discretion has been
exercised in favour of the party applying for recalling the witness for
cross-examination with reference to the factual scenario, the
discretionary powers invested in the court under the constitution of
india, may not be invoked in the present matter, for, sound reasons
and on sound basis, application exhibit - 174 has been allowed.
Supreme court in the case of Velusamy, as referred to in paragraph
no. 19 that a routine exercise of power under order XVIII, rule 17 of
code of civil procedure is not intended, for, it may defeat the very
purpose of expeditious prosecution of the matter, however, when the
application is bonafide and where facts will assist the court, to clarify
5 WP - 3101-2014
the evidence on the issues and also in rendering justice, and if there
are valid reasons for non-production of the evidence earlier, exercise
of powers under order XVIII, rule 17, is not precluded.
5. When the court, in its discretion referring to the factual
scenario, has considered that application deserves to be allowed with
costs, I deem it expedient to refrain from passing any order
meddling with the impugned order.
6. Writ Petition is not entertained and is disposed of.
7. Rule stands discharged.
[SUNIL P. DESHMUKH]
JUDGE
arp/
