Bombay High Court
Shantilal Chagan Sure And Others vs Manohar Vishram Sure And Others on 28 July, 2017
Bench: S.P. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7765 OF 2017
1. Shantilal s/o Chagan Sure
Age : 45 years Occu: agril
R/o ; Surewadi, Harsool
Tq. and Dist.: Aurangabad.
2. Ganesh s/o Chagan Sure,
Age : 40 years Occu: agril
R/o ; Surewadi, Harsool
Tq. and Dist.: Aurangabad.
3. Sarubai w/o Shantilal Sure
Age : 42 years Occu: agril & household
R/o ; Surewadi, Harsool
Tq. and Dist.: Aurangabad.
...Petitioners
Versus
1. Manohar S/o Vishram Sure
Age : 45 years Occu: agril
R/o ; Surewadi, Harsool
Tq. and Dist.: Aurangabad.
2. Manabai w/o Ukhaji Dudhe
Age : 55 years Occu: Service
R/o : N-12 HUDCO Aurangabad.
3. Tulshiram s/o Dhansing Sure,
Age : 40 years Occu: agril
R/o ; Surewadi, Harsool
Tq. and Dist.: Aurangabad.
...Respondents
...
Mr. Narendra V. Mande, Advocate for petitioners
Ms. Pooja Langhe Patil, Advocate for respondent no. 1
...
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[CORAM: SUNIL P. DESHMUKH, J.]
Date: 28th July, 2017
JUDGMENT :
1. Rule. Rule made returnable forthwith and heard
finally with consent of learned advocates for the appearing
parties.
2. Writ petition is moved by defendants no. 1, 2 & 4
against order dated 2nd December, 2016, passed by 5th
joint civil judge, junior division, Aurangabad on application
exhibit-87 in regular civil suit no. 1342 of 2012.
3. Regular civil suit has been instituted by respondent
no. 1 - plaintiff, seeking perpetual injunction in respect of
suit property admeasuring about 1800 sq. ft. situated in
land survey no. 156/4, of village Surewadi /Harsool, taluka
and district Aurangabad.
4. While suit had been instituted in 2012, reference has
been made in the plaint to proceeding bearing regular civil
suit no. 679 of 2005 filed against one Satyabhamabai.
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5. Certified copies of plaint in regular civil suit no. 679 of
2005, application for temporary injunction in said suit as
well as certified copy of examination-in-chief in said suit are
sought to be produced under application exhibit-87.
6. Application exhibit-87 has been allowed under order
dated 2nd December, 2016.
7. The application had been resisted by present
petitioner contending that documents ought to have been
filed while presenting the suit or at least before evidence,
pursuant to Order XIII of the Code of Civil Procedure.
8. It appears that, it had been the case of petitioner -
defendant no. 1 that copies of said documents had not
been tendered along with the plaint. Suit proceeded and
evidence of other side had commenced and at that time
certified copies of documents referred to above have been
sought to be placed on record.
9. Learned counsel Mr. Narendra V. Mande for petitioner
purports to point out that the documents sought to be
produced on record were within the knowledge of plaintiff
which is also reflected in the plaint. He submits that at
least two occasions, on which production was possible, it
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had been avoided, its avoidance is totally malafide and
unfair. There was no whisper about the reason for delayed
production of documents and application exhibit-87 had
been granted only for the reason, it would be in the interest
of justice.
10. According to learned counsel Ms. Pooja Langhe Patil
for respondent - plaintiff, the documents are public
documents in nature and having regard to Section 75 of
the Indian Evidence Act, the application deserved to be
allowed. She refers to that there is no embargo on exercise
of power by the court to allow production at a later stage
of proceeding. She further purports to argue that even
production is allowed at the appellate stage and as such, no
illegality can be said to have been committed by passing
impugned order. Production of documents has been
allowed in the present matter of certified copies of
documents copies of which had already been placed on
record. She refers to and relies on a couple of reported
judgments viz. in the case of Chitrakala Fal Dessai V/s Balu
Marathe reported in 2006(5) ALL MR 438, and in the case of Venu
Gopal Pari and others V/s Nilconta Xete 1975 Lawsuit(Bom) 326.
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11. During the course of submission, learned counsel for
petitioners purports to refer to and rely on the case of
Nirmal Singh V/s Manoharlal reported in 2016(3) CCC 345(H.P.)
wherein the court had found documents to be not relevant
and despite knowledge were being submitted belatedly and
application was lacking bonafides. Mr. Mande further refers
to and relies on the case of Hatimabhai Khurshid Hussein Bohari
V/s Chandanmal Ragunath Sakhale reported in 2004(2) ALL MR 898.
Said case has been decided on a different factual scenario
and context had been entirely different. It was in the
context of that case observations have been made as
appearing in reported decision. No analogy from aforesaid
two judgments viz. Nirmal Singh V/s Manoherlal reported in
2016(3) CCC 345(H.P.) and Hatimbhai Khurshid Hussein Bohari V/s.
ChandanmaI Raghunath Sakhale reported in 2004(2) ALL MR 898
can be drawn as would be applicable to scenario in present matter.
These judgments appear to have been cited before trial
court and have been referred to by learned judge in the
impugned order. The trial court relied on Chitrakala Fal
Dessai's case (supra) whereunder it appears that production
of documents had been allowed in second appeal observing
that the stigma that documents in question could be
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manufactured, does not include public documents and
considered that it covers present matter, as such, trial court
has allowed the application exhibit-87.
12. After hearing learned counsel for the parties and on
perusal of impugned order, it cannot be said that trial court
has committed any error in granting application exhibit 87,
having regard to the overall legal position emerging from
the citation, particularly the one in case of Chitrakala Fal
Dessai V/s. Balu Marathe, reported in 2006(5) ALL MR 438.
13. In the circumstances, it is difficult to accede to the
request made in present writ petition to set aside impugned
order.
14. The Inconvenience being caused to the petitioners in
the process can be made good by imposing costs. The
matter can be considered for costs since there has been a
little laxity on the part of plaintiff in preferring application
for production of documents.
15. Having regard to the nature of dispute, it is
appropriate that costs of Rs. 5000/- be imposed on the
respondent - plaintiff.
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16. As such, writ petition stands dismissed. However,
costs of Rs. 5000/- (Rs. Five thousand only) be paid to
petitioners by the respondent - plaintiff. Costs be
deposited by respondent no. 1 - plaintiff in trial court within
a period of four weeks from the date of receipt of writ of
this order.
17. Rule stands discharged.
[SUNIL P. DESHMUKH, J.]
vdk
