Bombay High Court
Arvind Manikchand Bhavsar vs Fulchand Onkar Agrawal, L.Rs. ... on 9 June, 2017
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.284 OF 2014
Arvind Manikchand Bhavsar,
Age-69 years, Occu-Business,
R/o Ram Mandir Ward,
Bhusawal, Tq.Bhusawal,
Dist. Jalgaon -- PETITIONER
VERSUS
Fulchand Onkar Agrawal
since deceased, through his LR's
1. Ravindra Fulchand Agrawal,
Age-53 years, Occu-Business,
R/o Ramji Oil Depot, New Area Ward,
Opp.Brahman Sangh, Bhusawal,
Tq. Bhusawal, Dist.Jalgaon,
2. Prakash Fulchand Agrawal,
Age-51 years, Occu-Business,
R/o as above,
3. Kamla Omprakash Gindodiya,
Age-47 years, Occu-Household,
R/o Dhule-Agra Road,
Near Pach Kandil, Dhule,
Dist.Dhule,
4. Chhaya Bhagirath Morarka,
Age-41 years, Occu-Household,
R/o Itwari, Opp.Haldiram Bhujiyawale,
Nagpur,
5. Kesarbai Fulchand Agrawal,
Age-71 years, Occu-Household,
R/o Ramji Oil Depot, New Area Ward,
Opp. Brahman Sangh, Bhusawal,
Tq.Bhusawal, Dist.Jalgaon -- RESPONDENTS
khs/JUNE 2017/284
Mr.C.K.Shinde, Advocate for the petitioner.
Mr.S.S.Gangakhedkar, Advocate for respondent Nos.1 to 5.
( CORAM : Ravindra V.Ghuge, J.)
DATE : 09/06/2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The petitioner / original plaintiff is aggrieved by the order dated
05/10/2013 by which his application below Exh.73 seeking leave to
file an additional affidavit before the verification on the affidavit in
lieu of examination in chief was completed, has been rejected.
3. I have considered the submissions of the learned Advocates for
the respective sides and have gone through the record available with
their assistance.
4. The petitioner has preferred RCS No.92/2005 seeking recovery
of possession with regard to the suit shop premises. Issues were cast
on 05/03/2011. An affidavit in lieu of examination in chief dated
05/04/2013 was filed by the petitioner and before the
commencement of the cross examination, an application Exhibit 73
khs/JUNE 2017/284
dated 25/06/2013 was filed praying for leave to submit an additional
affidavit to the affidavit already filed by way of examination in chief.
By the impugned order, the Trial Court has rejected the said
application on the ground that order 7 Rule 14 of the CPC mandates
that the plaintiff should file all the documents in his possession
alongwith the plaint. Since Partition Deed is not mentioned in the
list of documents, permission to file an additional affidavit cannot be
granted.
5. The respondent vehemently submits that unless there are
pleadings and documents on record, a party cannot lead evidence on
such aspects which have not been pleaded. He submits that a
detailed say at Exh.74 was also filed by the respondent opposing
application Exh.73 and the Trial Court has rightly rejected the said
application.
6. It appears from paragraph No.3 of the plaint that the
petitioner/plaintiff has specifically pleaded about the partition that
has occurred in relation to the suit property. If a document
pertaining to the said document is not on record, the Trial Court can
consider the said aspect since the matter then rests on an oral
statement without corroborating evidence. However, if the pleading
khs/JUNE 2017/284
to the extent of the partition is mentioned in the plaint, the petitioner
would acquire the right to lead oral evidence on the principal of "first
plead then prove".
7. Besides the above, the Trial Court has lost sight of Order 7
Rule 14(3) of the CPC by which the plaintiff can produce documents
with the leave of the Court before the commencement of the
recording of evidence or the hearing of the suit.
8. Nevertheless, application Exh.73 was not with regard to
production of documents. It was an application filed for seeking
permission to tender an additional affidavit in lieu of examination in
chief, in addition to the affidavit filed earlier. There is no express bar
or exclusion of a right of a plaintiff or any witness to step into the
witness box and depose in examination in chief in addition to the
affidavit in lieu of such examination having been filed. So also, until
the cross examination had commenced, the recording of oral evidence
of the said witness cannot be said to be completed. In order to
ensure that the ends of justice are met and a witness is not
precluded from leading oral evidence, the Trial Court could have
allowed the said application. The defendants were always at liberty to
cross-examine the plaintiff after the examination-in-chief was
khs/JUNE 2017/284
completed.
9. In the light of the above, this petition is allowed. The impugned
order dated 15/10/2013 is quashed and set aside. Application Exh.73
is allowed so as to enable the petitioner/plaintiff to file an additional
affidavit in addition to the affidavit in lieu of examination in chief, on
record. After the verification is done, the defendants can proceed to
cross-examine the plaintiff. Needless to state, the petitioner shall
tender the additional affidavit within 2(two) weeks from today and
shall not seek extension of time.
10. Rule made absolute in the above terms.
( Ravindra V.Ghuge, J.)
khs/JUNE 2017/284
