Bombay High Court
Haridas @ Haribhau Baliram ... vs Sau. Kajal W/O Hitesh Shah Thr. ... on 27 June, 2017
Bench: P.N. Deshmukh
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1203 OF 2017.
PETITIONER: Haridas @ Haribhau Baliram Gondchawar,
aged about 68 years, Occu: Business, R/o
Ramdaspeth, Akola, Tq. and Distt.Akola.
: VERSUS :
RESPONDENTS: 1. Sau.Kajal w/o Hitesh Shah,
aged about 35 years, Occu: Housewife,
through Power of Attorney Holder Shri
Hitesh Ishwarlal Shah, aged about 39 yrs.
Occu: Business.
2. Sau.Sangita w/o Bhadreshkumar Doshi,
aged about 46 years, Occu: Housewife,
thr.Power of Attorney Holder Shri
Pradeepkumar Shantilal Ramani, aged
about 50 years, Occu: Business.
Both R/o Kamal Housing Society, in front of
Govt. Medical Hospital, Akola, Tq. and
Distt.Akola.
WRIT PETITION NO.1053 OF 2017.
PETITIONER: Haridas @ Haribhau Baliram Gondchawar,
aged about 64 years, Occu: Business, R/o
Ramdaspeth, Akola, Tq. and Distt.Akola.
: VERSUS :
RESPONDENTS: 1. Sau.Kajal w/o Hitesh Shah,
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aged about 36 years, Occu: Housewife,
through Power of Attorney Holder Shri
Hitesh Ishwarlal Shah, aged about 40 yrs.
Occu: Business.
2. Sau.Sangita w/o Bhadreshkumar Doshi,
aged about 47 years, Occu: Housewife,
thr.Power of Attorney Holder Shri
Pradeepkumar Shantilal Ramani, aged
about 51 years, Occu: Business.
Both R/o Kamal Housing Society, in front of
Govt. Medical Hospital, Akola, Tq. and
Distt.Akola.
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Mr.S.S.Sarda, Adv. for the petitioner.
Mr.J.R.Khapre, Advocate for the respondents.
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CORAM: P.N.DESHMUKH, J.
DATED: 27th JUNE, 2017.
ORAL JUDGMENT:
1. Rule. Rule is made returnable forthwith. Heard finally by
consent of learned counsel of both the parties.
2. Both these writ petitions are decided by this common order
as they are arising out of impugned orders passed in Special Civil Suit
No.107 of 2013 and are between same parties. In Writ Petition
No.1053 of 2017 challenge is to impugned order dated 26 th October,
2016, while in Writ Petition No.1203 of 2017 challenge is to impugned
order dated 3rd February, 2017, both passed in Special Civil Suit No.107
of 2013. By the impugned order dated 26 th October, 2016, request
made by petitioner/defendant for examination of witness came to be
rejected, while by subsequent order dated 3 rd February, 2017
application filed by petitioner for production of documents and for
exhibiting the same is rejected.
3. To understand the controversy involved in these petitions,
brief facts as stated are necessary to be considered. A suit for Specific
Performance of Contract was filed by respondents alleging that
petitioner agreed to sell house property along with land situated at
Nazul Plot No.9 at the rate of Rs.3500/- per sq. ft. for total
consideration of Rs.1,17,60,000/- out of which respondents had already
paid Rs.30,00,000/- and remaining amount was agreed to be paid at
the time of execution of sale-deed on 25th June, 2013. It is further
alleged that on 20th June, 2013 it was informed by the petitioner that
since he could not collect necessary required documents for the purpose
of execution of sale-deed, it was decided to execute the documents on
20th August, 2013, as the land in question was B-tenure land. With
these facts, respondents prayed for decree of Specific Performance of
Contract and for consequential reliefs.
4. Petitioner in his written statement specifically stated that,
the fact that property was B-tenure property was well within the
knowledge of the respondents and had come out with the case that it is
respondents who were not ready and willing to perform their part of
contract and has also filed a counter claim seeking damages from the
respondents.
5. On completion of pleadings, on 22nd July, 2014, learned trial
Court framed issues. Respondents led evidence of their two witnesses
without filing any list of witnesses and closed their side. Petitioner led
his evidence on 11th December, 2015 and was cross-examined. On 18 th
October, 2016 application was filed below Exh.107 by petitioner to
examine Sub-Registrar, Akola to prove the fact that for registration of
suit property no prior permission is necessary. On 25 th October, 2016
respondents filed their reply to application, Exh.107 opposing the same.
Said application came to be rejected by the impugned order on 26 th
October, 2016 mainly on the ground that no list of witnesses was
provided by petitioner and that Sub-Registrar is not necessary party. It
is material to note that permission if is given to petitioner to examine
witness as prayed for, at the most what would happen is that,
controversy in question can be put to an logical end, instead of adopting
such hyper technical approach by rejecting the request of petitioner on
the ground that the issue raised is not required to be considered by
leading any evidence but can duly be considered on argument since
same is based on question of law and not facts. On the contrary, in
view of specific case of petitioner as aforesaid, if permission to examine
Sub-Registrar concerned is granted, no prejudice can said to be caused
to the respondent and fact of permission if required or otherwise as put
forth as aforesaid, can very well be considered by the trial Court relying
upon such evidence, if any, to that effect is brought on record.
6. Issue involved in Writ Petition No.1203 of 2017 is rejection
of application, Exh.111 on record filed by petitioner along with list of
documents below Exh.112 and application for exhibiting the documents
vide Exh.113. It is the case of petitioner that in Exh.111 it is specifically
stated that the permission to produce such documents on record was
necessary in view of the fact that petitioner was required to prove that
though the suit property is B-tenure property, same can be transferred
without obtaining prior permission from any authority. Learned
counsel for the petitioner submitted that this aspect is also one of the
major defence of petitioner to prove that it is the respondents who, in
fact, are not ready and willing to perform their part of contract. It is
noted that documents filed below list of document, Exh.112 include
Government Resolution and certified copies of sale-deed and alleging
that documents being public documents, petitioner prayed for
exhibiting the same. However, said applications came to be rejected.
Admittedly, it is noted that petitioner's evidence was not closed while
the impugned order came to be passed. Admittedly, the trial Court had
not passed any such order of closing evidence of petitioner. In fact, it is
noted that after rejecting earlier application, Exh.107 filed by petitioner
disallowing to issue witness summons, the learned trial Court did not
found documents placed on record below Exh.112 to be relevant and as
such, appears to have considered its genuineness and effect, even
before, allowing the same to be placed on record and proved if found
necessary. In view of the fact that petitioner's evidence is not complete,
merely because any application filed by petitioner for issuing witness
summons is rejected, this by itself can be no reason to reject further
prayer of petitioner to bring on record documents, as has happened in
the instant petition, more particularly, since impugned order below
Exh.107 is held to be set aside.
7. Having considered facts as aforesaid, both the petition are
liable to be allowed. In the circumstances, impugned order dated 26 th
October, 2016 passed in W.P.No.1053 of 2017 and order dated 3 rd
February 2017 passed in W.P.No.1203 of 2017 stand quashed and set
aside.
Learned Trial Court, who is seized with Special Civil Suit
No.107 of 2013, which is stated to fixed for argument on 29 th June,
2017, shall allow recording of evidence of Sub-Registrar, Akola on
petitioner's taking necessary steps.
Similarly, learned Trial Court shall allow documents as per
list Annexure - VI of petition, to be produced on record. However, said
documents shall be exhibited only on adopting recourse available under
law and shall be duly considered, if proved.
Needless to say that process of recording of evidence of this
witness should be completed expeditiously, and in any event within a
period of three weeks from the date of issuance of summons. Both
petition stands disposed of as allowed in above terms with no order as
to costs.
JUDGE
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