Pushpabai Kanhiyalal Ahirrao ... vs Shankarlal Khushalchand Jain ...
2017 Latest Caselaw 552 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                      WRIT PETITION NO.1791 OF 2016


 1)       Sow. Pushpabai w/o Kanhiyalal Ahirrao
          Since deceased, through L.Rs

 1-a)     Kanhayalal S/o Khandu Ahirrao,
          Age: 70 years, occu: nil
          R/o Kareem Nagar, Kannad,
          Dist. Aurangabad

 1-b)     Nilesh S/o Kanhayalal Ahirrao,
          Age : Major, occu: Agriculture,
          R/o Deogaon Rangari, Tq. Kannad,
          Dist. Aurangabad

 1-c)     Sayush S/o Kanhaylal Ahirrao,
          Age: major, occu: Agriculture,
          R/o Chajed Nagar, Taluka Kannad
          Dist. Aurangabad

 1-d)     Jayashree Ashok Ghodke,
          Age: major, occu: household
          R/o Shivaji Nagar,
          Aurangabad

 1-e)     Varshali Nandkumar Vispute,
          Age: Major, occu: Household,
          R/o Anand Park, Bharadi Road,
          Sillod, Tq. Sillod,
          District: Aurangabad                                  Petitioners


          Versus


 1)       Shankarlal S/o Khushalchand Jain,
          Since deceased through L.Rs.


 1-a)     Smt. Jaishree w/o Shankarlal Jain,
          age: 50 years, occu: household
          R/o Opposite to Pandurang Teli's House,
          Baarpeth, Kannad,
          Dist. Aurangabad




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                                                                wp 1791.16.odt

 1-b)     Mahavir S/o Shankarlal Jain,
          Age: 15 years, occu: Minor,
          u/g of Smt. Jaishree Shankarlal Jain,
          His Real Mother i.e. respondent No.1-a

2) Shama Bano w/o Anwar, Age: 20 years, occu: household R/o Samarth Nagar, Kannad, District. Aurangabad Respondents

Mr. Ajeet D. Kasliwal advocate for the petitioner Mr. P.F. Patni advocate for Respondent No.2 _______________

CORAM : S.B. SHUKRE, J (Date : 7TH March, 2017.)

ORAL JUDGMENT

1 Heard Mr. A.D. Kasliwal advocate for the petitioners and Mr.

P.F. Patni advocate for respondent No.2.

2 None appeared for legal heirs of respondent No.1. In any

case, the legal heirs are not contesting parties.

3 Rule. Rule made returnable forth with and heard finally by

consent of the learned counsel for the parties.

4 Challenge in this petition is to the order dated 2.2.2016

allowing the Application of respondent No.2 to make inadmissible

in evidence, agreement to sell and also de-exhibiting that

document.

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5 On going through the remand order dated 24.8.2015 passed

by the learned District Judge, Aurangabad, I find that, some

liberty has been given to the parties to adopt respective evidence

and therefore, while allowing the Application, it was necessary for

the learned Civil Judge to consider the scope of the remand order.

On perusal of the impugned order, it appears that, same has not

been done by the learned Civil Judge.

6 Secondly, there is also a bar under section 35 of the

Maharashtra Stamps Act against making a document admitted in

evidence, as inadmissible in evidence, except in those cases to

which the provisions of Section 58 of the Stamps Act are

applicable. Admittedly, provisions of section 58 of the Stamps Act

to the facts of the present case, are not applicable. While

observing that, the document in question is inadmissible in

evidence, it appears that, the learned Civil Judge has not taken

into consideration the impact of section 35 on the prayer made in

the application vide Exh.111. As the aforesaid material aspects

have not been considered by the Trial Court, I am of the opinion

that, the impugned order needs to be quashed and set aside and

matter deserves to be remanded back to the Trial Court for

consideration afresh.

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7 Accordingly, writ petition is allowed.

8 The impugned order is quashed and set aside and the

matter is remanded back to the trial Court for consideration of

Application Exh.111 in accordance with law, after giving

opportunity of hearing to both the sides. All the points are kept

open. Learned Trial Court shall decide the application as early as

possible and preferably within six months from the date of

appearance of the parties before it.

9 Rule is made absolute in above terms.

( S.B. SHUKRE , J)

vbd