Bombay High Court
Dhirajlal Babulal Ruparelia vs Dilip Chitaranjan Daga And Others on 3 May, 2017
Bench: Z.A. Haq
Judgment 1 wp481.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 481 OF 2016
Dhirajlal Babulal Ruparelia,
Age : Major, Occ.: Agriculturist,
R/o. Chikhli, Tq. Chikhli,
District : Buldana.
.... PETITIONER.
// VERSUS //
1. Dilip Chitaranjan Daga,
Aged 48 years, Occ.: Business
2. Pradeep Chitaranjan Daga,
Since deceased by L.Rs.:
A. Smt. Urmila d/o. Pradeep Daga,
Age 47 years, Occ.: Household,
B. Bhushan Pradeep Daga,
Age 30 years, Occ.: Business,
C. Mrs. Namrata Vasant Rathi,
Age 28 years, Occ.: Household,
R/o. Behind Kela High School,
Khamgaon, Taq. Khamgaon,
Dist. Buldhana.
3. Smt. Maltibai Chitaranjan Daga,
Age 72 years, Occ.: Household,
1, 2(A), 2(B) & 3 R/o. Chikhli,
Tq. Chikhli, District - Buldana,
.... RESPONDENTS
.
___________________________________________________________________
Shri P. S.Wathore, Advocate for Petitioner.
Shri N.B.Kalwaghe, Advocate for Respondent Nos.1 & 2(B)
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : MAY 03, 2017.
Judgment 2 wp481.16.odt
ORAL JUDGMENT :
1. Heard.
2. RULE. Rule made returnable forthwith.
3. The plaintiff has challenged the order passed by the trial Court
by which application (Exh.No.148) filed by him under Order VI Rule 17 of
the Code of Civil Procedure seeking permission to amend the plaint is
rejected.
4. Regular Civil Suit No.125 of 2001 was decided by the judgment
dated 25th October, 2007. The judgment and decree passed by the trial
Court was challenged before the District Court in Regular Civil Appeal No. 33
of 2009. By the judgment delivered on 7th August, 2015 the learned
Principal District Judge has allowed the appeal and remitted the matter to
the trial Court with direction to grant opportunity to the plaintiff to cross-
examine D.W. No.1 and D.W. No.2. After remand, the plaintiff filed
application (Exh.No.148) which is dismissed by the impugned order.
5. The learned trial Judge has dismissed the application observing
that the appellate Court has not remanded the civil suit for fresh hearing but
the remand is for limited purpose and only to grant an opportunity to the
plaintiff to cross-examine D.W. No.1 and D.W. No.2.
Judgment 3 wp481.16.odt
6. After hearing the learned advocates for the respective parties, I
find that the trial Court has failed to exercise jurisdiction vested in it and has
wrongly dismissed the application under misconception that it cannot
consider the application under Order VI Rule 17 of the Code of Civil
Procedure. Though the District Court has recorded that the trial Court shall
give an opportunity to the plaintiff to cross-examine D.W. No.1 and D.W.
No.2, the effect of remand is that the suit is at the stage of cross-examination
of D.W. No.1 and it is well settled that an application under Order VI Rule 17
of the Code of Civil Procedure can be made at any stage of the proceedings.
The only thing which should have been considered by the trial Court while
deciding the application (Exh.No.148) is that the plaintiff satisfies that the
proposed amendments can be permitted according to law. Therefore, in my
view, the impugned order is required to be set aside.
7. The plaintiff has also challenged the order passed by the trial
Court by which the application (Exh.No.153) filed by him for producing
additional documents is dismissed. This application is also dismissed under
the misconception that remand of the proceedings by the appellate Court is
for limited and specific purpose. For the same reasons, as recorded above,
the order passed on the application (Exh.No.153) is also unsustainable.
8. Hence, the following order :
Judgment 4 wp481.16.odt
i) The order passed on the application (Exh.No.148) is set aside.
The application (Exh.No.148) filed by the plaintiff is restored.
ii) The trial Court shall decide the application (Exh.No.148)
afresh, according to law keeping in view the parameters of
Order VI Rule 17 of the Code of Civil Procedure.
iii) The order passed on application (Exh.No.153) is set aside. The
application (Exh.No.153) is restored.
iv) The trial Court shall decide the application (Exh.No.153) after
deciding the application (Exh.No.148).
Rule made absolute in the above terms. In the circumstances,
the parties to bear their own costs.
JUDGE
RRaut..
