Bombay High Court
Ashok Bacchumal Gangwani vs Kishor Gokuldas Adtiya And Others on 31 October, 2017
Bench: Z.A. Haq
Judgment 1 wp7016.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 7016 OF 2017
Ashok Bcchumal Gangwani,
Aged about 53 years, Occupation:
Business, R/o. Old Devi Ward,
Pusad, Tq. Pusad, Distt. Yavatmal.
.... PETITIONER.
// VERSUS //
1. Kishor Gokuldas Adtiya,
Age : 50 years, Occu.: Business,
2. Sanjay Gokuldas Adtiya,
Age : 45 years, Occu.: Business,
3. Kirit Gokuldas Adtiya,
Age : 43 years, Occ.: Business,
All R/o. Devi Ward, Pusad,
Tq. Pusad, Distt. Yavatmal.
.... RESPONDENTS
.
___________________________________________________________________
Shri Anjan De, Advocate for Petitioner.
Shri K.S.Narwade, Advocate for Respondent No.1.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : OCTOBER 31, 2017.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
2. RULE. Rule made returnable forthwith.
Judgment 2 wp7016.17.odt
3. The petitioner/ tenant has suffered decree for eviction and
possession. The appeal filed by the petitioner challenging the above
judgment and decree is pending before the District Court. During pendency
of the appeal, the petitioner had filed an application seeking permission to
amend the written statement and memo of appeal which came to be allowed
by the District Court. The respondents/ landlords had filed application
(Exh.41) seeking permission to effect consequential amendment in the plaint
which is allowed by the order passed on 16 th August, 2017. This order is
challenged in the present writ petition, however, advocate for the petitioner,
on instructions, stated that the challenge to the order passed on the
application (Exh.41) is given up.
4. The petitioner had filed application (Exh.44) praying that the
landlord (plaintiffs) be directed to enter the witness box before the
defendant is called upon to lead evidence. This application is rejected by the
order dated 4th October, 2017. This order is also challenged in the present
petition.
5. After hearing the learned advocates for the respective parties for
some time, I find that though the learned District Judge has permitted the
parties to amend the pleadings (written statement and plaint) and has fixed
the matter for recording additional evidence, the point/ points to which the
evidence is to be confined have not been specified as required by Rule 29 of
Order 41 of the Code of Civil Procedure.
Judgment 3 wp7016.17.odt
6. In my view, this exercise should have been undertaken before
considering the application (Exh.44) as the parties would know what burden
they are required to discharge once the point/ points to which evidence will
have to be specified, is / are specified.
7. In view of the above, the following order is passed:
i. The order passed by the learned District Judge on the
application (Exh.44) is restored.
ii. The learned District Judge shall comply with the
requirements of Rule 29 of Order 41 of the Code of Civil
Procedure and specify the point/ points to which the evidence
would be confined.
iii. After the point/ points is/are specified, the application
(Exh.44) be considered.
iv. The learned advocate for the respondents/ plaintiffs has
made a grievance that the petitioner/ defendant is protracting
the matter and the plaintiffs are deprived of the possession of
the suit premises since last more than 25 years. Considering
these facts, the learned District Judge is directed to dispose the
appeal till 15th January, 2018.
The writ petition is disposed in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
RRaut..
