Bombay High Court
Baburao Eknathrao Kamble(Kalal) vs Premkumar Shivling Tandale And ... on 4 September, 2017
Bench: R.M. Borde
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wp 7089.13.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7089 OF 2013
Baburao s/o Eknathrao Kamble (Kalal)
Age: 56 years, occu: service,
R/o Talwes to Nanded Bidar Road,
Udgir, Tq. Udgir, Dist. Latur Petitioner
Versus
1 Premkumar s/o Shivling Tandale
Age: 56 years, occu: business,
R/o Khanaga Galli, Udgir,
Tq. Udgir, Dist. Latur
2 Satish S/o Premkumar Tandale
Age: 41 years, occu: business
R/o Khanaga Galli, Udgir,
Tq. Udgir, Dist. Latur
3 Sandeep S/o Premkumar Tandale
Age: 38 years, occu: business,
R/o Khanaga Galli, Udgir
Tq. Udgir, Dist. Latur
4 Sudhir s/o Premkumar Tandale
Age: 36 years, occu: business,
R/o Khanaga Galli, Udgir
Tq. Udgir, Dist. Latur
5 Suhas s/o Premkumar Tandale
Age: 34 years, occu: business,
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wp 7089.13.odt
R/o Khanaga Galli, Udgir
Tq. Udgir, Dist. Latur Respondents
Mr. V.G. Solshe advocate for the petitioner
Mr. V.D. Salunke advocate for respondents
_______________
CORAM : R. M. BORDE, J
(Date: September 4th, 2017)
ORAL JUDGMENT
1 Heard.
2 Rule. With the consent of the parties, the petition is taken-
up for final disposal at admission stage.
3 The petitioner is objecting to the order passed by the Civil
Judge, Junior Division, Latur on 15.7.2013 below Exh.90 in RCS
No.239/2007.
4 The petitioner is the original plaintiff in the Suit. He claims
a decree of perpetual injunction, restraining the defendants from
obstructing and interfering in the possession over the suit
property, as well as claims a decree of possession in respect of
certain portion.
5 The respondents/defendants filed their written statement.
The petitioner, after framing of the issues, tendered his evidence
in the form of affidavit. Defendants conducted cross-examination
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of the plaintiff. During the conduct of the cross-examination,
certain aspects were disclosed, which, according to the plaintiff
needed to be explained. The petitioner - original plaintiff, as
such, tendered an application, seeking permission to tender an
affidavit in the form of re-examination. The affidavit bearing
Exhibit No.92 was presented by the petitioner - plaintiff.
However, the Trial Court proceeded to reject the application by
order passed dated 15.7.2013 and was pleased to return the
affidavit tendered by the petitioner.
6 It is the contention of the petitioner that, the re-
examination is restricted to the explanation of matters referred
to in cross-examination and as such, it ought to have been
permitted in view of section 138 of the Indian Evidence Act,
1972.
7 I have perused the affidavit in the nature of re-examination
tendered by the petitioner, as well as the statement of the
plaintiff recorded during the cross-examination conducted by the
defendant. It does appear that the plaintiff is trying to explain
certain aspects disclosed during his cross-examination, which is
permissible in view of section 138 of the Indian Evidence Act. The
Trial Court has committed a jurisdictional error in rejecting the
Application tendered by the petitioner.
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8 For the reasons, as aforesaid, the writ petition deserves to
be allowed and the same is accordingly allowed.
9 The order passed below Exhibit 90 in RCS No.239/07 is
quashed and set aside. The petitioner shall be permitted to
tender on record the Affidavit in the form of Re-examination
which was tendered by him and was exhibited as Exhibit 92. It
would be open for the defendants to apply for cross-examination,
on the basis of the Affidavit in the form of Re-examination that
would be tendered by the petitioner.
10 Rule is accordingly made absolute.
11 There shall be no order as to costs.
12 The Trial Court is directed to decide the pending Suit
expeditiously.
(R. M. BORDE, J)
vbd
