Balvanta Bhimashankar Dehadray vs The State Of Maharashtra And ...
2018 Latest Caselaw 502 Bom

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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                      WRIT PETITION NO. 12272 OF 2016

          Balvanta Bhimashankar Dehadray,
          Age: 72 years, Occ: Medical Practitioner,
          R/o: Puntamba, Taluka: Rahata &
          Gurudatta Colony, Ward No. 6,
          Near Kamgar Hospital, Shrirampur,
          Taluka: Shrirampur, Dist: Ahmednagar.                  ...Petitioner.

                           Versus

 1.       The State of Maharashtra.

 2.       District Inspector,
          Land Record Office Ahmednagar,
          Tq. & District: Ahmednagar.

 3.       Sub-Divisional Inspector,
          Land Record Office, Rahata,
          Dist: Ahmednagar.

 4.       Village Panchayat, Puntamba,
          Taluka: Rahata, Dist: Ahmednagar.

 5.       Ashok Dattatraya Kulkarni,
          Age: 55 years, Occ: Service,
          R/o: Puntamba, Taluka: Rahata,
          Dist: Ahmednagar.                                    ...Respondents.


          Advocate for Petitioner : Shri S.S. Kulkarni. 
          AGP for Respondent Nos. 1 to 3 : Shri V.S. Badakh. 
          Advocate for Respondent No. 5 : Shri S.B. Kadu. 


                                             CORAM : RAVINDRA V. GHUGE, J.

Dated : 16th January, 2018

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by

the consent of the parties. The petitioner is aggrieved by the orders

dated 14/04/2016 and 14/11/2016, passed by the Trial Court, by

which, application Exhibit 134 and 136 respectively, filed by the

petitioner/plaintiff seeking leave to place on record the translated

copy of a document, have been rejected.

2. The petitioner/plaintiff has placed reliance upon a document

which is in Modi script in R.C.S. No. 245/2011, filed for the

purposes of seeking injunction, removal of encroachment and for

possession. According to the plaintiff, the Modi script emerging

from the concerned document renders a meaning, by which, the

plaintiff gets a title to the suit property. A translator has translated

the said document, copy of which is placed on record. The

document is dated 17/06/1905. The said translator was examined

before the Trial Court and he has proved the document in Modi

script.

3. Grievance is that, though the translation of the original

document was prepared, the plaintiff did not file it and as such,

desires to place it on record so that all the litigating sides, including

the Court itself, would understand the meaning of the said

document which would have a direct impact on the claims put forth

by the petitioner.

4. Realizing the error committed, the plaintiff preferred

application Exhibit 135, praying for leave to produce the translated

copy of the original document and re-examining the said translator

for the purposes of proving the translation. The Trial Court has

rejected the application for the reason that the plaintiff's evidence

was earlier closed on 18/01/2016, and though subsequently, he was

again given an opportunity on 19/01/2016, yet the plaintiff has

faltered. The plaintiff's evidence was closed on 09/02/2016, and

the evidence of defendants Nos. 1 to 4, was closed on 01/03/2016.

Even thereafter, by imposing costs of Rs. 1,000/-, the third witness

of the plaintiff, which is the translator, was examined.

5. It emerges from the record that the third witness of the

plaintiff was the translator. He has highlighted the contents of the

document in Modi script. However, a verbatim translation is not on

record.

6. The learned AGP, and the learned counsel for respondent No.

5 have strenuously opposed this petition. However, they have no

answer to offer with regard to, what would be the position, if the

Trial Court desires to go through every sentence in document which

is in Modi script. Learned counsel for respondent No. 5, submits

that it was the duty of the plaintiff to ensure that the translation was

placed on record and failure on his part therefore, would lead to the

dismissal of the suit.

7. It is quite obvious that if the translation of the said document

is not before the Court, it would be difficult even for the Court to

consider its contents which according to the plaintiff is decisive and

crucial for making a declaration, as to who would be the owner of

the suit property. In all probability, the present situation is likely to

cause a rejection of the suit. The endeavor of the Court should be to

ensure that justice is done and in the face of a peculiar situation as it

emerges in this proceedings, the translation, if placed on record,

would assist the litigating sides and more importantly the Court

itself for properly adjudicating on the disputes set out in the suit.

8. Considering the above, this petition is allowed. The

impugned orders dated 14/04/2016 and 14/11/2016, are quashed

and set aside and application Exhibit 134 and 136 are allowed

subject to the petitioner depositing costs of Rs. 5,000/-. Learned

advocate for the respondents submit that said amount can be

donated to Advocates' Bar Association of Bombay High Court, Bench

at Aurangabad. The said costs shall, therefore, be deposited with

the Advocates' Bar Association of Bombay High Court, Bench at

Aurangabad, on/or before 02/02/2018, and the receipt evidencing

the said payment shall be produced before the Trial Court on/or

before 09/02/2018.

9. Consequentially, the Trial Court shall take the translated copy

of the Modi script document on record and subject to the recording

of evidence, would grant an Exhibit number to the said document in

accordance with the Indian Evidence Act.

10. Since, the plaintiff is being granted the liberty to examine the

witness, the defendants will also have the opportunity for further

cross-examination, keeping in view the peculiar facts of this case and

without laying down any precedent.

11. Rule is made absolute in the above terms.

( RAVINDRA V. GHUGE, J. ) S.P.C.