Bombay High Court
Smt. Sangita Wd/O Ganeshgir ... vs Lalita Govindgir Gosavi And 2 ... on 22 January, 2018
Bench: Z.A. Haq
Judgment 1 wp4158.2015.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4158/2015
PETITIONER : Smt. Sangita Wd/o Ganeshgir Gosavi,
Aged about 52 years, Occ. Housewife,
R/o Labour Colony, Tar File, Block
No. 9, House No. 7, Akola,
Tah. And District- Akola
...V E R S U S...
RESPONDENTS : 1] Lalita Govindgir Giri,
C/o Govindgir Narayangir Giri,
R/o Near Hanuman Mandir,
Bhatgani, At and Post Bhatgani,
Tq. Malkapur, Dist. Buldhana
(Amendment carried out as per
order dated 19/08/2016)
2] Smt. Chanda Kishor Bharti,
Aged about 49 years, Occ.
Household Work, R/o Fadke
Nagar, Wankhede Nagar, In
Front of Akshay Building Old
City, Akola, Tah. And District
Akola
3] Gajanan S/o Dattatraua Pathak,
Aged about 44 years,
Occ. Business,
R/o Godbole Plots, Dabki,
Road, Akola, Tah. And District.
Akola
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Judgment 2 wp4158.2015.odt
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Shri O.Y. Kashid, Advocate for the petitioner
Shri S.A. Mohta, Advocate for the respondent no. 2
Shri A.S. Thotange, Advocate h/f Shri U.J. Deshpande, Advocate
for the respondent no. 3
===================================
CORAM:- Z.A. HAQ,J.
DATED :- 22 nd JANUARY, 2018
ORAL JUDGMENT :-
Heard.
Rule. Rule made returnable forthwith.
2] The petitioner (original plaintiff) has filed the civil suit
praying for decree for permanent injunction restraining the
defendants from disposing the suit property. The plaintiff has also
prayed for decree for declaration that the alleged Will-deed dated
20/08/2009 (26/08/2009) is null and void. The civil suit
progressed. The plaintiff had given notice to the defendants to
produce the documents, vide Exh. 73. To this notice, the
defendant nos. 1 and 2 submitted that the execution of the Will-
deed dated 20/08/2009 (26/08/2009) is not disputed, and
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Judgment 3 wp4158.2015.odt
therefore the true copy of it can be considered while deciding the
civil suit. The defendant nos. 1 and 2 further stated in their reply
that the original sale-deed dated 30/07/2012 is not in custody of
the defendant nos. 1 and 2 and if the plaintiff wants she can
obtain the certified copy of it and prove her case. After receiving
the above reply, the plaintiff filed the application (Exh. 74)
seeking permission to lead secondary evidence. The learned
advocate for the petitioner-plaintiff has submitted that the plaintiff
wants to lead secondary evidence with regard to the Will-deed
dated 20/08/2009 (26/08/2009) and the sale-deed dated
30/07/2012. This application is dismissed by the learned trial
Judge observing that neither the plaintiff nor her advocate were
present when the matter was called out and the plaintiff failed to
comply with the earlier order passed by the Court, and therefore
the case proceeded further and the matter was kept for cross-
examination of the plaintiff. As far as non-compliance of the
earlier order is concerned, the learned advocate for the petitioner-
plaintiff has submitted that the order was in respect of supplying
the copy of the application (Exh. 74) to the defendants, which
compliance is made by the plaintiff.
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Judgment 4 wp4158.2015.odt
3] Be that as it may, in view of the proposition laid down
by this Court in the judgment at the Principal Seat in the case of
Karthik Gangadhar Bhat vs. Nirmala Namdeo Wagh & anr. in Writ
Petition No. 11151/2017 on 03/11/2017, the application (Exh.
74) as filed by the plaintiff was not required. In view of the
interim order granted by this Court on 27/07/2015, the civil suit
has not progressed further and is at the stage of cross-examination
of the plaintiff.
4] In view of the above facts, the following order would
sub-serve the ends of justice:-
O R D E R
1] The impugned order is set aside.
2] The learned trial Judge shall deal with the
issue in the light of proposition laid down in the case of
Karthik Gangadhar Bhat.
Judgment 5 wp4158.2015.odt
3] It goes without saying that the say given by
the defendant nos. 1 and 2 on the application (Exh. 73)
shall be considered by the learned trial Judge while
considering the prayer made on behalf of the plaintiff to
lead secondary evidence.
Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
Ansari
