Bombay High Court
Hanumant Gangaram Khamkar (Since ... vs Shri. Satish Parbati Gaikwad And ... on 24 January, 2018
Bench: Dr. Shalini Phansalkar-Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4486 OF 2017
Hanumant Gangaram Khamkar, ]
Since deceased through his heirs ]
& legal representatives, ]
1A Smt. Yamuna Yashwant Khamkar ]
Aged about 59 years, ]
Occupation : Household, ]
1B Vasant Hanumant Khamkar ]
Aged about 59 years, ]
Occupation : Agriculturist ]
Both R/o. Vadgaon (Potnisanche) ]
Tal. Khandala, District Satara. ] ....Petitioners
Versus
1 Satish Parbati Gaikwad, ]
Aged about 54 years, ]
Occupation : Service & Agriculture, ]
R/o.Vadgaon (Potnisanche), ]
Tal. Khandala, District Satara. ]
2 Sou.Kamal Eknath Bhargude, ]
Aged about 60 years, ]
Occupation : Household, ]
R/o. At-Post Palshi, ]
Tal. Khandala, District Satara. ]
3 Sou.Shobha Atmaram Jadhav, ]
Aged about 52 years, ]
Occupation : Household, ]
R/o. Khanapur, Tal. Wai, ]
District Satara. ]
4 Sou.Sharda Bhanudas Kadam, ]
Aged about 47 years, ]
Occupation : Household, ]
R/o.Kejal, Tal. Wai, District Satara. ] ...Respondents.
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• Mr.Dilip Bodake for the Petitioners.
• Mr.Vaibhav R. Gaikwad a/w. Mr.Ramanik Pawan for Respondent
No.1.
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
DATE : 24 th JANUARY, 2018.
ORAL JUDGMENT :
1] Rule. Rule made returnable forthwith. Heard finally with
consent of learned counsel for the Petitioners and Respondent No.1.
2] By this Writ Petition filed under Article 227 of the
Constitution of India, the Petitioners are challenging the order dated
10th March 2017, passed by the Court of Civil Judge Junior Division,
Khandala, District Satara, below Exhibit-"247" in Regular Civil Suit
No.87 of 1995.
3] The application at Exhibit-247 was filed by Respondent
No.1-Plaintiff under Order-18 Rule-4 of Code of Civil Procedure (for
short, "C.P.C.") for leading additional evidence in order to bring on
record the document pertaining to the compromise arrived at between
the parties, out of the Court, on 26 th August 2012. It was submitted
that Respondent No.1 has received the said document after his
evidence and cross-examination was over. The trial Court has also
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allowed the production of the said document on 10 th March 2016 and
therefore, in order to prove the said document, Respondent No.1 may
be permitted to lead additional evidence under Order-18 Rule-4 of
C.P.C..
4] The said application was strongly resisted by the
Petitioners by submitting that the application is filed at a belated
stage, after the final arguments in the suit were heard and the matter
was fixed for the purpose of only the filing of Citation/Case Laws.
5] Further, it was submitted that the application filed by the
Respondent No.1 at Exhibit-242 seeking amendment in the plaint in
order to bring on record the subsequent event of alleged compromise
was also rejected by the trial Court on 16 th January 2017. The said
order is not challenged by Respondent No.1. On this ground also, this
application to lead additional evidence about the document in respect
of recording the compromise, in the absence of pleadings, cannot be
tenable and it should not be granted.
6] The trial Court, however, vide an one line order of, "Read
Application and say of other side. In the interest of justice, this
application is allowed" , allowed the said application, without giving
any reasons. Hence, being aggrieved thereby, the instant Writ Petition
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is preferred.
7] In view of the one-line order passed by the trial Court,
without giving any reasons for allowing the application, the first and
foremost submission of the learned counsel for the Petitioners is that,
the impugned order of the trial Court is clearly not tenable as it is
without any reasons and hence without application of mind and on
this ground itself, it is liable to be quashed and set-aside. It is
submitted that on this ground the matter needs to be remanded to the
trial Court for deciding the application afresh.
8] It is true that the "reasons" are the soul of any judicial
order, as they enable the parties to know why a particular order was
passed in their favour or against them. The recording of "reasons" in
the order also assists the higher Courts in deciding the legality and
validity of such order. Hence, the order without "reasons" is no order
in the eyes of the law. Therefore, there may be some substance in the
submission of learned counsel for Respondent No.1 that, if the order is
without reasons, then this Court should remand the matter to the trial
Court for considering the application at Exhibit-247 afresh, by giving
the reasons. In the normal course, this Court would have allowed the
said request of remanding the matter, but in the facts of the present
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Writ Petition, this Court finds it difficult to accept the said request or
to adopt the normal course of remand of the matter.
9] It is pertinent to note that in this case, the suit is filed by
Respondent No.1 in the year 1995. The suit is simpliciter for
injunction. In that suit, the present Petitioners have filed the counter
claim for possession and the proceedings of the suit are dragged from
time to time for a period of more than a decade and ultimately in the
year 2012, the evidence of Respondent No.1-Plaintiff came to be
recorded and it was completed on 27 th February 2012. Thereafter, the
cross-examination of the witnesses of Respondent No.1-Plaintiff was
also concluded. Then even the evidence of the Petitioners-Defendants
was also recorded. This process of "hearing" of the suit and recording
of evidence took place for not less than five years. Then, the final
arguments were heard and as can be seen from the order passed by
the trial Court below Exhibit-242 on 16 th January 2017, the matter
was kept for "filing of the Citations/Case Laws".
10] At this stage, the Respondents herein have filed the
application at Exhibit-242 for carrying out amendment in the plaint in
order to bring on record the additional fact that after the recording of
his evidence, the compromise was arrived at on 26 th August 2012 and
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he wants to bring those facts before the Court by way of amendment in
the plaint. The trial Court has, vide its order dated 16 th January 2017,
considered in detail the fact that on 10th February 2014 itself the
arguments were over and the matter was kept for filing Case
Laws/Citations. Thereafter, this application was filed. It was
considered that suit is of more than 20 years old. Moreover, the
application was filed without showing exercise of any due diligence
and in such situation, the application for amendment in the plaint was
not tenable. Therefore, the said application came to be rejected on 16 th
January 2017. Admittedly, that order is not challenged by Respondent
No.1 before the higher forum. As a result, it has become final.
Therefore, now merely because the production of the additional
document is allowed, whether the Respondent No.1 can be permitted
to lead additional evidence on the basis thereof, in the absence of any
pleadings to that effect? The answer has to be in the negative.
11] In this respect, learned counsel for the Petitioners has also
placed reliance on the judgment of the Apex Court in the case of
Executive Officer, Arulmigu Chokkanatha Swamy Oil Trust,
Virudhunagar vs. Chandran & Ors., 2017 (4) Mh.L.J. 809, wherein
identical facts of the case, it was held that, when the Plaintiff's
application made for amendment of the plaint was considered and
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rejected by the Court, the Application for leading evidence with regard
to which there is no pleading, cannot be allowed and hence, has been
rightly discarded by the trial Court. It was further held that, "unless
there is a pleading especially with regard to the source of title, the
defendant of a suit has no opportunity to rebut such pleading. Thus
the evidence with regard to which there is no pleading cannot be
relied upon by the Plaintiff for setting up his title."
12] In the instant case, as admittedly, the application seeking
amendment in the plaint for bringing on record the fact of compromise
is rejected and that order has become final, no permission can be
granted for leading of additional evidence in respect of additional
document recording alleged compromise, as such evidence would be
without any foundation in the pleading.
13] A useful reference in this respect can also be made to the
judgment of this Court in the case of Dileep Nevatia vs. State Bank of
India, 2015 (4) of All MR 231, wherein also in the identical facts, it
was held that, if the application is filed for leading of additional
evidence at the stage of final argument and if no sufficient ground is
made out for reopening of evidence and application is not even
mentioning as to how the evidence sought to be adduced, would
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advance the Plaintiff's case, such application needs tobe dismissed.
14] Here in the case as stated above, admittedly, not only the
recording of entire evidence is also over but even the arguments are
over and at this stage allowing reopening of evidence by granting
permission to lead additional evidence, in respect of a fact which is not
having foundation in the plaint and the permission to plead that fact is
also not granted and that order has become final, the trial Court has
committed a grave error in allowing such application, that too without
assigning any reasons for the same.
15] Learned counsel for Respondent No.1 has, however, relied
upon the judgment of this Court in the case of Rajesh Varma vs.
Aminex Holdings & Investments & Ors., 2008(3) Mh.L.J. 460 , in
which in the facts of that particular case it was held that, " the Plaintiff
having filed affidavit in lieu of examination-in-chief is not precluded
from recording further examination-in-chief". There cannot be any
dispute about this legal proposition but the only question is at which
stage, such permission is sought? Especially in the facts of the present
case, there is absolutely no pleading on record about the
compromise and also having regard to the fact that the final
arguments in the matter are also over, the law does not permit such
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exercise of leading additional evidence.
16] Learned counsel for Respondent No.1 has then relied upon
the judgment of this Court in the case of Jagdale Mirch Masale
Products (India) vs. Kamal Foods, 2010 (4) Mh.L.J. 619, wherein this
Court has considered the provisions of Section 311 of Criminal
Procedure Code. Now, admittedly, the said provisions pertain to the
Criminal matters, whereas in the present case, this Court is
considering the production of additional evidence in the Civil suit and
in the backdrop of the facts which are stated above. Hence this
judgment cannot be of assistance.
17] It is pertinent to note that in this case even though the
evidence of the Petitioners/Defendants was recorded subsequent to
the alleged compromise dated 26th August 2012, not a single
suggestion, even for the sake of it, was given to him, about the
compromise and his accepting of such amount under compromise.
18] It is also worth to note that the document recording alleged
compromise does not and cannot in any way take forward the case of
Respondent No.1 as the said document is executed on Stamp Paper of
Rs.10/- and it contains nothing more but for admitting the receipt of
the amount. It does not disclose anything in respect of the compromise
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of the suit or for which purpose said amount was received. The suit
filed by Respondent No.1 is also simpliciter for injunction. In such
situation, the alleged evidence of compromise, in my considered
opinion, even if, allowed to be brought on record, is not going to help
the case of Respondent No.1.
19] Conversely, it is going to cause a grave prejudice to the
Petitioners as it will unnecessarily protract and prolong the hearing of
the suit before the trial Court which has already crossed the age of 22
years. The suit is of the year 1995 and kept only for the filing of the
Case Laws/Citations and at this stage, taking it back to the original
stage and that too, in the absence of pleadings, which are of vital
significance by granting permission to lead additional evidence is
going to be sheer abuse of process of law. Therefore, the impugned
order passed by the trial Court cannot survive and hence, stands set-
aside. The Writ Petition is accordingly allowed.
20] Rule made absolute in above terms.
21] It is expected that the trial Court should decide the suit as
expeditiously as possible, as it is already at the stage of conclusion,
final arguments being heard.
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22] It is made clear that the above-said observations are made
only for the purpose of deciding this Writ Petition and the trial Court is
not to be influenced by the same.
[DR.SHALINI PHANSALKAR-JOSHI, J.]
