Jerome Thomas Braganza vs Connelius Thomas Braganza And Ors
2021 Latest Caselaw 11505 Bom

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         Digitally
         signed by             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION
         DINESH
DINESH   SADANAND
SADANAND SHERLA
SHERLA   Date:
         2021.08.21                   WRIT PETITION NO. 9896 OF 2017
         17:26:42
         +0500


                  Jerome T. Braganza                                   ...Petitioner.
                       V/s.
                  Connelius Thomas Braganza and ors.                   ...Respondents.

                  Mr. V.Y. Sanglikar for the Petitioner.
                  Mr. V.P. Shastri i/b Ms Shruti Nai for Respondent No.1.

                                               CORAM     :         N.R. BORKAR, J.

                                               DATE      :         21.08.2021.

                      P.C. :

1. This petition takes an exception to the order dated 5.8.2017

passed by the City Civil Court, Gr. Bombay in Civil Suit No. 108312

of 1995.

2. The petitioner herein had fled the suit for declaration,

partition and separate possession against the respondents. The

respondent No.5/original defendant No.5 alongwith her afdavit-

in-lieu of examination-in-chief had fled two documents titled as

'Declarations'. The petitioner objected to marking the said

declarations as exhibits on the following grounds.

                           (i)       The declarations are inadmissible in evidence as they

                           are neither stamped nor registered; and

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         (ii)      The second declaration is not of deponent and the

         declarant's evidence is over.

3. The trial court by the impugned order rejected the

objections and marked those declarations as Exhibit-29(1) and

29(2) respectively.

4. The learned counsel for the petitioner submits that in view of

Full Bench judgment of this court reported in 2008 (6) Mh.L.J.

886 in the case of Hemendra Ghia vs. Subodh Mody, the

objection in relation to defciency of stamp duty needs to be

decided before the document is marked as exhibit. It is submitted

that there is no fnding in the order impugned with regard to said

objection. The learned counsel for the petitioner further submits

that considering overall circumstances of the case, the petitioner

may be permitted to raise all the objections in relation to the

declarations in-question at the time of fnal hearing of the suit.

5. Mere marking of the document as an exhibit will not make

the said document admissible in evidence, if it is otherwise,

inadmissible in evidence in view of provisions of either the

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Maharashtra Stamp Act, 1958 or Registration Act, 1908. Similarly,

it would not be appropriate to record any fndings in relation to the

admissibility or inadmissibility of the said documents in evidence

in writ jurisdiction. It would be therefore, appropriate to permit the

petitioner to raise all the objections in relation to the documents

in-question at the time of fnal hearing of the suit.

6. Needless to mention that the trial court shall deal with the

said objections appropriately in its judgment in relation to the

declarations at Exhibit - 29(1) and 29(2).

7. Considering the fact that the suit is of the year 1995 and the

petitioner is senior citizen, the trial court shall endeavour to

decide the suit as expeditiously as possible and in any case within

one year from today.

8. Writ Petition is disposed of accordingly.

                                                 [N.R.BORKAR, J.]




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