Bombay High Court
Tukaram Khashaba Hirve Through ... vs Ankush Rajaram Malavade And Ors on 23 February, 2021
Bench: Nitin W. Sambre
5.4158.19 wp.doc
ISM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4158 OF 2019
Tukaram Khashaba Hirve through ....Petitioner
his POA
V/s.
Ankush Rajaram Malavade and others .....Respondents
Ms. Manisha A. Devkar for the Petitioner
CORAM : NITIN W. SAMBRE, J.
DATE: FEBRUARY 23, 2021.
P.C.:
1] Petitioner initiated Regular Civil Suit No. 73 of 2000 in the
court of Civil Judge Junior Division, Dahiwadi whereby praying
Decree for declaration that he is the owner of Suit property and
Respondent-Defendant be restrained from interfering with his
peaceful possession.
2] It is the case of the Petitioner that Defendant got executed sale
deed in his favour by coercion and physical force. In the aforesaid
5.4158.19 wp.doc
background, at the time of fnal arguments, Application Exhibit 122
came to be moved seeking permission to lead evidence of the
Petitioner or to recall witnesses, which prayer was rejected vide
impugned order dated February 5, 2019.
3] By inviting attention of this court the judgement in the matter
of K. K. Velusamy Vs. N. Palanisamy [2011 (2) Supreme 667]
particularly paragraph 13 and 16, the submissions are, even if the
Suit is at the stage of fnal arguments, in the interest of justice it is
always open for the Civil Court to entertain interlocutory Applications
like the one moved in the present Suit. According to her in case if the
evidence which is already recorded in the form of cross examination
is not explained by way of re-examination as provided under section
138 of the Evidence Act, substantial prejudice will be caused.
4] A further contention is, in the interest of justice, Application
needs to be allowed thereby permitting the Petitioner to lead
additional evidence.
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5] I have considered aforesaid submissions in the light of the
reasons furnished by the Trial Court so also other proceedings which
are produced on record along with compilation.
6] It appears that evidence of the parties is already concluded and
present Application can be read either under Order XVIII Rule 17 or
Section 151 of the CPC.
7] No doubt the submissions of the learned counsel that an
Application, interlocutory in nature can be entertained at any stage
even if the Suit proceedings are at the stage of fnal arguments as can
be inferred from the judgment of K. K. Velusamy [cited Supra],
however for exercising such powers i.e. to show intervention at such
stage in extraordinary jurisdiction, Apex Court has laid down certain
parameters Viz. whether palpable injustice will be caused to the
party, whether he was denied an opportunity at an appropriate stage
of the proceeding and there was a valid and suffcient cause as to
why the evidence was not produced or lead on earlier occasion.
5.4158.19 wp.doc
8] Learned counsel for the Petitioner has tried to canvas that it is
necessary in the interest of Justice so as to prove the case, However,
the Court needs to be sensitive to the fact that Suit is pending since
last almost about 20 years. Petitioner was not diligent in perusing his
right. By way of this Petition, Petitioner is trying to turn the clock to
the stage of recording of evidence.
9] The Suit has reached at the fag end i.e. fnal augment. Earlier
attempts on the part of the Petitioner to amend the Suit were turned
down thereby observing that Petitioner is trying to protract the
litigation.
10] As far as the order impugned is concerned wherein the prayer
of the Petitioner for permission to lead additional evidence came to be
rejected, it can be noticed that Petitioner has not made out a case
wherein he could establish that at relevant time he was unable to
canvas the case which now he intends to. Attempt on the part of the
Petitioner is nothing but to cover up shortfalls which in any case is
not permissible.
5.4158.19 wp.doc
11] That being so, no case for interference is made out. Petition as
such fails, stands dismissed.
[NITIN W. SAMBRE, J.]
