Shri. Jahurkha Sandu Pathan vs Smt. Aliya Mehboob Pathan And Ors
2021 Latest Caselaw 5042 Bom

Rane                        1/6                SA-906-2015 (sr.2)
                                                 March 19, 2021.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
        CIVIL APPELLATE JURISDICTION

          SECOND APPEAL NO. 906 OF 2015

                      ALONGWITH
          CIVIL APPLICATION NO. 1978 OF 2015




Shri. Jahurkha Sandu Pathan             .....Appellant

       V/s.

Smt. Aliya Mehboob Pathan
and Ors.                                ....Respondents


                    -----
Mr. Nikhil M. Pujari, Advocate for the appellant.

Mr. Nilesh M. Wable, Advocate for respondents no.1 to 8.
                   -----

               CORAM : SANDEEP K. SHINDE, J.

Friday, 19th March, 2021.

P.C. :

1. Heard learned Counsel for the parties.

2. Defendant no.1 in the Regular Civil Suit

No.47/2003 has preferred this Appeal.

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                                                   March 19, 2021.

3. Respondents no.1 to 3 had filed Regular Civil

Suit No.47/2003 for partition of the suit property described

in para-1 of the plaint. The suit was decreed. The

Appellate Court, confirmed the decree of the trial Court

vide judgment dated 25th March, 2015. Feeling aggrieved,

defendant no.1 has preferred the Second Appeal.

4. Heard Mr. Pujari, learned Counsel for the

appellant.

FACTS AND CONTENTIONS :

5. Appellant is brother-in-law (husbands' brother)

of the respondent no.1, plaintiff. Sandu Pathan, father of

the appellant had left behind the suit property wherein,

parties were held entitled to 2/9th share each. Bone of

contention is, father of the appellant had left behind a Will,

wherein he had bequeathed ½ share in the suit property to

the appellant. Submission is "Will was in the custody of Rane 3/6 SA-906-2015 (sr.2) March 19, 2021.

appellants' deceased mother" and while the written

statement was filed, he had no knowledge of the said Will.

It is submitted that, soonafter the appellant came to know

about the Will, he had filed applications before the trial

Court below Exhibit-42 alongwith a copy of the Will, but it

was kept out of consideration. It is submitted, in memo of

First Appeal, issue concerning the Will was also raised

before the Appellate Court, however, it was not dealt with.

Learned Counsel for the appellant, would therefore contend

that, both the Courts had committed gross irregularity in

decreeing the suit, excluding the Will which had caused

gross injustice and prejudice to his rights.

6. I have perused Exhibit-42 dated 14th July, 2008.

Nevertheless, though a copy of the Will was filed, appellant

did not seek leave to amend the Written Statement. It may

be stated that, no efforts were made by the appellant to Rane 4/6 SA-906-2015 (sr.2) March 19, 2021.

adopt appropriate proceedings to claim his rights on the

basis of the Will.

7. Whether the alleged gross irregularity

committed by the Courts below while conducting the trial

and the appeal has caused prejudice to appellants' rights, is

the question.

. In terms of Order 8 Rule 9 (Bombay

Amendment), no pleadings subsequent to the written

statement of the defendant, other than by way of defence

to set-off or counter-claim shall be presented, except by the

leave of the court and upon such terms as the Court thinks

fit. However, the Court, may at any time require the

Written Statement or additional Written Statement from

any of the parties and fix a time for presenting the same.

Admittedly, the appellant did not make efforts to seek

leave as contemplated to file additional Written Statement

nor had taken recourse to the provisions of Order 8 Rule 8 Rane 5/6 SA-906-2015 (sr.2) March 19, 2021.

of the Civil Procedure Code. Infact, appellant could have

adopted appropriate proceedings and taken it to the logical

end. Nevertheless, it has not been done.

8. The next contention is, the Appellate Court

failed to exercise powers under Order 41 Rule 27 of the

Civil Procedure Code. I do not see any substance in this

argument. Simple reason is, admission of additional

evidence is permissible when it is established that "such

additional", evidence could not have been adduced at the

first instance with the best efforts. Thus, in consideration

of the facts of the case, in my view, the Courts below had

not committed irregularity, so as to cause prejudice to the

rights of the appellant.

9. Appeal does not give rise to any substantial

question of law. The Appeal is dismissed.

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                                                                       March 19, 2021.

10. With dismissal of the Appeal, Civil Application

No.1978 of 2015 filed for stay becomes infructous and does

not survive. The same is accordingly disposed of.

(SANDEEP K. SHINDE, J.) Neeta S.

Sawant Digitally signed by Neeta S. Sawant Date: 2021.03.23 11:53:58 +0530