Bombay High Court
Gajanan S/O Bhikaji Bhaturkar vs Anil S/O Balmukund Bharuka on 27 September, 2021
Bench: Avinash G. Gharote
(1) 17.wp.3706.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3706 OF 2021
Gajanan s/o Bhikaji Bhaturkar
Vs.
Anil S/o Balmukund Bharuka
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. A. M. Tirukh, Advocate for petitioner.
CORAM : AVINASH G. GHAROTE, J.
DATE : 27/09/2021
Heard Mr. Tirukh, learned Counsel for the
petitioner.
2. The petition challenges two orders passed by
the learned Trial Court, firstly the order below Exh.26,
whereby a bailiff report placed on record which was
marked as Exh.24 during the course of cross-examination
of the original defendant (applicant in M.J.C. for setting
aside an ex-parte decree) was sought to be de-exhibited,
which application at Exh.26 has been rejected and
secondly the order below Exh.27 praying for recasting or
re-framing of the issue.
3. Mr. Tirukh, learned Counsel for the
petitioner has been unable to point out any provision
which permits the Court to de-exhibt a document, once
exhibited. In this case, it is submitted that while
exhibiting the document during the cross-examination of
the original defendant, objection was raised, which was
rejected, whereupon the document was exhibited. That
(2) 17.wp.3706.2021
being the position, I do not see that there is any infirmity
in the impugned order. The objection, that it is not a
public document, has now been taken care of, by
permitting the original defendant to summon the bailiff,
who had given the said bailiff report. It is settled
position of law that mere marking of a document does
not dispense with the proof of the same and merely
because a document may have been termed a public
document that would not deter from the original nature
of the document and perhaps considering this position,
the original defendant has been permitted to summon
the bailiff, who has written the said bailiff report.
4. Reliance place on the Judgment in the case
of Sushil Kumar Mandanlal Ganediwal Vs. Vijay Kumar
Mandanlal Ganediwal, 2019 (3) Mh. L. J. 721 in support
of the plea for de-exhibiting the document is clearly
misplaced, as the Court has not held that a document
once exhibited can be de-exhibited. It has held that the
bailiff report is not a public document and required to be
proved in a manner as envisaged by law. There cannot
be any dispute in the proposition, which is the reason
why the learned Trial Court has permitted issuance of
summon to the bailiff, who has written the said bailiff
report.
5. Insofar as the order below Exh.27 is
concerned, learned Counsel submits that in an
application for setting aside ex-parte decree filed by the
original defendant, the burden to prove that there was
valid service, ought to be upon the original plaintiff/non-
applicant. Equally the burden to prove that there was no
(3) 17.wp.3706.2021
service also ought to be upon the original plaintiff/non-
applicant. The issue to frame or casting the burden upon
the original defendant to prove non service of the
summon according to the learned Counsel has been
incorrectly framed, which requires either to be corrected
or new issue is required to be framed.
6. In my considered opinion, when the original
defendant filed an application under Order 9 Rule 13 of
CPC for setting aside ex-parte order decree the burden to
prove that there was no service of summon, which is
alleged by the original defendant, would be upon the
original defendant, who makes that allegation and not
otherwise, in view of which the rejection of the
application at Exh.27 cannot be faulted with.
7. The Writ Petition, therefore, is without any
merits and accordingly dismissed. No costs.
JUDGE
Sarkate
