Vinayak Ganpatrao Borale And ... vs Shankar Shriram Tapre And Others
2022 Latest Caselaw 6470 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR.

                           WRIT PETITION NO. 2715 OF 2019
                            Vinayak Ganpatrao Borale and others
                                           -Vs.-
                             Shankar Shriram Tapre and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders                                   Court's or Judge's Orders.
or directions and Registrar's orders.
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                                       Mr.A.R.Deshpande, counsel for the petitioners.
                                       Mr.S.M.Vaishnav, counsel for respondent No.5.
                                       Mrs.S.S.Jachak, AGP for respondent Nos.11 to 13.



                                               CORAM : MANISH PITALE, J.

DATE : 11.07.2022

Heard the learned counsel for the parties.

2. By this writ petition, the petitioners have challenged two orders passed by the Court of Joint Civil Judge, Senior Division, Akola, whereby applications filed by the contesting respondents for placing on record certain documents have been partly allowed and certain documents have been directed to be marked as exhibits.

3. It is the case of the petitioners, i.e. the original plaintiffs that in a suit for permanent injunction filed on their behalf, the respondents/original defendants failed to file written statement. There are no pleadings on their behalf before the Trial Court. The matter proceeded to the stage of final arguments when the aforesaid applications were filed on behalf of the

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respondents. By the first impugned order dated 19/01/2019, the Court below allowed the application on the ground that it was necessary for fair and complete adjudication of the matter and by the impugned order dated 13/02/2019, the Court below partly allowed the application for marking some of the said documents as exhibits.

4. The learned counsel appearing for the petitioner strenuously submitted that the proceedings before the Trial Court have travelled to the stage of the final arguments and admittedly there being no pleadings on behalf of the respondents and there being no question and of they leading any evidence in that context, filing of documents in such a manner ought not to have been permitted and consequently marking some of them as exhibits demonstrated erroneous exercise of jurisdiction by the Court below.

5. Despite the objections raised on behalf of the petitioners, the impugned orders were passed and on present writ petition being filed before this Court, while issuing notice, proceedings before the Court below were stayed.

6. The learned counsel appearing for the petitioners reiterated the contentions raised before the Court below and raised strong objection to the cavalier manner to which the Court below had partly allowed the application. It was submitted that there being absence of pleadings and any issues being struck in that

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regard, there was no question of the documents being placed on record and/or some of them being marked as exhibits.

7. On the other hand, the learned counsel appearing for the contesting respondents submitted that the documents were necessary to elucidate the dispute in the matter and that some of the documents were copies of the resolutions which found mention in the plaint itself. Reliance was placed on judgment of this Court in the case of Bipin Jaysukhlal Mehta vs. Jayantibhai Talakchand Shah, reported in 2019 (1) Mh.L.J. 690.

8. This Court has heard the learned counsel for the rival parties in the backdrop of the material placed on record. It is an admitted position that in the present case, the respondents did not file written statement. Obviously there was no possibility of them leading any evidence in the absence of pleadings and that the proceedings before the Court below in a suit filed in the year 2002 had reached the stage of final arguments. It is at this stage, that the applications were filed on behalf of the contesting respondents. A perusal of the applications shows that cryptic statements were made therein as regards the documents sought to be placed on record and on the basis of such material, the Court below by the impugned orders granted the said applications. On a query put to the learned counsel appearing for the respondents as to under which

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provision the said applications could have been granted, the learned counsel candidly submitted that he could not identify any specific provision of the Code of Civil Procedure in that regard. Even otherwise, considering the fact that the proceedings before the Court below were at the stage of final arguments, in the absence of any pleadings on behalf of the respondents, there was no reason why the Court below could have shown indulgence by passing the impugned orders. Insofar as the documents finding mention in the plaint is concerned, it is the risk that the petitioners are taking, if they are resisting placing of such documents on record. But, what is crucial, is that the procedure laid down in the Code of Civil Procedure cannot be given a go-by merely because the Court at the stage of final arguments is impressed by an assertion made on behalf of the respondents, in the absence of pleadings, that documents need to be placed on record and exhibited.

9. Reliance placed on the judgment in the case of Bipin vs. Jayantibhai (supra) is wholly misplaced for the reason that in the said case, pleadings had been completed, the Trial Court had framed necessary issues and pursuant to additional issues being framed an affidavit of further examination-in-chief was filed and in that context attempt to place on record additional documents was being considered by this Court. In the facts of the said case and the stage at which the proceedings were in the backdrop of pleadings being complete and issues being struck, it was found that a

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case was made out for placing documents on record. Such are not the facts in the present case.

10. Therefore, this Court is convinced that the impugned orders are unsustainable. Consequently, they are set aside. Accordingly, the writ petition is allowed in terms of the prayers made therein.

11. The Court below shall now proceed to expeditiously dispose of the said suit.

JUDGE

Signed By:GHANSHYAM S KHUNTE

Signing Date:13.07.2022 10:48

KHUNTE