Bombay High Court
Parvati Sakharam Patil vs Sunanda Sakharam Patil And Ors on 15 March, 2022
Bench: Nitin W. Sambre
(904)-WP-1040-22.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
BALAJI
CIVIL APPELLATE JURISDICTION
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL Date:
WRIT PETITION NO.1040 OF 2022
2022.03.16
10:22:03
+0530
Parvati Sakharam Patil ..Petitioner
Versus
Sunanda Sakharam Patil and Anr. ..Respondents
Mr. Nikhil N. Pawar, for the Petitioner.
Mr. Umesh H. Pawar, for the Respondents.
CORAM : NITIN W. SAMBRE, J.
DATE : 15th MARCH, 2022
P.C.
1. The prayer for setting aside impugned order dated 5th
January, 2022 passed below Exh.88 is objected by the counsel for
the respondents on following grounds :-
(a) That the hearing of the suit was already concluded on
31st March, 2021 and the same was posted for citing
judgments;
(b) The powers under Order XVIII Rule 17 of the CPC are
being invoked to fill up lacunas which are discovered
during the course of arguments; and
(c) The stage at which the application is moved, is not
maintainable.
2. I have appreciated the said submissions.
BGP. 1 of 3
(904)-WP-1040-22.doc.
3. The final hearing in the suit was concluded on 31st
March, 2021 and same was adjourned because of pandemic and for
citing judgments. Fact remains, till the order impugned was passed,
the judgment in the suit was not delivered, rather the suit is
required to be posted for rehearing in view of lapse of about one
year between last hearing and the present stage.
4. In the aforesaid background, it cannot be said that the
powers under Order XVIII Rule 17 of the CPC can't be invoked at
the behest of the petitioner at the present stage, as the law on the
said point is concluded in the matter of K. K. Velusamy Vs. N.
Palanisamy reported in (2011) 11 SCC 275 and Mukund Iron Staff
Association Co-op. Housing Society Ltd., Bombay Vs. Vasant
Ramchandra Patil reported in 2015(4) Mh.L.J. 855. Appropriate
reliance can be placed on observations in the judgments of the Apex
Court whereby the witness can be permitted to be summoned in the
interest of justice under Order XVIII Rule 17 r/w 151 of the CPC at
the behest of the party at any stage of proceedings.
5. In the facts of the present case, the plaintiff, old lady of
92 years has appointed Power of Attorney who was already
examined. The fact that the suit is pursueded through Power of
Attorney was a fact within the knowledge of the respondents.
6. That being so, keeping in mind the law laid down by the
Apex Court in the matter of Janki Vashdeo Bhojwani & Anr. Vs.
BGP. 2 of 3
(904)-WP-1040-22.doc.
Indusind Bank Ltd. & Ors. reported in 2005(2) SCC 217, petitioner
is entitled to the relief of allowing the executor of the Power of
Attorney to examine herself to the extent of proving the Power of
Attorney and bringing on record as facts which were within her
personal knowledge.
7. Needless to clarify that the respondents will be entitled
for appropriate opportunity of hearing on the said issue including
cross-examination of the said witness.
8. In the aforesaid background, order impugned dated 5 th
January, 2022 passed below Exh.88 is quashed and set aside subject
to respondents/defendants withdraw Rs.15,000/- which is already
deposited.
9. The petition stands allowed in above terms.
10. Needless to clarify that if the petitioner fails to conclude
evidence within a period of four weeks from today, the Court below
shall be at liberty to proceed ahead with the hearing of the suit
ignoring the right of the petitioner to examine herself.
[NITIN W. SAMBRE, J.]
BGP. 3 of 3
