Madhukar S/O Gopichand ... vs Ganesh S/O Deochand Ghughuskar ...
2022 Latest Caselaw 10580 Bom

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

                             WRIT PETITION NO. 760 OF 2021
                  Madhukar s/o Gopichand Ghughuskar and others
                                      Vs.
                   Ganesh s/o Deochand Ghughuskar and others

Office Notes, Office Memoranda                           Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. V.D. Muley, Advocate for the Petitioners.



                                  CORAM:         AVINASH G. GHAROTE, J.

DATED : 12th OCTOBER, 2022.

Heard Mr. V.D. Muley, learned counsel for the petitioners. None appears for the respondents though served. The petition questions the order dt. 25/1/2021, passed by the learned Trial Court passed below Exh.105, an application on behalf of the defendant No.1 to strike out or delete the depositions in the affidavit of oral evidence of the plaintiffs / petitioners as made in paragraph Nos. 3, 5 and 6 on the ground, that the relinquishment deeds dated 11/12/1992 and 27/09/2001 were inadmissible, which plea has been accepted by the learned Trial Court by the impugned order based upon provisions of Section 92 of the Evidence Act.

2. Mr. Muley, learned counsel for the petitioners submits that the averments regarding the aforesaid two documents are found in paragraph Nos. 5 and 6 of the 2 1-wp-760-2021.odt

plaint (page 9), the documents were also placed on record and have been marked as Articles A and B and therefore, the stage of examination of witnesses to these documents so as to prove them is yet to arrive as the plaintiff has examined himself as PW 1 and therefore, the application at Exh.105 was not maintainable at all, neither is there any provision to strike off the pleadings on this ground that the relinquishment deeds were not proved. He therefore, submits that the impugned order cannot be sustained and is required to be quashed and set aside.

and 6 of the plaint (page 9) as well as the affidavit in paragraph Nos. 5 and 6 (page 29) make a specific mention about these documents. In the examination-in- chief these documents have been marked as Articles A and B. The petitioner / plaintiff thereafter has been cross-examined by the defendants. The pleadings in respect of these documents are already there in the plaint. In case the documents are not proved as per the mode prescribed by the Evidence Act, the learned Trial Court would be entitled to discard the documents, however, at this stage, the averments in respect of these documents as contained in the affidavit evidence cannot be permitted to be deleted merely on the grounds that the documents are not proved. This is also for the reason that the evidence of the plaintiff's side is yet to be completed. Even if the evidence is completed and the documents still are not proved, the Court may at the 3 1-wp-760-2021.odt

most at the time of judgment, may hold that the pleadings are not proved and therefore, render a finding in that regard. That however, does not permit the Court from deleting averments itself, from the affidavit evidence. The reliance by the learned Trial Court on the provisions of Section 92 of the Evidence Act is misconceived as it does not permit, the learned Trial Court to delete averments in the affidavit evidence on the ground that the documents have not been produced. The impugned order therefore, cannot be sustained and is quashed and set aside. The application at Exh.105 is dismissed. The petition is therefore, allowed in above terms. No costs.

JUDGE MP Deshpande

Digitally signed by:MILIND P DESHPANDE Signing Date:12.10.2022 19:04