Shri. Narendra Padmakar Yewlekar ... vs Shri. Chandrakant Uddhav ...
2023 Latest Caselaw 9441 Bom

2023:BHC-AS:26215
                                                                                            906-wp6719-2023.doc


                             VRJ
                                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                CIVIL APPELLATE JURISDICTION

                                                    WRIT PETITION NO.6719 OF 2013


       VAIBHAV
       RAMESH
                             Narendra Padmakar Yewlekar & Anr.                ... Petitioners
       JADHAV
      Digitally signed by
      VAIBHAV RAMESH
      JADHAV
                                       V/s.
      Date: 2023.09.08
      13:26:04 +0530
                             Chandrakant uddhav Niphadkar                     ... Respondent

                                                                 WITH
                                                  CIVIL APPLICATION NO.2097 OF 2019
                                                                  IN
                                                    WRIT PETITION NO.6719 OF 2013


                             Narendra Padmakar Yevlekar & Anr.                ... Applicants
                                       V/s.
                             Chandrakant Uddhav Niphadkar Since
                             Deceased Through Legal Heirs & Ors.              ... Respondents

                                                                 WITH
                                                  CIVIL APPLICATION NO.2632 OF 2013
                                                                  IN
                                                    WRIT PETITION NO.6719 OF 2013

                             Narendra Padmakar Yewlekar & Anr.                ... Applicants
                                       V/s.
                             Chandrakant Uddhav Niphadkar                     ... Respondent


                             Mr. Abhijit A. Joshi for the petitioner.
                             Mr. Kayval P. Shah for the respondent.



                                                             CORAM      : AMIT BORKAR, J.

                                                             DATED      : SEPTEMBER 7, 2023






                                                                906-wp6719-2023.doc


 P.C.:

1. Mr. Shah states that he has instructions to appear on behalf of heirs and legal representatives of sole respondent. Statement is accepted.

2. By this writ petition under Article 227 of the Constitution of India, the defendants are challenging order passed by the Trial Court permitting the plaintiff to lead secondary evidence as regards the documents filed along Exhibit-49. The Trial Court permitted the plaintiffs to lead evidence based on the reasoning that the Court in 2010 permitted the plaintiffs to lead secondary evidence as regards certified copies of mortgage deed, and therefore, in the interest of justice, thought it fit to the plaintiffs to file affidavit of evidence to prove the documents.

3. The objection of the petitioners is basic. According to them, without pleadings such evidence cannot be looked into evidence. The objection raised can be dealt with by the Trial Court at the time of final hearing of the suit in view of judgment of Full Bench of this Court in Hemendra Rasiklal Ghia vs. Subodh Mody reported in 2008 (5) CTC 577.

4. It is well settled principle of law that no amount of evidence can substitute pleadings. If that be so, such objection has to be adjudicated by the Trial Court despite parties are permitted to lead evidence.

5. The Trial Court is, therefore, directed to adjudicate on the objection of the defendants that the documents produced along with Exhibit-49 cannot be considered as the evidence in absence

906-wp6719-2023.doc

pleadings at the timing of final hearing of the suit.

6. With this clarification, civil writ petition stands disposed of. No costs.

7. In view of disposal of the civil writ petition, civil applications do not survive and the same stand disposed of.

(AMIT BORKAR, J.)