Bombay High Court
Hemchandra Bhaskar Vaidya vs Snehalata Sadashiv Kanade And Ors on 6 February, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:6212
45-WP12067-2024.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12067 OF 2024
Hemchandra Bhaskar Vaidya ...Petitioner
Versus
1. Snehalata Sadashiv Kanade
2. Vijay Shankar Mainkar
3. Sudha Rajaram Khade
4. Vandana Subhash Mainkar
5. Kamal Vamanrao Kanade ...Respondents
SANTOSH
SUBHASH
KULKARNI Mr. Jayesh Joshi, a/w Mitali Dhoble, for the Petitioner.
Digitally signed by
SANTOSH SUBHASH
Mr. Krunal Thakkar, for the Respondents.
KULKARNI
Date: 2025.02.07
18:56:55 +0530
CORAM: N. J. JAMADAR, J.
DATED: 6th FEBRUARY, 2025
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and with the
consent of the learned Counsel for the parties, heard finally.
2. The petitioner - plaintiff takes exception to an order
passed by the learned Civil Judge, Senior Division, Thane, on
an application (Exhibit-67) dated 1st August, 2024, whereby the
prayer of the plaintiff seeking a direction to the defendant to
produce the original Will dated 24 th December, 1996 and Codicil
dated 23rd September, 2002 of Shankar Dhondu Mainkar, the
predecessor-in-title of the defendants, and in the alternative to
read the copies of the said Will and Codicil which were already
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on record as the secondary evidence and, in the further
alternative, to issue the witness summons to the Registrar of
Assurances, Thane, before whom those Will and Codicil were
registered to produce the certified copies thereof and depose
before the Court, came to be rejected.
3. The plaintiff instituted the suit for specific performance of
a Memorandum of Understanding (MoU) dated 28th May, 2009
executed by Ashok Shankar Mainkar, conferring rights on the
plaintiff to develop the suit property on 'as is where is basis' and
the consequential reliefs. The said MoU inter alia contained a
recital that late Shankar Mainkar, the holder of the suit
property, had left behind registered Will and Testament dated
24th December, 1996 and Codicil dated 23rd September, 2002,
whereunder the property was bequeathed to all his legal heirs
equally i.e. 1/6th share each, and Ashok Mainkar was
authorised to manage the suit property and enter into
transactions with persons to develop the suit property.
4. The plaintiff led his evidence. As the defendants did not
lead their evidence, the trial court closed the evidence of the
defendants and the suit came to be posted for arguments. On
30th July, 2024 the plaintiff filed instant application (Exhibit-67)
seeking abovereferred reliefs.
45-WP12067-2024.DOC
5. The defendants resisted the application on the ground that
despite ample opportunity the plaintiff did not seek the
production of the original Will and Codicil or make any effort to
prove those documents in evidence. At the belated stage, when
the suit was posted for final argument, the plaintiff filed the
application to fill in the lacuna.
6. By the impugned order, the learned Civil Judge was
persuaded to reject the application observing that the plaintiff
had sufficient opportunity to prove his case but the plaintiff
slept over his rights. Since the suit was posted for final
argument the trial court agreed with the contentions on behalf
of the defendants that the application was filed to fill in the
lacuna in the plaintiff's case.
7. Mr. Joshi, the learned Counsel for the petitioner,
submitted that there is no dispute about the execution of the
said Will and Codicil. In the written statement, the defendants
have specifically referred to the execution of the Will and Codicil
by late Shankar and an endeavour was made to contend that
since Probate has not been obtained the said Will cannot affect
the subject property. The petitioner had placed copy of the Will
of the deceased Shankar alongwith list of the documents filed in
the year 2018 itself. Since there was no contest on the point of
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the execution of the Will and the Codicil and the defendants had
also relied upon the said documents, no prejudice would be
caused to the defendants by placing the original documents on
record, and in the alternative, by providing an opportunity to
the plaintiff to adduce evidence with regard to those documents.
The learned Civil Judge took a hypertechnical view of the
matter, urged Mr. Joshi.
8. Mr. Thakkar, the learned Counsel for the respondents,
supported the impugned order. It was submitted that no cause,
much less justifiable one, was ascribed to permit the plaintiff to
reopen the evidence. The Will and Codicil were exclusively
referred to in the MoU on the strength of which the suit has
been filed. The plaintiff had more than adequate opportunity to
prove the said documents. In substance, the plaintiff cannot
contend that despite exercising due diligence the said evidence
could not be produced at an earlier point of time.
9. Mr. Thakkar placed reliance on a judgment of this Court
in the case of Pralhad Chavatrao Lawand vs. Parvati Gramin
Bigar Sheti Sahakari Pathsanstha Maryadit and ors. 1, wherein
after adverting to the decision of the Supreme Court in the case
of K. K. Velusamy vs. N. Palanisamy2, this Court enunciated
1 WP/15440/2023, dtd.11.12.2023.
2 (2011) 11 Supreme Court Cases 275.
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that in the absence of material to show that despite due
diligence the party could not have produced the evidence earlier,
it was not permissible to adduce the evidence after conclusion of
the trial.
10. I have carefully perused the material on record and given
anxious consideration to the rival submissions canvassed
across the bar. The legal position, post the deletion of Order
XVIII Rule 17-A by Civil Procedure Code (Amendment) Act, 1999,
was expounded by the Supreme Court in the case of Velusamy
(supra). The observations of the Supreme Court in paragraph
13, 14 and 19 are instructive and hence extracted below:
"13. The Code earlier had a specific provision in Order 18
Rule 17A for production of evidence not previously known or
the evidence which could not be produced despite due
diligence. It enabled the court to permit a party to produce
any evidence even at a late stage, after the conclusion of his
evidence if he satisfied the court that even after the exercise
of due diligence, the evidence was not within his knowledge
and could not be produced by him when he was leading the
evidence. That provision was deleted with effect from
1.7.2002. The deletion of the said provision does not mean
that no evidence can be received at all, after a party closes
his evidence. It only means that the amended structure of
the Code found no need for such a provision, as the
amended Code contemplated little or no time gap between
completion of evidence and commencement and conclusion
of arguments. Another reason for its deletion was the misuse
thereof by the parties to prolong the proceedings under the
pretext of discovery of new evidence.
14. The amended provisions of the Code contemplate and
expect a trial court to hear the arguments immediately after
the completion of evidence and then proceed to judgment.
Therefore, it was unnecessary to have an express provision
for re-opening the evidence to examine a fresh witness or for
recalling any witness for further examination. But if there is
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a time gap between the completion of evidence and hearing
of the arguments, for whatsoever reason, and if in that
interregnum, a party comes across some evidence which he
could not lay his hands earlier, or some evidence in regard to
the conduct or action of the other party comes into
existence, the court may in exercise of its inherent power
under Section 151 of the Code, permit the production of
such evidence if it is relevant and necessary in the interest of
justice, subject to such terms as the court may deem fit to
impose.
.........
19. We may add a word of caution. The power under
Section 151 or Order 18 Rule 17 of the Code is not intended
to be used routinely, merely for the asking. If so used, it will
defeat the very purpose of various amendments to the Code
to expedite trials. But where the application is found to be
bona fide and where the additional evidence, oral or
documentary, will assist the court to clarify the evidence on
the issues and will assist in rendering justice, and the court
is satisfied that non-production earlier was for valid and
sufficient reasons, the court may exercise its discretion to
recall the witnesses or permit the fresh evidence. But if it
does so, it should ensure that the process does not become a
protracting tactic. The court should firstly award appropriate
costs to the other party to compensate for the delay.
Secondly the court should take up and complete the case
within a fixed time schedule so that the delay is avoided.
Thirdly if the application is found to be mischievous, or
frivolous, or to cover up negligence or lacunae, it should be
rejected with heavy costs. If the application is allowed and
the evidence is permitted and ultimately the court finds that
evidence was not genuine or relevant and did not warrant
the reopening of the case recalling the witnesses, it can be
made a ground for awarding exemplary costs apart from
ordering prosecution if it involves fabrication of evidence. If
the party had an opportunity to produce such evidence
earlier but did not do so or if the evidence already led is clear
and unambiguous, or if it comes to the conclusion that the
object of the application is merely to protract the
proceedings, the court should reject the application. If the
evidence sought to be produced is an electronic record, the
court may also listen to the recording before granting or
rejecting the application."
(emphasis supplied)
11. A useful reference can also be made to a three Judge
Bench judgment of the Supreme Court in the case of Salem
45-WP12067-2024.DOC
Advocate Bar Association Vs Union of India3. The observations
of the Supreme Court in the case of Salem Association (supra)
with regard to the impact of deletion of Sub-Rule (4) of Rule 2
and Rule 17-A of Order XVIII underscore the principle that the
Civil Courts inherent power to call for any witness or permit a
party to adduce evidence at any stage, is not taken away. The
observations in paragraphs 13 and 32 are material and hence
extracted below:
"Additional Evidence
13. In Salem Advocates Bar Assn. case, it has been clarified
that on deletion of Order XVIII Rule 17-A which provided for
leading of additional evidence, the law existing before the
introduction of the amendment, i.e., 1st July, 2002, would
stand restored. The Rule was deleted by Amendment Act of
2002. Even before insertion of Order XVIII Rule 17-A, the
Court had inbuilt power to permit parties to produce evidence
not known to them earlier or which could not be produced in
spite of due diligence. Order XVIII Rule 17-A did not create any
new right but only clarified the position. Therefore, deletion of
Order 18 Rule 17-A does not disentitle production of evidence
at a later stage. On a party satisfying the Court that after
exercise of due diligence that evidence was not within his
knowledge or could not be produced at the time the party was
leading evidence, the Court may permit leading of such
evidence at a later stage on such terms as may appear to be
just.
Order 18 Rule 2
32. Order 18 Rule 2(4) which was inserted by Act 104 of
1976 has been omitted by Act 46 of 1999. Under the said rule,
the Court could direct or permit any party, to examine any
party or any witness at any stage. The effect of deletion is the
restoration of the status quo ante. This means that law that
was prevalent prior to 1976 amendment, would govern. The
principles as noticed hereinbefore in regard to deletion of
Order 18 Rule 17(a) would apply to the deletion of this
provision as well. Even prior to insertion of Order 18 Rule 2(4),
such a permission could be granted by the court in its
discretion. The provision was inserted in 1976 by way of
3 (2005) 6 SCC 344.
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caution. The omission of Order 18 Rule 2(4) by the 1999
amendment does not take away the Court's inherent power to
call for any witness at any stage either suo motu or on the
prayer of a party invoking the inherent powers of the Court."
(emphasis supplied)
12. The position in law which thus emerges is that despite the
deletion of Rule 17-A of Order XVIII of the Code, the Civil Court
is not denuded of the power to permit a party to produce
documents or lead additional evidence. The true test that is
required to be applied is, whether the application is bona fide
and the additional evidence oral or documentary is of such
nature that it would assist the Court to arrive at a just decision
of the case. Undoubtedly, the aspect of delay and
reasonableness of explanation for not adducing such evidence at
an earlier point of time bear upon the exercise of discretion.
13. Reverting to the facts of the case, first and foremost, it is
necessary to note that there is no dispute, as such, about the
execution, existence and the contents of the Will and Codicil. In
paragraphs 7 to 9 of the written statement filed on behalf of the
defendants, the defendants have exclusively referred to the
registered Will and Codicil left behind by late Shankar and the
authority given to Ashok Mainkar to manage the suit property
and enter into transaction to develop the same. What is
conspicuous by its absence is the challenge to either the
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execution of the Will or the testamentary or disposing capacity
of late Shankar. In paragraph 9, it is contended that though the
Will and Codicil have been registered yet Probate has not been
obtained from the competent court. Secondly, in the MoU there
is a specific reference to the said registered Will and Codicil and
the authority conferred upon Ashok Mainkar under the said
testamentary instruments.
14. If the stand of the defendants, manifested in the written
statement is considered, an inference becomes justifiable that
the execution, existence and contents of the Will were not put in
contest. The real question that arises for adjudication in the
suit is, whether Ashok Mainkar had the authority to execute the
MoU on behalf of the other legal heirs of late Shankar and, more
importantly, bind them. For the determination of the said
controversy, the Will and Codicil, which find specific reference in
the MoU, appear to be necessary. From this stand point, in my
view, the crucial test of necessity of the said evidence for a just
decision of the case can be said to have been satisfied.
15. This propels me to the aspect of the delay in seeking the
production of the said evidence. Incontrovertibly the application
was moved when the suit was posted for argument. However,
the sequence of the proceedings before the trial court cannot be
45-WP12067-2024.DOC
lost sight of. On 12th March, 2024, the plaintiff closed his
evidence. The defendants did not lead evidence on 6 th April,
2024 and 26th June, 2024 and, thereupon, the evidence of the
defendant was closed and the matter was posted for arguments.
16. The submission on behalf of the plaintiff that the plaintiff
was under an impression that the defendants would produce
the said documents in their evidence may not constitute a
complete justification for such belated application. Yet the fact
that both the parties proceeded with the trial fully cognizant of
the existence of the Will and Codicil nay did not dispute the
existence and contents thereof, and the plaintiff had placed a
copy of the Will on the record of the Court, indicates that there
was no lack of bona fide on the part of the plaintiff. As the core
controversy essentially turns upon the authority of Ashok
Mainkar to execute the MoU on the strength of the power
purportedly conferred under the Will and Codicil of late
Shankar, in my considered view, the fact that there was
inadvertence or delay on the part of the plaintiff in adducing the
said evidence does not preclude the plaintiff from seeking the
production of those documents and, in the alternative, prove
those documents in evidence.
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17. It is also imperative to note that even the custody of the
said document was not put in contest by the defendants. If the
documents are in the possession or power of the defendants and
the custody of those documents with the defendants appears to
be natural, a direction for production of those documents would
advance the cause of justice. If the defendants produce those
documents and, as is evident from the written statement of the
defendants, do not object to the admission of those documents
in evidence, no further evidence would be warranted. On the
contrary, if the defendants do not produce the documents, the
plaintiff deserves an opportunity to lead secondary evidence in
respect of the said Will and Codicil.
18. For the forgoing reasons, I am impelled to allow the
petition. Hence the following order:
:ORDER:
A. The petition stands allowed.
B. The order dated 1st August, 2024 passed on application
(Exhibit-67) in Special Civil Suit No.142 of 2012 stands quashed
and set aside.
C. The application Exhibit-67 stands allowed in the following
terms:
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(i) The defendants are directed to produce the original Will
dated 24th December, 1996 and the codicil dated 23 rd September,
2002 of Shankar Dhondu Mainkar before the trial court, within
a period of thee weeks from the date of uploading of this order.
(ii) If the defendants do not produce the original Will and
codicil before the trial court, within the said period, the
petitioner - plaintiff shall be at liberty to adduce secondary
evidence of the said will and codicil.
(iii) The parties are at liberty to adduce evidence with regard
the said Will and codicil.
Rule made absolute in the aforesaid terms.
No costs.
[N. J. JAMADAR, J.]
