1 wp780.11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 780 OF 2011 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. R.R. Mantri, Advocate for the petitioner. Mr. S.B. Yawalkar, Advocate for respondent no.1. Mr. P.M. Shah Senior Advocate with Mr. S.P. Shah, Advocate for respondent nos. 2A to 2C. CORAM : B.P. DHARMADHIKARI, J. DATE : 19TH APRIL, 2011 Heard Advocate Mr. Mantri for petitioner, Senior Advocate Mr. P.M. Shah with Advocate Mr. S.P. Shah for respondent nos.2A to 2C and Mr. Yawalkar for respondent no.1. 2. Advocate Mr. Mantri contended that service upon the respondent nos. 3 to 7 is essential as they are parties to suit. Senior Advocate Mr. Shah as also Advocate Mr. Yawalkar pointed out that it is an application made by the respondent nos. 2A and 2B for production of documents that has been allowed by the trial Court and that order has been assailed in the present Petition. Mr. Yawalkar 2 wp780.11 states that the respondent no.1 is subsequent purchaser of the said property. In this view of the matter, it is apparent that the service upon other respondents is not required. 3. By placing reliance upon the provisions of Order 8 Rule 1(a) of Civil Procedure Code, Advocate Mr. Mantri has contended that the respondent nos. 2A and 2B has not disclosed any documents either in their possession and in possession of anybody else or then as not available while filing written statement. He invites attention to stand initially taken by the said respondents to urge that effort was made to obtain a discharge by pointing out that the petitioner-plaintiff has claimed no relief against them. In this situation, after the petitioner- plaintiff filed affidavit of his examination in chief, for the first time the respondent nos.2A and 2B filed application seeking leave to produce documents. Application did not contain any explanation and still it has been allowed by trial Court. He argues that thus procedure mandated by Order 8 Rule 1(A) and its purpose stand defeated and the petitioner is taken by surprise and prejudiced because of belated production. 4. Advocate Mr. Shah on the other hand states that in plaint as filed originally there was no express contention about joint business in the name of Amar Stores between petitioner and the respondent no.2A to 2C. That assertion 3 wp780.11 has been added by adding paragraph no.8A to 8C to plaint for the first time on 25th October, 2010. Thereafter, the respondent no.1 and respondent nos.2A and 2B amended respective written statements and on 26.11.2010 that amendment was carried out. Because of amendment additional issues were framed on 06.12.2010 and thereafter on 01.01.2011 itself the petitioner-plaintiff filed affidavit of his examination in chief. On next date i.e. 12.01.2011 application seeking leave to produce documents came to be filed. He fairly states that in this situation, the trial Court can give necessary additional opportunity to petitioner-plaintiff to place his case in the light of documents produced but then order passed does not show any jurisdictional error or perversity. 5. Perusal of application at Exhibit-189 moved by the respondent nos. 2A and 2B show contention that original documents on which they seek to rely became available then and hence, they sought leave to produce those documents. Impugned order then looks into this reason and also notices that those documents are relevant to decide the suit. Briefly, the nature of documents is also commented upon and the Court has then opined that no prejudice would be caused to the petitioner-plaintiff as he has every right to cross examine the concerned defendants in relation to those documents. It also noticed that burden was on defendants to prove their defence. 4 wp780.11 6. In short, all the relevant aspects are looked into by the trial Court and thereafter permission has been granted. 7. There is change in stance of respondent nos.2A and 2B but that stance is not very relevant and at this stage need not be commented upon as the same can be looked into by the trial Court as and when its attention is invited to the same. Trial Court can also extend opportunity to petitioner to file additional affidavit or amended affidavit of his examination in chief in relation to those documents. Hence, I find no prejudice is suffered because of production of documents. The finding that documents are relevant reached by the trial Court is not assailed before this Court in any way. 8. I am therefore not inclined to interfere in the Writ Petition, hence is rejected accordingly. No costs. 9. Learned counsel for petitioner requests for continuation of interim relief operating till today for further period of six weeks. The request is being opposed by the Advocate Mr. Shah. I do not see any reason to grant such request. Request is rejected. (B.P. DHARMADHIKARI) JUDGE gas/wp780.11