1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 1057 OF 2010 1 Devakabai w/o Walmik Patil, age 50 years, occ. Household, R/o Jargaon, Tq. Pachora, Dist. Jalgaon, through her power of attorney holder, Walmik s/o Sonaji Patil, age 60 years, occ. Agriculture, r/o Jargaon, Tq. Pachora, Dist. Jalgaon ...Petitioner (Original Defendant no.1) VERSUS 1 Shaikh Sayam Sahikh Gulab, age 53 years, occ. Service, r/o Pachora, Tq. Pachora, Dist. Jalgaon, 2 Shaikh Chand Shaikh Gulab, through His legal heirs. 2A Umrabi w/o Shaikh Chand, age 68 years, occ. Nil, 2B Shaikh Hasan Shaikh Chand, age 45 years, occ. Labour, 2C Sayarabi w/o Atik, age 43 years, occ. Household, 2D Mairajbi w/o Hanif, age 41 years, occ. Household, 2E Shahanajbi w/o Rasid, age 40 years, occ. Household, 2 All Resp.nos. 2A to 2E r/o Pachora, Tq. Pachora, Dist. Jalgaon. 2F Tayarabi w/o Shaikh Harun, age 38 years, occ. Household, r/o Banoti, Tq. Soyagaon, Dist. Aurangabad, 2G Raihana d/o Shaikh Chand, age 35 years, occ. Household, R/o Pachora, Tq. Pachora, Dist. Jalgaon, 3 Shaikh Mahebood Shaikh Gulab, age 57 years, occ. Labour, 4 Shaikh Shabbir Shaikh Gulab, age 49 years, occ. Labour, 5 Shaikh Kalandar Shaikh Ahmed, age 53 years, occ. Labour, 6 Shaikh Master Shaikh Ahmed, age 51 years, occ. Labour, 7 Shaikh Babu Shaikh Ahmed, age 47 years, occ. Labour, 8 Shaikh Yunus Shaikh Ahmed, age 38 years, occ. Labour, 9 Shaikh Yunuf Shaikh Ahmed, age 37 years, occ. Labour, 10 Shaikh Sadik Shaikh Ahmed, age 35 years, occ. Labour, 3 11 Shaikh Rauf Shaikh Ahmed, age 31 years, occ. Labour, 12 Saidabi w/o Salim, 47 years, occ. Labour, 13 Munnabi w/o Shaikh Ahmed, age 61 years, occ. Household, Resp. nos. 3 to 13 are r/o Pachora, Tq. Pachora, Dist. Jalgaon, [Resp. No.1 is power of attorney holder for respondent no. 3 to 13] 14 Rahimatbi w/o Shaikh Gulab (Died), 15 Sugrabai w/o Mahammad Yunuf, age 59 years, occ. Household, r/o Goradkheda, Tq. Pachora, Dist. Jalgaon. ...Respondents (Resp. nos. 1 to 13 are Orig. plaintiffs and Resp. No.14 and 15 are Orig. Deft. No.2 and 3 respectively) ..... Shri R.V.Gore, advocate for the petitioner (orig. deft.no.1) Shri B.R.Warma, advocate for respondent nos. 1, 2A to 2G and 3 to 13 (orig.pltffs.) Respondent no.14 (original deft. no.2) died Shri S.I.Nandedkar, advocate for respondent no.15 (orig. deft.no.3) ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 16 th September, 2010 4 ORAL JUDGMENT : 1 Rule. Rule made returnable forthwith. With the consent of learned counsel for the respondents, the petition is taken up for final hearing. 2 The petitioner (original defendant no.1) has filed the present petition under Articles 226 and 227 of the Constitution of India, challenging the order dated 10.11.2009, passed by the learned Civil Judge, Junior Division, Pachora, District Jalgaon, below Exh. 207 in R.C.S. No. 110 of 2001, thereby rejecting the petitioner’s application for recalling the witness i.e. defendant no.3, and prayed for quashment thereof. 3 Original plaintiffs filed Regular Civil Suit No. 110 of 2001 against defendant nos. 1 to 3 including the petitioner herein i.e. defendant no.1, challenging the conditional sale deed dated 26.3.1991, executed by defendant no.2 in favour of defendant no.1 and consequent sale deed dated 31.3.1992 and further consequent mutation entries in pursuance thereof and also challenging the sale deed dated 22.1.1986, executed by defendant no.2 in favour of 5 defendant no.3 and prayed for cancellation thereof and also for the share of the plaintiffs in the suit property as per ownership and heirship rights and also for the mesne profits of the suit property, and copy of the said plaint is annexed at Exh. ‘A’. 4 The petitioner submits that she is original defendant no.1 in the said suit and she filed her written statement, thereby prayed for dismissal of the said suit. She stated in the said written statement that compromise which took place in Regular Civil Suit No. 57 of 1986 is not binding on her as she was not party to the said proceedings. Copy of the said written statement is produced at Exh. ‘B’. 5 The petitioner also submits that in Regular Civil Suit No. 110 of 2001, original defendant no.3 i.e. present respondent no.15 entered into witness box for evidence and while giving her evidence by way of examination in chief, neither she filed sale deed dated 22.1.1986 nor the said sale deed was referred during her cross- examination by defendant no.1 i.e. present petitioner. Thereafter, the plaintiffs cross-examined defendant no.3 and at that time, it is alleged that since the plaintiffs and defendant no.3 are relatives of 6 each other, they filed the said sale deed dated 22.1.1986 in collusion with each other and same was exhibited at Exh.206. It is the contention of petitioner that at that time only she raised objection for exhibiting the said sale deed, but the learned Judge directed that the said objection will be considered at the time of arguments. 6 Hence, in the facts and circumstances, the petitioner submits that she filed an application below Exh. 207 and thereby requested to recall defendant no.3 for cross-examination, since the said sale deed dated 22.1.1986 was taken on record and was exhibited after the cross-examination of defendant no.3 conducted by defendant no.1. Copy of the said application is produced at Exh. ‘F’. The plaintiffs filed the reply to the said application at Exh. 210, which is produced at Exh. ‘G’ and opposed the said application. Moreover, defendant no.3 also filed the say to the said application at Exh. 209 and opposed the said application, which is produced at Exh. ‘H’. 7 After considering the rival submissions, learned Civil Judge, Junior Division, Pachora rejected said application by order dated 10.11.2009 below Exh.207, copy thereof is produced at Exh. ‘I’, which has been impugned in present petition by the petitioner herein. 7 8 Learned counsel for the petitioner canvassed that sale deed dated 22.1.1986 was taken on record and was exhibited after conclusion of cross-examination of defendant no.3 conducted by her, and she did not get the opportunity to put the questions to defendant no.3 in respect of the said sale deed. Hence, it is submitted that the petitioner herein raised objection to exhibit said sale deed while learned counsel for the plaintiffs was cross-examining defendant no. 3, but learned Judge directed that the said objection would be considered at the time of arguments. Hence, the petitioner herein i.e. defendant no.1 preferred an application Exh. 207 on 13.8.2009 and requested that defendant no.3 be recalled for cross-examination to the extent of said sale deed, but the said application came to be rejected by learned Judge by order dated 10.11.2009, and accordingly, the petitioner submits that she has been deprived of the opportunity to cross-examine defendant no.3 in respect of the said sale deed, which would lead to miscarriage of justice. Hence, learned counsel for the petitioner urged that the impugned order dated 10.11.2009 deserves to be quashed and set aside and application Exh.207 is required to be allowed and the petitioner is required to be permitted to cross-examine defendant no. 3 to the extent of said sale 8 deed dated 22.1.1986. 9 Learned counsel for the respondents countered the said argument vehemently and submitted that the present application is premature and that the certified copy of the said sale deed was already on record and same was simply referred in the cross- examination of defendant no.3 by the learned advocate for the plaintiffs, and accordingly, same was taken on record and was exhibited during the said cross-examination. It is submitted that the petitioner (defendant no.1) herein had every opportunity to refer to the said sale deed, since certified copy thereof was on record, but the petitioner did not avail the said opportunity, and therefore, permission cannot be granted to the petitioner to recall defendant no. 3 to cross-examine her to the extent of said sale deed as prayed for, since the said application is after thought and is a device to protract the matter. 10 Hence, learned counsel for the respondents submitted that the learned Trial Judge has rejected the petitioner’s application for recalling defendant no.3 rightly and no interference therein is warranted and present petition bears no substance and same is devoid of any merits, and therefore, same be dismissed. 9 11 Considering the rival submissions advanced by the respective learned counsel for the parties, admittedly, the original sale deed dated 22.1.1986 was not brought on record and was not exhibited till the petitioner i.e. defendant no.1 conducted cross- examination of defendant no.3, although certified copy thereof was produced on record along with the list of documents, as contended by the learned counsel for the respondents. Hence, it is clear that the said sale deed was first time referred in the cross-examination of defendant no.3 by learned advocate Shri More for the plaintiffs, and accordingly, same was taken on record and marked as Exh. 206. In fact, at this juncture only, defendant no.1 i.e. petitioner herein raised the objection to exhibit the said sale deed. However, the learned Judge directed that the said objection would be considered at the time of arguments. 12 At this juncture, it is necessary to mention that such objections, if raised by the parties, while recording the evidence, are required to be dealt with then and there only by passing the verdict thereon after hearing the concerned parties, and such practice of considering the objection at the time of arguments, needs to be deprecated. 10 13 Apart from that, thereafter the petitioner preferred application Exh. 207 on 13.8.2009 and narrated the afore said facts therein and specifically pointed out that the original sale deed in question was brought on record after conclusion of cross- examination of defendant no.3 by defendant no.1, and therefore, defendant no.1 prayed that defendant no.3 be recalled for the cross- examination to the extent of the said sale deed. However, unfortunately the said application came to be rejected by learned Civil Judge, Junior Division, Pachora after considering the rival submissions advanced by the parties. 14 Thus, it is admitted position that the original sale deed in question dated 22.1.1986 was brought on record and was exhibited subsequently after the cross-examination of defendant no.3 conducted by defendant no.1 was over, and hence, it is apparent that the petitioner (defendant no.1) did not get opportunity to cross- examine defendant no.3 in respect of the said sale deed. Hence, defendant no.3 is required to be recalled for the cross-examination by defendant no.1 i.e. petitioner herein to the extent of the said sale deed in question dated 22.1.1986 under Order 18 Rule 17 of the Code of Civil Procedure, since such exercise can be done at any 11 stage of the suit and as the Court has got wide powers under the said provision. 15 In the circumstances, the impugned order dated 10.11.2009, passed by the learned Civil Judge, Junior Division, Pachora below Exh. 207 in R.C.S. No. 110 of 2001 deserves to be quashed and set aside and the application Exh. 207 preferred by the petitioner herein deserves to be granted by allowing the present petition. 16 In the result, present petition is allowed in terms of prayer clause ‘B’ thereof and the impugned order dated 10.11.2009, passed by the learned Civil Judge, Junior Division, Pachora below Exh. 207 in R.C.S. No. 110 of 2001 stands quashed and set aside and the application Exh. 207 preferred by the petitioner stands allowed and defendant no.3 be recalled for cross-examination by defendant no.1 i.e. petitioner herein to the extent of sale deed in question dated 22.1.1986 and the parties are directed to remain present before the concerned court on 11.10.2010. 12 17 Rule is made absolute in the afore said terms. (SHRIHARI P. DAVARE, J.) dbm/wp1057.10