1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. WRIT PETITION Nos. 94, 1071 & 1075 OF 2009 (Ramesh A. Dhote ....vrs... Bainabai Ramprasad Jugerdrmiya) - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - -------------- - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - ---------------- - - - - - - - - - - - - - - - - - - - CORAM : Smt. VASANTI A. NAIK, J. DATE : 22 nd APRIL, 2009 Since all the orders impugned in these three Writ Petitions arise out of Regular Civil Suit Nos. 9/1996 and 10/1996 and since the parties to the two Writ Petitions are almost identical and the facts involved in the Writ Petitions are also similar, they are heard together and are decided by this common order. The petitioner is the defendant in Regular Civil Suit No.9/1996 and is the plaintiff in Regular Civil Suit No. 10/1996. The petitioner had filed the said Suit for a declaration that he was a co-owner of the suit property and the same was in his possession. He has further sought a declaration that the sale deed executed by his father Anandrao, the defendant no.3 in favour of the defendant nos. 1 and 2 on 16.02.1996 was bogus and null and void. The suit of the plaintiff as decreed by the trial Court. A Second Appeal challenging the judgment and decree dated 2 25.10.2004 was filed before this Court, and this Court had remanded the matter to the trial Court to decide the same afresh on merits. Though this Court had directed the trial Court to decide the Regular Civil Suit Nos. 9 and 10 of 1996 within a stipulated time, it appears that the petitioner filed the three applications before the trial Court in Regular Civil Suit No.10./1996, seeking amendment of the plaint under the provisions of Order 6 Rule 17 of Civil Procedure Code; for appointment of handwriting expert and for permission to file Exh.134 i.e. Kabuliyatnamya cha lekh dated 16.02.1996 on record. It was stated by the petitioner in all the three applications that, though the Kabuliyatnamya cha lekh was executed on 16.02.1996, the defendants suppressed the said fact in Regular Civil Suit No.9/1996 as well as in Regular Civil Suit No.10/1996. It was the case of the petitioner, that in view of the contents of the document - Kabuliyatnamya cha lekh, the defendant nos. 1 and 2 had to pay balance consideration of Rs. 5 lakhs to the defendant no.3 Anandrao till 16.02.1998. According to the petitioner he wanted to raise a plea that the consideration of Rs. 5 lakhs was not paid to the defendant no.3 by the defendant nos. 1 and 2 till 16.02.1998 or at any point of time thereafter, and hence it was necessary to bring this fact on record. The petitioner stated in the application that the petitioner became aware of this Kabuliyatnamya cha lekh for the first time on 20.10.2008 and immediately filed an application seeking amendment of 3 the plaint. The petitioner then stated in the application for seeking permission to examine the document from the hand writing expert, that it was necessary to get the opinion of the handwriting expert on the document after examining the same. The petitioner also sought permission to file the said document on record. All the three applications were rejected by the trial Court by separate orders dated 27.11.2008 and 18.12.2008. The three orders are impugned in these three Writ Petitions. Shri Patrikar, the learned Counsel for the petitioner submitted that the defendants had suppressed this material document from the Court and also the petitioner and since the document in question was necessary to decide the lis between the parties, the trial court ought to have permitted the petitioner to produce the document on record and also to amend the pleadings accordingly. It is submitted on behalf of the petitioner that all the three applications were wrongly rejected by the trial Court on the ground that, the petitioner was trying to delay the trial. The learned Counsel for the petitioner then submitted that the contents of Kabuliyatnamya cha lekh would throw light on the controversy in question and if the petitioner is able to prove that a particular amount was not paid by the defendant nos. 1 and 2 to the defendant no.3 in accordance with the stipulation in the Kabuliyatnamya cha lekh, the petitioner was likely to succeed in the suit. Shri Bhattad, the learned Counsel for the respondents supported the orders passed by the trial court 4 and submitted that, the matter was remanded by this Court with a direction to decide it within a stipulated time on merits. It is submitted on behalf of the respondents that the petitioner is in possession of the property and since the order of temporary injunction is granted in favour of the petitioner, the petitioner is trying to protract the proceedings by one means or the other. The learned Counsel for the respondents then submitted that the statement made by the petitioner in the application for amendment about securing knowledge about the document on 20.10.2008 is patently false, as the petitioner had received the suit summons of Regular Civil Suit No. 63/2007 filed by the respondents in the beginning of the year 2007 and mention of Kabuliyatnamya cha lekh was made by the respondents in the said Regular Civil Suit No. 63/2007. The learned Counsel for the respondents then submitted that the trial Court has rightly observed that the Kabuliyatnamya cha lekh was not a document which could have thrown any light on the controversy in issue, and infact the said document changes the nature of the suit. It is also submitted on behalf of the respondents, that the defendant no.3 Anandrao had entered into the witness box and had categorically deposed that he had received the entire consideration from the defendant nos.1 and 2. In the backdrop of the aforesaid facts, according to the learned Counsel for the respondents, the trial Court rightly rejected the three applications filed by the petitioner. I have considered the submissions made on behalf 5 of the parties and have perused the applications as also the impugned orders. From a perusal of the same, it is clear that the petitioner became aware of the Kabuliyatnamya cha lekh some time on 18.10.2007, though the petitioner had stated in the application for permission to amend the pleadings that he had gained knowledge about the Kabuliyatnamya cha lekh on 20.10.2008. The trial Court has rightly held that the statement made on behalf of the petitioner about gaining knowledge of Kabuliyatnamya cha lekh, was incorrect. The Court then observed that there was nothing on record to show that the petitioner had made efforts to gain knowledge about the Kabuliyatnamya cha lekh at any point of time, during the pendency of the suit and there was no occasion for him to seek the said amendment at any point of time, earlier. The Trial Court then observed that, the Kabuliyatnamya cha lekh could not have thrown much light on the controversy in issue, as Anandrao, the defendant no.3 had entered the witness box and had categorically deposed that he had received the entire consideration for the sale of the property from the defendant nos. 1 and 2. The Court observed that the nature of the suit would be changed and great prejudice would be caused to the respondents/defendants, if the petitioner was permitted to amend the plaint. The trial Court observed that the amendment application was filed without any bonafide cause or reason and merely with a view to delay the trial, as the petitioner was in possession of the suit property. For similar reasons, the trial Court also held that 6 the petitioner was not entitled to seek appointment of handwriting expert and also to seek permission to file document i.e. Kabuliyatnamya cha lekh on record. The reasons recorded by the trial Court for rejecting the three applications are just and proper and the orders passed by the trial Court call for no interference in exercise of extra ordinary writ jurisdiction. The Petitions fail and are dismissed, with no order as to costs. JUDGE Rgd