1 W.P. No. 3896.1991 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 3896 OF 1991 1] Smt. Roshanbi Mard Abdul Kadar, Age 55 years, Occu. Household, 2] Shaikh Abdul Ajiz Abdul Kadar, Age 40 years, Occu. Service, 3] Sk. Mohd. Ibrahim Abdul Kadar, Age 38 years, Occu. Labourer 4] Yasinbi Mard Gulam Dastagir, Age 34 yersa, Occu. Household, 5] Jarina Abdul Kadar, Age 30 yrs, Occu. Household, 6] Shachin Mard Shaikh Abbar, Age 26 yeras, Occu. Household, 7] Sk.Mohd. Iqbal Abdul Kadar, Age 24 years, Occu. Hawkar, (Sk. Mohd. Iqbal Abdul Kadar is the General Power of Attorney Holder of petitioner No. 1 to 6) All r/oi Mochi Galli, Ahmednagar ...PETITIONERS VERSUS Ashok Bansilal Bore, Age 42 years, Occu. Trader, r/o 7236, Mochin Galli, Ahmednagar, Dist. Ahmednagar ..RESPONDENT 2 W.P. No. 3896.1991 ... Mr.V.S. Bedre, Advocate for Petitioner Mr. S.S. Bora Advocate h/f Mr. S.S. Bora, Advocate for respondent. CORAM :- S.S. SHINDE, J. JUDGEMENT RESERVED ON : 6th DECEMBER, 2010 JUDGMENT PRONOUNCED ON : 9th DECEMBER,2010 JUDGMENT: This Writ Petition takes exception to the Judgment and order passed by the 3rd Additional District Judge, Ahmednagar in Civil Revision No. 2 of 1991 dated 12th November, 1991, confirming the decision and order dated 15th December, 1990 passed by the 2nd Joint Civil Judge, Junior Division, Ahmednagar in Regular Civil Suit No. 166 of 1989 below Exh. 69. The brief facts of the case are as under :- The petitioners/plaintiffs are the owners of the house property bearing CTS No. 2756/1 and M.C. No. 7236, situated at Mochi Galli, in Ahmednagar city. In the said property the opponent/respondent is in possession of shop premises on the ground floor as a tenant at the rate of Rs. 200/- per month. The 3 W.P. No. 3896.1991 tenancy month commences on 1st day of each English calender month and ends on the last day of each month. It is contended that the respondent is in arrears of the rent from 1st October, 1987 and thereby became the willful defaulter. The plaintiffs required the suit premises for their personal use and occupation and the conduct of the respondent is annoyance and nuisance. Therefore, plaintiffs have filed suit for recovery of arrears of rent and possession. In the said suit, the defendant appeared before the trial court and filed his written statement and resisted the claims and allegations made by the plaintiff and contended that the plaintiffs are not entitled to seek any relief from the Court as such the need of the land-lord is not genuine and bonafide. It is the case of the petitioners that suit was filed for hearing and the plaintiffs started to led the evidence. The petitioners have filed list of witnesses on 20th October, 1990. However, subsequently, the plaintiffs have got certain documents and therefore, the plaintiffs have filed those documents with application at Exh. 67. It is the case of the petitioners that in view of the subsequent changes 4 W.P. No. 3896.1991 they have filed another list of witnesses. The respondents resisted both the applications and contended that as the plaintiffs have filed list of witnesses, and therefore, the plaintiffs are not entitled to examine other witnesses. 2. Upon hearing to the respective counsel for the parties, the trial Court allowed the application of the production of documents along-with list Exh. 68. However, the trial Court rejected the application of the plaintiffs at Exh. 69, requesting to issue witness summons. Being aggrieved by the order rejecting the application at Exh. 69, the petitioners herein preferred a revision before the District Court, Ahmednagar, as per the provisions of Section 29 of the Bombay Rent Act, and challenged the legality and correctness of the order passed by the Trial Court. After hearing the matter on merits the learned lower appellate Court dismissed the revision filed by the petitioners herein. Hence this Writ Petition. 3. The learned Counsel appearing for the 5 W.P. No. 3896.1991 petitioners submitted that while dismissing the revision,. The lower appellate Court has not followed the substantial law and procedure which resulted into manifest injustice to the petitioners. The lower appellate Court erred in holding that the revision filed by the petitioners is not maintainable, as such this is the procedural order. However, the lower appellate Court ought to have held that as per Section 29 of the Bombay Rent Act the revision lies to District Court. It is further submitted that no prejudice or injustice will be caused to the respondents, if the witness summons is issued to the witnesses whose names are mentioned in the application at Exh. 69. The learned Counsel further submitted that the plaintiffs have got certified copies and certain documents at subsequent stage, and therefore, the names of the witnesses were not given at the earlier stage. It is further submitted that the Courts below have not considered the provisions of Order 18 Rule 2(4) of the Civil Procedure Code. The plaintiffs have right to get the documents proved as per the procedure of law, by examining the additional witnesses. The plaintiffs did not want to fill up the lacuna in their evidence. On the contrary, the respondent is having 6 W.P. No. 3896.1991 sufficient opportunity to lead the evidence to support his case. The lower appellate Court erred in holding that the petitioners can produce the certified copies from the Municipal Council and Maharashtra State Electricity Board. However, the lower appellate Court ought to have held that mere production of the documents is not sufficient to prove the case of the petitioners, and therefore, full opportunity should have been given to the petitioners to lead the evidence. Therefore, counsel for the petitioners would submit that this Writ Petition deserves to be allowed. 4. On the other hand counsel appearing for the respondent invited my attention to the reasons recorded by the trial Court, while rejecting the application below Exh. 69 and submitted that the trial Court has given cogent reasons for rejecting the application at Exh. 69, and lower appellate Court has rightly rejected the revision, since the revision was not maintainable. The learned Counsel invited my attention to the reasons recorded in the impugned Judgment and order and submitted that this Writ Petition deserves to be dismissed. 7 W.P. No. 3896.1991 5. Heard learned Counsel appearing for the parties, perused the grounds taken in the Writ Petition and impugned Judgment and order of the trial Court and also the lower appellate Court. The 2nd Joint Civil Judge, Junior Division, Ahmednagar has dealt with the contentions of the plaintiffs in detail. So far the plaintiffs contention that their sister’s daughters are staying with the plaintiff and taking education in the school namely Chand Sultana Anglo Urdu High school, Ahmednagar, and to prove the fact that their sister daughters are staying with the plaintiffs and taking education in the said school, the plaintiffs wanted to examine Shri Y.G. Sayyad, Head Master of Chand Sultana Anglo Urdu High school, Ahmednagar. The Court held that, the plaintiff had knowledge of the said fact that his sister’s daughters are studying in the said school, even at the time of of filing the suit and also at the stage of framing the issues. Therefore, the trial Court held that since beginning plaintiffs have knowledge that their sister’s daughters are residing with him and taking education in the above mentioned school, and therefore, if the petitioners wanted to examine Shri Y.G. Sayyad, Head Master of the said school, his name 8 W.P. No. 3896.1991 should have included in the list of witness, in the first instance itself. The trial Court further observed that the another prayer of the plaintiffs to issue summons to the Chief Officer, Municipal Council, Ahmednagar is concerned, the plaintiffs wanted to fill-up the lacuna from the witnesses, by asking to examine the Chief Officer, Municipal Council, Ahmednagar, and therefore, the trial Court rejected the prayer for issuing summons to the Chief Officer, Municipal Council, Ahmednagar. The third prayer was to issue summons to the Chief Officer, Maharashtra State Electricity Board, Ahmednagar, the trial Court has recorded that the defendant Advocate has admitted that his brothers are using the said shop for the business purpose. Therefore, the trial Court has also rejected the 3rd prayer to issue summons to the Chief Officer, Maharashtra State Electricity Board, Ahmednagar. 6. In revision the 3rd Additional District Judge, Ahmednagar referring to the Judgment of the Division Bench of this Court in a case of Sukhdeo Prasad V/s. Ram Bhujarath, reported in 1983 Maharashtra Law Journal,9” and held that the mere 9 W.P. No. 3896.1991 interlocutory or procedural orders are not the orders which can be taken and challenged under Section 29(3) of the Bombay Rent Act,and, therefore,the revision is not maintainable. 7. It is admitted position that the application at Exh. 69 which was filed by the petitioners for issuing summons to the three witnesses i.e. Head Master of the Chand Sultana Anglo Urdu High school, Ahmednagar, Chief Officer, Municipal Council, Ahmednagar and Chief Officer, Maharashtra State Electricity Board, Ahmednagar was at belated stage, and the said application was not file within 15 days from the settlement of the issues. The said application was filed by the petitioners on the day when the cross-examination of the plaintiff was in progress. The provisions of Order 16 Rule 1 to 3 of Civil Procedure Code reads thus :- “1.List of witnesses and summons to witness – (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce 10 W.P. No. 3896.1991 documents and obtain summonses to such persons for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit a party call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.” 8. On perusal of Rule 1 of Order XVI would make it clear that on or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either or give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. 9. In the instant case, the trial Court has 11 W.P. No. 3896.1991 rightly concluded that the it was withing the knowlede of the plaintiff that the daughters of their sister are studying in Chand Sultana Anglo Urdu High school, Ahmednagar,since from beginning. Therefore, the petitioners should have included the name of the Head master of the said school in the list of witness at the proper stage. The another prayer of the prayers to issue summons witnesses to the Chief Officer, Municipal Council, Ahmednagar is concerned the trial Court has rightly concluded that the said prayer is made after thought to fill-up the lacuna in the evidence led by the petitioners / plaintiffs. The third prayer to issue summons to the Chief Officer, Maharashtra State Electricity Board, Ahmednagar is concerned, in written statement the defendant has stated that his brother collecting goods in one shop, relying on the said statement the plaintiff has contended that said shop is having electric meter and the same is used for the business purpose. In the cross examination of the plaintiff no suggestion put to him that defendants brother using the shop for godown purpose. On the contrary, the defendants Advocate admitted that the defendant brothers are using the the said shop for the business purpose. 12 W.P. No. 3896.1991 Therefore, the trial Court held that there is no use to issue summons to witnesses. 10. Therefore, in my opinion, the trial Court after taking into consideration every aspect of the matter has rejected the application below Exh. 69. The lower appellate Court has rightly rejected the revision relying on the Judgment of the Division Bench of this Court taking a view that the impugned order is interlocutory and procedural order and hence revision is not maintainable. 11. Taking over all view of the matter, in my opinion the Courts below have taken correct and possible view and no interference is warranted. However, since the production of the document is allowed by the Court, it is open for the petitioner to rely upon the said documents at the time of final hearing of the suit. Therefore, in my opinion, the petition is devoid of any merits and same is dismissed. Rule stand discharged. Interim relief if any stand vacated. In view of the dismissal of the Writ 13 W.P. No. 3896.1991 Petition, Civil Application, if any stands disposed of accordingly. [S.S. SHINDE, J] SDM*3896.91