1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7536 OF 2008 Baliram S/o.Damu Patil, and another PETITIONERS VERSUS The State of Maharashtra and others RESPONDENTS Mr.Vinod P. Patil, advocate for petitioners. Mr.K.B.Chaudhary, AGP for respondent no.1 to 4. Mr.N.L.Chaudhary, advocate for respondent no.5 Mr.S.H.Tripathi, advocate for respondent no.6 (CORAM : A.V.POTDAR, J.) DATE : 26/06/2009 PER COURT : 1. The petitioners/original plaintiffs in Civil Suit No.79/2005 on the file of Civil Judge, S.D.Amalner have challenged the order of rejection of their application at Exh.152 and 153, vide order dated 26/11/2000, which is the subject matter of the present writ petition. 2. It appears that the present writ petitioners have filed RCS No. 79/2005 in the Court of Civil Judge, S.D. Amalner for declaration and injunction about measurement carried out by the defendant no.3 in the suit dated 19/05/2004 and by defendant no.4 in the suit 2 dated 14/06/2005 is not binding on them and the notice issued by the defendant no.5 in the suit dated 08/08/2005 about removal of encroachment is also not binding on them and for the consequential relief of injunction. Considering these prayers about the declaration, whether they squarely covers u/s.34 of The Specific Relief Act or not is also a question of debate, but as there is no challenge to that effect, this Court is not dealing with that aspect. It appears that after the service of suit summons, the defendants appeared and contested the suit by filing their written statement. After the issues were framed, the parties were directed to lead their evidence in support of their cases. Accordingly on 29/11/2006, evidence of the petitioners/plaintiffs was over. Thereafter The evidence of the defendants was also over and the suit was listed for final arguments. At that stage, it appears that the application at Exh.152 was moved on 06/11/2008 on behalf of the petitioners plaintiffs, seeking permission to produce the documents with further prayer to exhibit those documents. Vide Exh.153, an application was moved on the same day that the documents referred in the evidence of witness no.3 for plaintiffs Mr.Shamrao Raoji Patil, whose evidence was recorded through the Court Commissioner, and the documents referred in his examination in chief which were produced alongwith the list at Exh. 64 at Sr.No.1 & 2, and the signature on those documents was identified by the witness, as he has given the acknowledgement about the receipt of this document, in the Office of Gram Panchayat to exhibit these documents. Both these applications were rejected by separate orders dated 26/11/2008, which are impugned under this 3 writ petition. 3. Before considering the submissions across the bar advanced by learned advocate appearing for petitioners followed by the arguments of respondents, certain provisions under the CPC about the production of documents require to be seriously considered. Order 7 Rule 14 of The CPC speaks for the documents to be produced by the plaintiff alongwith the plaint on which the plaintiff is relying. It is made very clear in the said rule that the plaintiff to produce all the documents on which he is relying by filing separate list alongwith the suit and to produce the documents listed in the said list at the stage of institution of the suit. It is further made clear in the said rule that in case the documents on which the plaintiff is relying, but those documents are not in custody of the plaintiff at the time of institution of the suit, then the plaintiff to make a statement to that effect in his pleadings that even though the plaintiff is relying on the said documents, but at the time of institution of the suit, those documents are not in his custody but are in the custody of a particular person to whom he will summon during the trial to produce those documents for the adjudication of the subject matter of the suit. Even though it is alleged in the application at Exh.152 that the relevant documents were in the custody of defendant no.3, hence they were not produced, but to that effect there is no statement in the pleadings submitted in the Court of Law by the plaintiff. Apart from it, this application was moved on 06/11/2008 when the evidence of plaintiff was over on 29/11/2006. It is very 4 surprising to note that if the plaintiffs petitioners want to rely on these document in support of his case, then why no summons was taken on the 3rd defendant to produce these documents before closure of his evidence. Application at Exh.152 is totally silent on this point. Again on perusal of the documents listed, the endorsements on those documents shows that the certified copies of these documents were obtained on 09/08/2007. Since then why these documents were not tendered till 06/11/2008. There is absolutely no explanation about this in Exh.152. At this juncture again Court require to consider the provisions under Order 13 Rule 1 of CPC, which speaks about the procedure as to when and how the documents to be produced on which the parties are relying to establish their case. On clear perusal of Order 13 Rule 3(b), it speaks about the exception to the general rule about the document to be produced alongwith the pleadings either under Order 7 Rule 14 or Order 8 Rule 1 of CPC as those documents to be referred in the cross examination of the witnesses examined during the trial. Application at Exh.152 is not an exception which can be covered under Order 13 Rule 3(b) of CPC. In the premise, if the application itself is without any foundation of the legal procedure required to be followed and if rejected for whatsoever reasons given by the Trial Court, I do not find any fault with the rejection of the application at Exh.152 at the hands of Trial Court. 4. Now coming to the rejection of the application at Exh.153. Application at Exh.153 was moved on the part of the petitioners to 5 exhibit the documents which were referred in the evidence of P.W.No. 3 Shamrao Raoji Patil, whose evidence is recorded through the Court Commissioner. It is the case of the petitioners plaintiffs that they have applied for the construction permission of the suit property in question alongwith the map of the proposed construction. On receipt of the application alongwith the map in the office of respondent no.5, the Gramsevak Shamrao Raoji Patil gave an acknowledgement of the receipt of this document in his office, which receipts were obtained on the documents at Sr.No.1 and 2 alongwith Exh.64 which were not exhibited by the Court Commissioner when he recorded the evidence of Shamrao Raoji Patil. Here two fold consideration required as to whether the documents required to be exhibited or not. First, according to the submissions advanced across the bar, it was nowhere transpire from the evidence of petitioners that any such application was moved before the defendant no.5 of which an acknowledgment was given by the Gramsevak of the defendant no.5. That is the foundation to corroborate the evidence of witness no.3 to be recorded. In absence of that foundation, there is no evidential value of the evidence given by witness no.3 in the eye of law. The second aspect, this acknowledgement was allegedly given in the year 1980. When the witness himself have admitted that he retired from the service of the 5 th respondent, who is also 5 th defendant in the original suit in the year 1975-76, then naturally the question arose that one who retired from the services or ceased to be in the services of the 5th respondent Gram Panchayat, then how he can give acknowledgement about the documents received in the office of Gram 6 Panchayat in the year 1980. If the answer is negatory, then if the documents which were referred to this witness was not exhibited by the Trial Court, I do not find any fault if those documents are not exhibited by the Trial Court. 5. In the premise, on careful perusal of the order passed below Exh.152 and 153, the impugned order under challenge by way of this writ petition find no fault at the hands of Lower Court which require no interference at the hands of this Court. Hence writ petition is to be dismissed and accordingly dismissed in limine with no order as to costs. As the main petition is dismissed, interim orders stands automatically vacated. (A.V.POTDAR, J.) khs/wp7536-08