1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 1075 0F 2010 AND WRIT PETITION NO.: 1076 OF 2010 *** Vaijnath Biharilal Lahoti and another Versus Hanuman Mulchand Kabra and others *** Mr. Mukul Kulkarni, Advocate i/b Mr. S. S.Yadav, Advocate for the Petitioners. *** 1. Heard learned counsel Mr. Mukul Kulkarni, instructed by learned counsel Mr. Yadav who appears for the Petitioners, in these two petitions. 2. These two writ petitions have been filed by the original defendant Nos.3 and 4 in Regular Civil Suit NO.7 of 2006, pending trial before the trial Court. 3. The order passed by the learned Civil Judge, Junior Division, Pathri, Taluka Parbhani below Exhibit-86 and 88 in Regular Civil Suit No.7 of 2006 is assailed by the Petitioners in these two writ petitions. It is a common order passed by the trial Court. 4. Copy of the plaint is on record at Annexure-A in Writ Petition No.1075 of 2006. It is also Annexure-A in Writ Petition NO. 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 1076 of 2010. Since two applications are filed in only one suit and copy of the plaint is placed on record in both the writ petitions, I am only referring prayer made by the original plaintiffs in the suit. Parties for convenience, I am referring by their status in the suit. Plaintiff sought a decree for possession of Western side area to the extent of 40 Ares [20 Ares from this 40 Ares area] which situates towards Southern side of the land Gat NO.37. Needless to mention, this part of the property i.e. 20 Ares of land, is part and parcel of land Gat NO.37 situate at village Gunj Khurd Taluka Pathri. Apart from recovery of suit property decree of declaration that the sale deed executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4 dated 22nd December, 2005 registered at serial No.130 of 2005 and 131 of 2005 totaling for the area of 0 Hectare 62 Ares be declared as void ab-initio and/ or be cancelled by the appropriate decree. After these two reliefs, relief for perpetual injunction is also sought against the defendant. Suit appears to have been filed on 7th February, 2006. 5. Mr. Kulkarni for the Petitioner points out copy of the application filed by the 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. original plaintiff which is at page 61 of writ petition No.1075 of 2010. With the assistance of counsel for the Petitioner I have read this application in its entirety. Issue No.1 framed at Exhibit-54 is quoted. Plaintiff has pleaded that after framing of the issues, his affidavit in lieu of examination in chief is on record. Original documents i.e. Registration No.130 of 2005 and 131 of 2005 registered by Sub Registrar, Pathri are in custody of defendant Nos.3 and 5. Further statement is made by the plaintiff that during the evidence the trial Court did not exhibit the certified copies produced on record by the plaintiff. Grievance is raised that two certified copies were referred in the affidavit. Since these documents are not exhibited, application Exhibit-69 was filed by the plaintiff requesting the learned Judge to exhibit the documents, however, the application was rejected. Plaintiff has also made clear that he sought review of the said order but that review application also came to be rejected by the trial Court. Thus, rejection of the prayer made by the plaintiff for exhibiting the two certified copies of the sale deeds has attributed finality, is an admitted 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. position. Further important statement is made by the plaintiff in para 2 that he served notice under Order 12 Rule 2 of the Code of Civil Procedure [the Code, for short], to the defendants either to admit the certified copies of the sale deeds placed on record by the plaintiff. The defendants chose the course neither to admit the certified copies of the sale deeds not denied the same. That was the difficulty faced by the plaintiff, leading him to file the application Exhibit-88 in the trial Court Exhibit-I, copy annexed to this writ petition. In view of the issue framed, plaintiff felt it necessary to bring on record the primary evidence i.e. the two documents of sale deeds registered with the authority concerned at serial No.130 of 2005 and 131 of 2005. For that purpose, application Exhibit-88 was filed seeking direction against Respondent Nos. 3 and 4 to place on record those two documents. This application was filed in the trial Court on 3rd August, 2009. The copy of the reply filed by the present petitioner is not on record but indisputably the application was opposed. 6. The plaintiff did file another 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. application Exhibit-86 which is subject matter of writ petition NO.1076 of 2010 Annexure-I annexed to the writ petition. With the assistance of Mr. Kulkarni, I have read that application also wherein prayer is made seeking permission to reopen the evidence to prove the issue No.1. This application was filed on 3rd August, 2009. 7. Trial Court heard the parties and passed common order below Exhibit-86 and 88, and allowed the applications. Operative part of the order, passed by the trial Court, reads as follows: "1. The application at Exh.86 & 88 are allowed, subject to payment of Cost of Rs.200/- (Rupees two hundred only). 2. The plaintiff is allowed to re-call and re-examine him to the limited extent for proving the disputed sale deeds. The defendants are at liberty to cross-examine the plaintiff. 3. The defendant Nos.3 & 4 are directed to produce the original sale deeds bearing Sr. Nos.130/05 and 131/05 respectively on record. In the event of failure of defendant Nos.3 and 4 to produce the original sale deeds on record, the plaintiff is at liberty to follow 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. procedure for leading secondary evidence." This order is passed on 16th November, 2009. 8. Mr. Kulkarni made available order passed by this Court on 10th April, 2007 in Writ Petition No.2065 of 2007. Incidentally, order pointed out by learned counsel Mr. Kulkarni is passed by me. View taken by this Court in Writ Petition NO.2065 of 2007, thus, is pointed out to this Court by counsel Mr. Kulkarni. With his assistance I have read the facts carefully from para Nos.4, 5 and 6. In para 7 of the order, provision laid down under Order 7 Rule 14 is quoted. This Order 7 Rule 14 has been considered by this Court in the context of the facts brought before this Court in Writ Petition No. 2065 of 2007 along with order impugned in that writ petition. 9. In the case on hand, it is submitted on behalf of the Petitioners, that the order impugned is per-se illegal, requires to be quashed and set aside. The area of the land is also pointed out. Genealogy of the parties is pointed from copy of the plaint, on record. From the order passed by the trial Court, it appears that all eventualities and status of the suit is considered by the trial Court. Fact that two 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. certified copies of the sale deeds are produced on record by the plaintiff is referred by the learned Judge. Fact that these two sale deeds have not been exhibited inadvertently by the Court is also mentioned by the learned judge. The learned Judge, considering the facts and circumstances in the case also noticed the notice under Order 7 Rule 12 of the Code and the fact that there is no admission or denial by the present petitioners. The learned judge in so many words exercised the inherent jurisdiction to do justice among the parties. 10. The trial Court was oblivious of the fact that course open for leading secondary evidence was not adopted by the plaintiff. In view of section 61 of the Evidence Act, and procedure laid down under Order 7 of the Code, it appears that the plaintiff followed the course to bring on record the primary evidence for which he cannot be blamed. In my view, these two petitions bear no substance to invoke extraordinary jurisdiction for quashing and setting aside the orders impugned. No litigant shall suffer by the error committed by the Court. Indisputably, certified copies were on record, no exhibited by the learned Judge and 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. original documents serial No.130 of 2005 and 131 of 2005 which are primary evidence in terms of section 61 of the Indian Evidence Act allegedly were in possession of the present Petitioners. In my view, the learned Judge has passed an order, carefully considering the facts obtaining, material produced on record, and the relevant provisions of the Code. Petitions stand dismissed in limine with no order as to costs. [S.B.DESHMUKH, J.] Dated:11/02/2010. ans/1075