1 wp6026-11.sxw jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 6026 OF 2011 Pune Municipal Corporation .. Petitioner Versus The State of Maharashtra and others .. Respondent Mr. A. A. Kumbhakoni, Senior Counsel a/w Mr. R. M. Pethe for the petitioners Mr. S.D. Rairikar, AGP for the respondent no.1 State Mr. S. S. Patwardhan for Respondent no.2-B CORAM : R. M. SAVANT, J. DATED : 29th November, 2011 P.C. 1. Rule, with the consent of the parties, made returnable forthwith and heard. 2. The above petition takes exception to the order dated 17th June, 2011 by which order the application filed by the petitioner herein i.e. Pune Municipal corporation came to be rejected. 3. Shorn of unnecessary details, a few facts may be stated thus: i. The Petitioner- Pune Municipal Corporation is the original 2 wp6026-11.sxw defendant no.2 in Regular Civil Suit No. 1913 of 1979 filed in the Court of Joint Civil Judge Senior Division Pune which has been filed by the plaintiffs for permanent injunction restraining the defendants from taking possession of the suit property. The suit property is land bearing Survey No. 33A/1, 32A, 34A/2+A1 (Part), Final Plot No. 490 situated at Parvati, Taluka Haveli, Dist. Pune. After the Urban Land (Ceiling and Regulation) Act, 1976 ( for brevities sake, referred to as the ULC Act) came into force in the year 1976, the said land was declared surplus. A Revision came to be filed by the plaintiffs in the year 1990 under Section 34 of the ULC Act was dismissed. However, the Review was allowed and resultantly the declaration, in so far as the land being surplus was partly set aside and the matter was remanded back to the Competent Authority under the ULC Act for de-novo consideration of the aspect of the surplus area. In the meantime, the ULC Act came to be repealed on 26th of September, 2007. In view of the said repeal, the remand order dated 26th June, 1995 passed by the Revisional Authority was challenged by the petitioner- Corporation in Writ Petition No. 643 of 1996. The said Writ 3 wp6026-11.sxw Petition filed by the Corporation was dismissed by order dated 8th July, 2004; against which an Appeal (Civil) No. 1084 of 2006 was filed by the Petitioner in the Apex Court. The said Appeal came to be allowed and the order passed under section 34 of the ULC Act including the order passed by this Court came to be set aside and the matter was remanded back to the State Government for de novo consideration under Section 34 of the ULC Act. The said proceedings, thereafter, were adjudicated upon and an order came to be passed on 27th November, 2007,partly allowing the said Revision Application. Aggrieved by the said order dated 27th November, 2007, the Petitioner- Corporation as well as the plaintiffs filed writ petitions in this Court bearing Writ Petition Nos. 1872 of 2009 and 4555 of 2008 respectively. The said writ petitions were disposed of by an order dated 2nd of December, 2009 directing the parties that since the suit has already been filed, it would be in the said suit that the question of possession which the parties tried to assert in the said petitions would be decided. After the said writ petitions came to be disposed of, the plaintiffs, in the light of directions issued by the 4 wp6026-11.sxw Division Bench of this Court, amended the plaint so as to include averments as well as prayer Clauses 2-A and 2-B, to the effect that all the proceedings initiated against the suit property as per the provisions of the ULC Act are now abated in the light of Urban Land (Ceiling & Regulation) Repeal Act 2007. The said amendment was allowed by the trial Court by order dated 30th of March, 2010 ii. In the said suit therefore, in so for as the aspect of the ULC proceedings are concerned and whether the plaintiffs are entitled to the legal consequences arising out of the lapsing of the said Act, the said issue actually was triggered of from 30th March, 2010. The petitioner has filed the instant application Exh. 229 on 18th of April, 2011 to produce about 9 documents which, according to the petitioner, has a bearing on the aspect of possession as the said issue is now the fulcrum of the said suit. The said application was opposed by the original plaintiffs by filing a reply. The Trial Court, as indicated above, by the impugned order dated 17th June, 2011, has rejected the said application. The said application has primarily been rejected on the ground that the Petitioner- Pune Municipal Corporation has not set out 5 wp6026-11.sxw the reasons as to why the documents could not be produced earlier. 4. Heard learned counsel for the parties. 5. The learned Senior Counsel Mr. Kumbhkoni, appearing for the Petitioner-Corporation reiterates the case before the trial Court that the documents in question are crucial for the defence of the Municipal Corporation in the said suit and if the said documents are not allowed to be produced, serious prejudice would be caused to the Corporation in the said defence. Per contra it is submitted by Mr. Patwardhan, the learned counsel appearing for the original plaintiff i.e. Respondent No.2B herein, that there is not a tittle of an averment in the said application as to why the said documents could not be produced earlier especially, in view of the fact that the ULC proceedings were being agitated right from 1979. The learned counsel would contend that in terms of Order 8 Rule 1-A of the Code of Civil Procedure, unless the reasons are set out and unless the reasons are found acceptable, the Court cannot exercise its discretion by permitting the parties to produce the documents. 6. Having heard the learned Counsel for the parties, in my 6 wp6026-11.sxw view, it would be just and proper to allow the Corporation to produce the documents as indicated herein above. The issue of the lapsing of the ULC act and the impact it would have on the suit in question has actually triggered of on 30th March, 2010, when the suit came to be amended in terms of the judgment and order passed by the Division Bench of this court, wherein the Division Bench of this Court observed that issue of possession would be decided in the said suit. Though it is true that no reason has been mentioned in the application filed by the Petitioner -Corporation for production of the documents at a belated stage, in my view on the touchstone of the aforesaid facts, it would be unfair to the petitioner if the said documents are not allowed to be produced as at least prima facie, the said documents appear to be crucial for the case of the Corporation. In my view, considering the well settled dictum that procedure is only a handmaid of justice and should be utilised to further the cause of substantial justice and not to oppress it. The relief claimed vide Exh. 229 is required to be granted. In that view of the matter, the application Exh.229 is required to be allowed and the Defendant no.2 i.e. Pune Municipal Corporation is required to be permitted to produce the said documents. The impugned order dated 17th June, 2011 is therefore quashed and set aside. However, 7 wp6026-11.sxw it would also be just and proper to permit the plaintiffs to adduce rebuttal evidence in respect of the said documents. The parties, therefore, to appear before the trial Court on 12th December, 2011 when the trial Court would fix a schedule in terms of the said directions so as to permit the plaintiffs to adduce rebuttal evidence qua the documents in question. The trial court, therefore, to fix a schedule and proceed in accordance with law to decide the Suit. 7. Since the suit is of the year 1979, it would be just and proper to expedite the hearing of the suit which is accordingly expedited and is directed to be disposed of by 31st of December, 2012. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs. ( R. M. SAVANT, J. )