1 4 wp 4194.10.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srk WRIT PETITION NO.4194 OF 2010 Maruti Parshuram Shedge Aged about 75 years, Agriculturist, r/o Bharatgaon, Tal. & Dist. Satara. ..Petitioner. Versus Hanmant Vishnu Shedge Aged about 70 years, Agriculturist, R/o Bharatgaon, Tal. & Dist. Satara. ..Respondent. .... Mr. M.N.Dhamal for the Petitioner. .... CORAM : J.H.BHATIA, J. DATE : 31ST AUGUST, 2010. JUDGMENT: 1 Notice was issued to the Respondent clearly indicating that the Writ Petition may be disposed of finally at the admission stage. The learned counsel for the Petitioner has filed an affidavit of service upon the Respondent. In spite of service Respondent has not appeared. 2 4 wp 4194.10.doc 2 To state in brief: The Respondent filed Regular Civil Suit No.60 of 1998 against the present Petitioner for perpetual injunction in respect of the house situated within the limits of Gram Panchayat Bharatgaon, in the Court of Civil Judge Senior Division, Satara. About the said property the present Petitioner had also filed Regular Civil Suit No.301 of 2001 for specific performance of contract for sale of the house. Both the suits were directed to be clubbed and disposed of simultaneously by the District Court. Therefore, the recording of evidence was simultaneously proceeding in both the suits. The Petitioner had produced the original agreement for sale between the parties in Regular Civil Suit No. 60 of 1998. The document was proved and was given Exhibit No.53. The Petitioner required the said original agreement for sale for production in Regular Civil Suit No.301 of 2001 which was for specific performance of that contract. Therefore, he made an Application Exhibit 62 in Regular Civil Suit No. 60 of 1998 making a request that original agreement for sale marked Exhibit 53 be returned to him for production in Regular Civil Suit No.301 of 2001 and he sought to produce the certified true copy of Exhibit 53 for retaining on the record of Regular Civil Suit No. 60 3 4 wp 4194.10.doc of 1998. The Plaintiff filed a reply and did not object to the same. Inspite of this, the trial court by the impugned order dated 05.03.2010 rejected the request of the Petitioner holding that the Regular Civil Suit No.60 of 1998 is not yet disposed of and therefore, the provisions of Order 13 Rule 9 of the Civil Procedure Code are not applicable. 3 Relevant part of Order 13 Rule 9 of the Civil Procedure Code reads as follows: “9. Return of admitted documents.– (1) Any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be entitled to receive back the same,- (a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and (b) where the suit is one in which an appeal is allowed, when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal 4 4 wp 4194.10.doc has been preferred or, if an appeal has been preferred, when the appeal has been disposed of. [Provided that a document may be returned at any time earlier than that prescribed by this rule if the person applying therefor- (a) delivers to the proper officer for being substituted for the original,- (i) in the case of a party to the suit, a certified copy, and (ii) ............... (b) ................ (2) ................ 4 From the language of Rule 9 of Order 13 of the Civil Procedure Code, it is clear that normally the original document shall be returned to the party after the suit has been disposed of if no appeal lies against that judgment and in case appeal lies against judgment in suit, if the period to prefer an appeal has elapsed and no appeal is filed or if the appeal has been preferred it has been disposed of. However, to this normal rule there is 5 4 wp 4194.10.doc exception in the proviso to clause 1 of the Rule 9. In view of that rule, document may be returned at any time earlier than prescribed in the rule if the person applying for return of the document, produces a certified copy of the document to be substituted for the original. In the present case, even though the Suit No.60 of 1998 was pending, the present Petitioner, who has produced original document Exhibit 53, had sought to produce certified copy of that document to be placed on record of Regular Civil Suit No.60 of 1998 as the original document was required to be produced in Regular Civil Suit No.301 of 2001, which was filed by the present Petitioner for specific performance of contract based on that document. Production of that document in Regular Civil Suit No.301 of 2001 was therefore absolutely necessary. In- fact, both the suits were proceeding together and after recording the evidence in both the matters, both the suits were to be disposed of together as per the direction of the District Court. Therefore, there was no difficulty in returning the original document to the present Petitioner. Even the Respondent, who was party in both the suits, in one suit as a Plaintiff and in another suit as a Defendant, had no objection. It appears that the trial court did not understand the proviso to clause 1 of Rule 9, Order 6 4 wp 4194.10.doc 13 of the Civil Procedure Code while rejecting the Application and committed an error in rejecting that Application. Therefore, it is necessary to interfere in writ jurisdiction. 5 For the aforesaid reasons, Writ Petition is allowed. The impugned order is set aside. The trial court shall return the original document Exhibit 53 to the Petitioner/Defendant on his producing certified copy of the said document, to be placed on the record of Regular Civil Suit No.60 of 1998, so that he may produce the original document in Regular Civil Suit No.301 of 2001. In case, the original document is required for reference in Regular Civil Suit No.60 of 1998, the trial court may call the record of Regular Civil Suit No.301 of 2001 for the purpose of reference. 6 Writ Petition stands disposed of accordingly. [ J.H.BHATIA, J. ]