1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5334 OF 2007 Shantaram Chiman Gurav .. Petitioner Versus Smt.Annapurna Dattatray Joshi & Ors. .. Respondents Mr.P.S.Dani for petitioner Mr.R.G.Ketkar with R.M.Pethe for petitioner Nos. 1 to 6. CORAM : S.C.DHARMADHIKARI, J. DATE : 26th February 2008 P.C. . Petitioner is original plaintiff in R.C.S.No.11 of 2002. This suit is filed by the petitioner original plaintiff for a declaration that the documents described in para 1 and 10 of the plaint dated 14th June 1983, although styled as a conveyance is in effect an agreement for 2 sale of the suit property between the petitioner original plaintiff and the original defendant Nos. 1, 5 and 6. Therefore, the said defendants are obliged to specifically perform their obligations under this agreement and the trial court be pleased to order and direct accordingly. 2. During the course of the proceedings, evidence was led by the petitioner original plaintiff and he was cross examined. Thereafter, an application was filed (Exh.35). That application prayed that the said document of 14th June 1983 is on record of the trial court but the same has not been exhibited because there was an objection raised by the original defendants to it being marked as exhibit. The objection is that this document is not registered. Therefore, the petitioner - plaintiff prayed that earlier there was a suit being R.C.S.Suit No.27 of 1995 in which this document was produced and it was marked as Exh.15. Similarly, in R.C.S.No.89 of 3 1987 between the same parties, so also a civil appeal being Civil Appeal No.55 of 1989, again between the same parties, the lower appellate court has referred to this document and has styled the same as an agreement for sale. After referring to the contents of this document, petitioner plaintiff prayed that the Regular Civil Suit No.47 of 1999, once again between the same parties has been dismissed relying upon this document. For all these reasons, he prayed that this document be marked as exhibit. 3. The application was also objected to by the original defendants and they relied upon section 34 of the Bombay Stamp Act and contended that merely because this document has been marked as exhibit in some other proceedings that by itself will not entitle the plaintiff to urge that the same be marked as exhibit in this suit. 4. Accepting this objection of the original 4 defendants, the trial court proceeded to reject the subject application of the plaintiff. 5. Mr.Dani learned Counsel appearing for the petitioner has contended that though the impugned order is an interlocutory order, considering the nature of the controversy, it is vital and necessary for the petitioner original plaintiff to have this document exhibited and marked as such. He submits that it may be true that the evidence of the plaintiff is closed but such an application could have always been filed. The request is purely innocuous inasmuch as one document which is referred to by parties during the course of their deposition should be marked as exhibit. Merely because the same has been marked as exhibit there is no question of any argument on the contents thereof being concluded. Subject to argument on the contents being kept open, all that is requested is that the trial court should mark this document as exhibit in 5 R.C.S.No.11 of 2002 more so, when the document has been marked as such in earlier proceedings. 6. Mr.Ketkar, learned Counsel for respondents original defendant has taken me through earlier proceedings. He has contended that the observations of the trial court in earlier proceedings which is relied upon cannot be read in isolation but will have to be read in the context of the entire controversy in that suit. He submits that all through out the case in earlier proceedings is that the petitioner has become owner of the property and the document in question is sale deed. In such circumstances that could not have been exhibited unless compliance is made with the relevant provisions of the Stamp Act. The document, therefore, should not be marked as exhibit and the interlocutory order be, therefore, not interfered with. He has also invited my attention to the pleas raised in the present proceedings and a 6 copy of the subject document is also tendered by Mr.Ketkar to show that its contents have been relied upon as if the same is a sale deed. 7. While it is true that this Court is reluctant to interfere with interlocutory orders as every interlocutory order does not finally conclude the merits of the controversy so also does not put an end to the rights of the parties to the litigation. However, there are certain interlocutory orders which require interference only for the purpose of smoothening and expediting the trial before the court below. These are some aspects which need to be considered but ultimately the decision depends upon facts and circumstances of each case. Such of the interlocutory orders which prejudice the rights of the litigants, if allowed to remain on record, the trial is not likely to be over properly. In other words, such of the interlocutory orders which decide the matters 7 which go to the root of the controversy are allowed to remain on record although unsustainable, cause prejudice to the parties. Later on remands and re-trials become necessary only because the interlocutory orders are not interfered with. The instant case is one such example. The suit is for specific performance. What has been contended by petitioner original plaintiff is that the subject document is an agreement for sale whereas the contesting defendants urged that the same has been styled as sale deed. It is true that this document is subject matter of earlier proceedings. My attention is invited to the suit filed by the petitioner against defendants on the basis that they are owners and he being tenant restraining him from obstructing the work of repairs. 8. Further my attention is also invited to another proceeding. It is no doubt true that the petitioner in those matters has urged that the 8 document is a sale deed. However it is equally true that the finding in Civil Appeal No.55 of 1989, which was directed against the judgement and decree dated 14th February 1989 in R.C.S. No.89 of 1987 is that the document in question is not a sale deed but it is an Agreement for sale and benefit of section 53A was given to the petitioner who was defendant in that suit. 9. Once the document has been placed on record of the trial court and the petitioner plaintiff has been cross examined so also the controversy being whether the petitioner plaintiff is entitled to specific performance of this document on the basis that is an agreement for sale or not, then, subject to all arguments about the contents being kept open, this document could have been marked as exhibit. Merely marking the same as exhibit does not mean that all arguments on contents thereof are concluded. There is substance in the contention of Mr.Dani 9 that no prejudice would be caused to the defendants by merely marking the same as exhibit. The stage at which the application was made is not such that marking of document as exhibit would conclude the controversy in the suit. with regard to the nature of the transaction evidenced by this document. In such circumstances, keeping open all pleas with regard to the contents of the documents of both sides, the trial court should have marked the said document as exhibit in R.C.S.No.11 of 2002. Accordingly, the impugned order refusing to mark the said document is patently unsustainable and suffers from an error apparent in the manner indicated above. The trial court is yet to finally decide the issue in the suit. Parties have yet to address the trial court inasmuch as the stage of argument has not reached. I am informed that only the plaintiff has concluded his evidence. It is for the defendant to decide as to whether to step into the box or proceed with the trial. In such 10 circumstances, there is no prejudice caused to parties. 10. The order under challenge is, therefore, quashed and set aside. It is directed that the document dated 14th June 1983 which has been earlier marked as an Article shall now be exhibited by the trial court in the record and marked as Exhibit in the suit. However, marking of the said document as exhibit does not in any manner mean that this Court has concluded the controversy or has accepted the case of petitioner that the same is an agreement for sale. Equally, it is not as if this Court has expressed any opinion that the said document can be held to be a sale deed. All such pleas are kept open and subject to said pleas being raised and considered the trial court to mark the said document as exhibit. Writ petition is allowed in these terms with no orders as to costs. 11 11. The apprehension of Mr.Ketkar that this document being marked as exhibit now, the petitioner would delay the trial by requesting the court that he may be allowed to prove its contents by leading further evidence, has no basis. It is not for me to prejudge this aspect. No such application has been made and if made the same will be definitely objected to by the contesting defendants and all such objections shall be considered by the trial court without being influenced by this order or the document being marked as exhibit. In view of disposal of this petition C.A. if any does not survive and the same is dismissed as such. (S.C.Dharmadhikari, J)