1 WP-3712-3718-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 3712 OF 2010 ALONG WITH WIT PETITIINO NO. 3718 OF 2010 Rajaram Vitthal Yadav, ) Age 67 years, Occ: Business ) residing at 1382, B ward, ) Mangalvar peth, Kolhapur. ).. Petitioner (Orig.Defendant) Vs. Vishnu Ganpat Pawar, ) Age: 79 years, Occu:Business ) residing at 1816, A Ward, ) Varuntirth Ves, Kolhapur. ).Respondent (orig. Plaintiff) Mr. Datta H. Pawar,Advocate, for the petitioner (in both matters) Mr. Rahul P.Walvekar,Advocate for the respondent (in both matters) CORAM: J.H.BHATIA,J. DATE : 28th September, 2010. JUDGMENT: 1. Rule. Rule made returnable forthwith in Writ Petition No.3718/2010. Heard learned Counsel for the parties. 2. The respondent filed Regular Civil Suit No.553/1999 in the Court of Civil Judge, Senior Division, Kolhapur, for eviction and possession on the ground 2 WP-3712-3718-10.sxw that the defendant/petitioner was not using the premises for the purpose for which it was leased out to him. The suit was pending for a long time. Initially, the defendant sought to file certain documents in respect of the sales tax assessment paid by him, but that application was opposed on the ground that the documents were not genuine. That application was rejected. That order is challenged in W.P. No.3712/2010. After rejection of that application on 11.9.2007, the defendant moved an application Exhibit 119 with a prayer to issue summons to the Divisional Sales Tax Officer, Kolhapur to appear with the Sales Tax record from 1.4.1997 to 31.3. 2002. That application was allowed by the trial Court on 8.10.2008. The plaintiff thereafter moved an application Exhibit 122 under Sec. 151 C.P.C. to recall the order about issuance of summons to the Sales Tax Officer on the ground that there was no pleading about this fact. The learned Judge, who succeeded the Judge who had passed the earlier order, allowed the review application and recalled the earlier order mainly on the ground that there was no pleading about the said record. Thus, the defendant was deprived of calling the Sales Tax Officer with record to prove that the property was being actually used for running the Oil Mill. That order is challenged in W.P.No.3718 of 2010. 3. It is settled position of law that only bare facts which are necessary to make out a claim or defence are requited to be pleaded in the plaint or written 3 WP-3712-3718-10.sxw statement and it is not necessary to plead evidence in the plaint or written statement. It was the case of the plaintiff that the defendant was not using the premises for the purpose for which it was let out to him and that burden was on the plaintiff. If the plaintiff leads some evidence in this respect, onus would shift on the defendant to prove that he was actually using the property. To prove that he was using the premises for the purpose for which the said premises were let out to him, he called the record from the sales Tax Office, which could establish that during the said period, Oil Mill was actually functioning at that place. It was not necessary to plead in the written statement that Sales tax assessment was made for the business done by him from the said premises. The approach of the trial Court was wrong in holding that the necessary facts were not pleaded in the written statement. If the defendant could establish by calling the record from the Sales Tax Office that he was actually using the premises, he should have been given an opportunity to prove the same. The learned Judge of the trial Court who had passed the earlier order on 8.10.2008 was correct in allowing issuance of summons. The learned successor Judge committed serious error in recalling the order passed by his predecessor. Therefore, it is necessary for this Court to interfere. 4. For the aforesaid reasons, Writ Petition No.3718/2010 is allowed. 4 WP-3712-3718-10.sxw The impugned order is set aside. The trial Court is directed to issue summons to the Sales Tax Officer as per the earlier order dated 8.10.2008. Rule made absolute accordingly. 5. In view of the fact that Writ Petition No.3718/2010 is allowed, the learned Counsel for the petitioner does not press Writ Petition No.3712/2010 and it stands disposed of accordingly. (J.H.BHATIA,J.)