1 wp6126-11 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 6126/2011 (M/S BACHHARAJ FACTORIES PVT. LTD. VERSUS PRAMSUKHDASJI J. BHATTAD (DEAD) THR. L.R’S 1. MADANMOHAN P. MOONA & OTHERS) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.V. Sirpurkar, counsel for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : DECEMBER 14 , 2011 . By this petition, the petitioner impugns an order passed by the Civil Judge (Junior Division), Shegaon on 22.09.2011 rejecting an application filed by the petitioner for grant of permission to the petitioner to adduce evidence on application at Exhibit 321. The petitioner is the original defendant no.1. A suit was filed by the plaintiff for possession and mesne profits. The plaintiff also filed an application for grant of temporary injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure. The trial Court granted status quo on the said application. Later on, on 16.07.2009, the counsel for the plaintiff did not press the application for grant of temporary injunction and the application was disposed of. The petitioner then filed an application under Section 95 of the Code of Civil Procedure for grant of compensation of Rs.50,000/- (Rupees Fifty Thousand). The plaintiff moved an application seeking dismissal of the application filed by the petitioner under Section 95 of the Code of Civil Procedure. The trial Court disposed of the application filed by the 2 wp6126-11 plaintiff and kept the application filed by the petitioner under Section 95 of the Code of Civil Procedure, in abeyance. While passing the order dated 26.11.2009, the trial Court observed that the petitioner was free to file a separate Miscellaneous Civil Application under Section 95 of the Code of Civil Procedure for grant of compensation or get the application decided at the time of decision of the suit on merits. It is not in dispute that the plaintiff and the petitioner-defendant no.1 tendered their evidence and also closed their sides. After the evidence of the defendant no.1- petitioner was closed and the matter was at the stage of final arguments, the petitioner filed an application for grant of permission to adduce evidence on the application at Exhibit 321, filed under Section 95 of the Code of Civil Procedure for grant of compensation. The trial Court, however, rejected the application filed by the petitioner by the impugned order dated 22.09.2011. The trial Court has judiciously passed the order dated 22.09.2011 and the same calls for no interference in exercise of the writ jurisdiction. It is necessary to note that by an order dated 26.11.2009, the trial Court had granted liberty to the petitioner to file separate miscellaneous judicial proceedings for claiming compensation under Section 95 of the Code of Civil Procedure or to tender evidence on the same so that the said application could have been decided at the time of final hearing of the suit. The petitioner failed to file the miscellaneous judicial proceedings. The petitioner also failed to tender any evidence whatsoever on the application under Section 95 of the Code of Civil Procedure while 3 wp6126-11 tendering his evidence and before closing his side. The petitioner has surely missed the bus and he could not be permitted to tender evidence on the application under Section 95 of the Code of Civil Procedure when the matter is fixed for arguments and the petitioner has already closed his evidence. A new procedure cannot be laid down for permitting the petitioner to tender evidence afresh on the application under Section 95 of the Code of Civil Procedure, specially when the petitioner has forgotten to tender evidence in regard to the other relief while tendering the evidence in the suit. The impugned order passed by the trial Court is just and proper and cannot be faulted with. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE