1 ra85.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD REVIEW APPLICATION NO. 85 OF 2011 IN WRIT PETITION NO. 783 OF 2009 Bhatu Shankar Patel PETITIONER -VERSUS- Shantilal Rikabchand Jain and others ..RESPONDENTS ..... Mr. M.M. Bhokarikar, Advocate for applicant. Mr. R.R. Mantri, Advocate for respondent no.1. Mr. R.M. Sancheti, Advocate for respondent no.2. ..... WRIT PETITION NO. 10724 OF 2010 Shantilal Rikabchand Jain and others ..PETITIONERS -VERSUS- Bhatu Shankar Patil and another ..RESPONDENTS ..... Mr. R.R. Mantri, Advocate for petitioners. Mr. M.M. Bhokarikar, Advocate for respondent no.1. Mr. R.M. Sancheti, Advocate for respondent no.2. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 19TH APRIL, 2011. PER COURT : 1. Heard Advocates Mr. Bhokarikar for review applicant and Mr. Mantri for respondent. The order of this Court dated 21st July, 2010 is sought to be reviewed on the grounds which are stated to be ground nos. `j', `b', `c' and `d'. Perusal of that order reveals that on 26.08.2009, trial Court rejected present review applicant's 2 ra85.11 application under Order XIII Rule 2(2) of the Civil Procedure Code for production of document and cross examination of witness of defendant on the basis of the said document. Trial Court rejected it on the ground that that document was not relevant and could not have been allowed to be produced. This Court noticed that order was interlocutory in nature and refused to interfere but gave liberty to petitioner before it to challenge the impugned order of trial Court after final adjudication of the suit. 2. After that order, on 27.10.2010 the review applicant filed application Exhibit-208 before trial Court and sought leave to put six questions in relations to very same document. By order passed on very same day, trial Court granted him that leave. Other side has questioned that leave in Writ Petition no. 10724 of 2010. That Writ Petition has been filed on 22.11.2010 and this Court on 24.11.2010 issued notice in that matter and granted interim relief in terms of prayer clause `C' therein. Present review application has been filed thereafter on or about 18th January, 2011. 3. By inviting attention to the various provisions of Indian Evidence Act, 1872 and the judgments of the Hon'ble Apex Court reported at " A.I.R. 1954 S.C. 51(1)"-Habeeb Mohammad V/s State of Hyderabad and "A.I.R. 1966 S.C. 405"- Bharat Singh 3 ra85.11 and others V/s Mst. Bhagirathi, learned counsel has urged that a case for review is definitely made out. According to him, the defendants before trial Court has cheated him and his previous conduct in relation to various other transactions shows similar conduct and hence, that conduct and those documents are relevant. The support is being taken from the judgment of learned Single Judge of this Court reported at "2000(1) Bom. C.R. 421"- Vishwas Vasantrao Mugalikar V/s Jyoti D/o Murlidharrao Mugalikar, to urge that the documents reserved for production at cross examination can be used for contradiction or impeachment of witness. 4. Advocate Mr. Mantri for other side has contended that effort is only to have second hearing of Writ Petition no. 7839 of 2009 and order of this Court dated 21st July, 2010 is already acquiesced in by the review applicant. 5. After hearing respective counsel and after giving review applicant an opportunity to show how the documents attempted to be produced later on can be used, I am satisfied that the review applicant has failed to make out any case for grant thereof. The facts also show that after the order dated 21.07.2010 by this Court, on 27.10.2010 leave to ask certain questions was filed before trial 4 ra85.11 Court and only after that order at Exh. 208 came to be questioned before this Court, review is sought. This Court has already given review applicant liberty to challenge adverse order of trial Court dated 26.08.2009 after suit is finally decided. 6. In Writ Petition no. 10724 of 2010, subsequent order of trial Court dated 27.10.2010 passed upon application at Exhibit-208 is questioned by the defendants. Contention is, when production of document itself was not allowed and that document is found not relevant, permitting questions based on that document to be put is not in accordance with law. Advocate Mr. Mantri arguing for petitioner has referred to various provisions including Section 52 of the Evidence Act. He contends that trial Court has erroneously referred to provisions of Section 140 of the Indian Evidence Act and has permitted cross examination as to character of witness when such questions are not admissible or relevant. 7. Advocate Mr. Bhokarikar for respondent in said Writ Petition (original petitioner) has supported the order. He points out that the plaintiff has latter on procured certain other complaints made by third parties against the petitioner showing his similar conduct and hence, that conduct is relevant and as the question is of cheating to present respondent, the character assumes importance. 5 ra85.11 8. The impugned order dated 27.10.2010 is passed only on application at Exhibit-208. In that application, six questions sought to be put are in relation to sale transaction and that sale transaction and production of document is already rejected by trial Court on 26.08.2009. That rejection has also been maintained by this Court. It is therefore apparent that the contents of said document or effect of said document can not be allowed to be brought on record by such oral evidence. The trial Court therefore has erred in permitting those questions to be put. Unless and until, the order of this Court dated 21.07.2010 is quashed and set aside or is modified, such course is not open to trial Court. 9. In Writ Petition as also in Review Petition no. 85 of 2011 it is important to note that on 24.11.2010 this Court has granted interim stay in terms of prayer clause `C' of the Writ Petition no. 10724 of 2010. Thus operation and effect of the order dated 27.10.10 passed by the Civil Judge, Senior Division, Nandurbar has been stayed by this Court and suit is allowed to proceed. 10. Recording of evidence accordingly is already over and final arguments are now to be advanced by parties on 20th April, 2011. Advocate Mr. Mantri has produced the certified copy of order sheet 6 ra85.11 of trial Court to point out this development. 11. It is therefore apparent that the impugned order dated 27.10.2010 can not be sustained. Same is quashed and set aside. Application Exhibit-208 moved by respondent in Special Civil Suit no. 7 of 2007 is rejected. It is also to be noted that suit is already made time bound by this Court as per its order passed in A.O. Nos. 101 of 2007 and 102 of 2007, the trial Court was expected to decide the suit within six months from the date of that order. 12. In view of the discussion above, the Review Application no. 85 of 2011 is dismissed. Accordingly, Rule is made absolute in Writ Petition. No costs. 13. Needless to mention, this Court has not concluded various contentions available to parties in the matter as in earlier order liberty has been given to review applicant (original plaintiff) to challenge the order dated 26.09.2008 passed by the trial Court after final adjudication of suit. (B.P. DHARMADHIKARI) JUDGE gas/ra85.11