1 REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 *** Purushottam S/o Shankar Ghodgaonkar, Age: 81 years, Occu.: Agri. & Business, R/o "Kadambari Building" Chopda, Tal. Chopda, Dist. Jalgaon. ... APPLICANT VERSUS 1. Gajanan S/o Shankar Ghodgaonkar, Age: 76 years, Occ.: Retired/ Pensioner, R/o 11-B, Pandurang Kripa Building, Patil Compound, Almeda Vakil Road, Chandanwadi, Thane (West). 2. Sunil S/o Purushottam Ghodgaonkar, Age: 35 years, Occu.: Agri. & Business, R/o as above. 3. Sudhir S/o Purushottam Ghodgaonkar, Age 35 years, Occ.: Agri. & Business, R/o as above. 4. Sanjay S/o Purushottam Ghodgaonkar, Age: 29 years, Occ.: Agri. & Business, r/o as above. 5. Vinayak S/o Purshottam Ghodgaonkar, Age: 66 years, Occu.: Retired, R/o N-53/VG/08/02, Patil Nagar, Swami Samarth Chowk, Post: CIDCO, 5th Scheme, Nasik. 6. Suresh Bhalchandra Deshpande, Age: 64 years, Occu.: Retired, R/o Bhide Chawl, Doodh Naka, Opp. Diwan Bhevri, Kalyan, Dist. Thane. 2 REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 7. Vishwanath Bhalachandra Deshpande, Age: 62 years, Occ.: Retired, R/o 42-A, Anand Sane Guruji Nagar, Post: Bhusawal, Dist. Jalgaon. 8. Smt. Malti Shriram Koranne, Age: 60 years, Occu.: Household, R/o Ring Road, Subhashwadi, Block No.8, Near JDCC Bank, Post: Jalgaon, Dist. Jalgaon. 9. Smt. Madhuri Moreshwar Dandvate, Age: 58 years, Occu.: Household, R/o 221 Shani Peth, Post: Jalgaon, Dist. Jalgaon. 10. Sow. Rekha Ramesh Pol, Age: 54 years, Occu.: Household, "Swapnarekha", Vinay LIC Colony, Gangapur Road, Nasik. 11.Smt. Indira Pandharinath Kalamkar, (Died during pendency of suit) as she was ex-parte no heirs are brought on record.) 12. Smt. Sindhu Ganpatrao Kulkarni, (Deceased Through her LRs.) 12A Ramrao Ganpat Kulkarni, Age: 62 years, Occu.: Service, R/o House No.290, Vasant Housing Society, Shivajinagar No.1, HUDCO Manmad, Dist. Nasik. 12B Vijay Ganpat Kulkarni, Age: 57 years, Occ.: Service, R/o Maheshnagar, Near Water Tank, Bhusawal, Dist. Jalgaon. 12C Prakash Ganpat Kulkarni, Age: 52 years, Occ.: Service, R/o House No.290, Vasant Housing Society, Shivajinagar, No.1, HUDCO Manmad, Dist. Nasik. 3 REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 12D Sau. Megha Kishor Kulkarni, Age: 47 years, Occu. Household, R/o Nasik Road, Railway Colony, Railway Quarters, No.R.B.I. D.S., 150 Sinnar Phata, Nasik Road, Nasik. ... RESPONDENTS. *** Mr. R. R. Mantri, Advocate for the Applicant. Mr. M. M. Joshi, Advocate for Respondent No.1. Mr. P. N. Kutti, Advocate for Respondent No.2. *** CORAM: B. P. DHARMADHIKARI, J. DATED: 9th FEBRUARY, 2011. ORAL JUDGMENT: 1. Heard finally Advocate Mr. Mantri for Review Applicant and Advocate Mr. Joshi for original petitioner with consent, by issuing Rule and making it returnable forthwith. The review applicant was respondent No.1 in Writ Petition No.5632 of 2005 which came to be allowed by this Court vide its order dated 16th/ 17th June, 2000. 2, Short contention of Advocate Mr. Mantri is, on said dates, petition was not ready and in unfortunate circumstance he (Advocate Mantri) was required to withdraw his Vakalatnama for Respondent No.1. In absence of any assistance from Respondent No.1, the earlier order, passed by this Court in Writ Petition No.869 of 1997, on 2nd April, 1998 4 REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 could not be pointed out and in absence of its knowledge, this Court has proceeded as if controversy before it was to be addressed in the light of provisions of Order XIII Rule 3 C.P.Code. He states that, during cross examination of Respondent No.1 in Writ Petition (defendant No.1) certain documents were sought to be produced for confrontation and at that stage Writ Petition No. 869 of 1997 was required to be filed by said Respondent No.1. This Court found that such production of documents for cross examination was not within four corners of law and hence writ petition was allowed. But, then, plaintiff was given liberty to apply for permission to produce those documents along with list as if the same were his documents. In the light of that liberty application at Exhibit-94 specifically mentioning provisions of Order XIII Rule 1 C.P.Code came to be filed and that application was rejected by Civil Judge, Junior Division on 22nd March, 2005. Said rejection was then questioned in Writ Petition No. 5632 of 2005. He reiterates that as these developments could not be pointed out and in absence 5 REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 of any counsel for review applicant (respondent No. 1/ defendant No.1) the Court applied its mind as if provisions of Order XIII Rule 3 C.P.Code were applicable and hence application at Exhibit-94 has been allowed. He contends that application at Exhibit-94 could not have been considered in the background of Order XIII Rule 3 C.P.Code. 3. Advocate Shri Joshi, on the other hand, states that documents which are in the shape of correspondence between two brothers fighting out the suit for partition were reserved for use in cross examination and effort was accordingly made to confront review applicant with those documents. The trial Court permitted such confrontation and then matter was filed before this Court by the review applicant. That writ petition No.869 of 1997 was allowed on 2nd April, 1998 but liberty was given to original petitioner/ plaintiff to file fresh application seeking production of documents. That application was rejected by taking too technical view of the matter and hence this Court has, on 16th/ 17th June, 2009 considered all provisions in C.P.Code relating to production of documents and 6 REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 found it proper to grant permission. Learned counsel states that the non-consideration of order dated 2nd April, 1998 does not in any way materially affect that consideration. 4. Perusal of orders sought to be recalled, passed on 16th/17th June, 2009 by this Court reveals that this Court has given emphasis on scheme of Order XIII Rule 3 which permits production of documents for cross examination of witness or then for refreshing his memory. It is in the light of this application of mind that application at Exhibit-94 has been allowed. The order dated 2nd April, 1998 notices a judgment of Jammu & Kashmir High Court reported in AIR 1989 NOC 183 [Union of India and another V/s B.D.Sharma], makes a distinction between party and witness and holds that provisions of Order XIII Rule 3 C.P.Code could not save the situation for petitioner/ plaintiff. The correctness of said order and observations therein cannot be debated and are not open, at this stage. The order has attained finality and hence on 16th/ 17th June, 2009 the petitioner/ plaintiff could not have fallen back on provisions of Order XIII Rule 3 C.P.Code. To that 7 REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 effect, it is apparent that the application of mind by this Court on said date is vitiated. The judgment delivered in Writ Petition No. 5632 of 2005 does not consider the impact of earlier judgment dated 2nd April, 1998 delivered by this Court in Writ Petition No.869 of 1997 and, therefore, there is error apparent on face of record. 5. In view of this, it is necessary to find out whether the judgment delivered in Writ Petition No. 5632 of 2005 needs a total recall. Hence, I have heard respective counsel further. It has been pointed out to this Court that Exhibit-94 filed by petitioner in Writ Petition No.5632 of 2005 was allowed earlier by trial Court by one word i.e. by unreasoned order. The Respondent No.1 in the writ petition, therefore, approached this Court in Writ Petition No.1325 of 2003 and on 10th February,2005 this Court, after hearing respective counsel directed trial Court to reconsider that application Exhibit-94. Accordingly, application at Exhibit-94 has been re-heard and was rejected on 22nd March, 2005. The trial Court found that, application at Exhibit-94 does not make out any case for production 8 REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 of documents belatedly. This consideration is under Order XIII Rule 1 C.P.Code and could not be considered by this Court as such earlier as its attention was never invited to earlier judgment dated 2nd April, 1998 by the parties. 6. The record shows that documents were reserved by Petitioner/ plaintiff for confronting Respondent No.1/ defendant and those documents basically are private documents like correspondence between two brothers. Suit is for partition and he, therefore, wanted to confront defendant No.1 with those documents. The admissibility or such use of a specific document is not the question, here and at this stage. That can be gone into by trial Court as and when a particular document is used by petitioner/ plaintiff. But, then, he failed in that effort of confronation on 2nd April, 1998 when this Court allowed writ petition No.869 of 1997. The Court has given liberty to the petitioner/ plaintiff to file fresh application and then application at Exhibit-94 came to be filed. Application at Exhibit-94 does not make out reference in detail to all these developments but it only mentions writ 9 REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 petition No.867 of 1997 and is expressly under Order XIII Rule 1 C.P.Code. When this Court permitted Petitioner/ plaintiff to file fresh application seeking leave to produce those documents, as his own documents, mere reference to writ petition No.869 of 1997 was not sufficient. The trial Court, therefore, has, in this background, found on 22nd March, 1995 that the documents sought to be produced were regarding joint family business and agricultural lands and no explanation for late production of those documents under Order XIII Rule 1 C.P.Code was given. When Exhibit-94 is looked into said reason per-se cannot be said to be incorrect. 7. However, I find that the application Exhibit-94 also makes reference to Writ Petition No.869 of 1997 and thereby impliedly to the purpose for which the documents were reserved by petitioner/ plaintiff. It therefore also invites attention to liberty granted by this Court to approach under Order XIII Rule 1 C.P.Code. The decision to reserve those documents for confronting during cross examination is obviously not taken by the plaintiff in-person 10 REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 but it is a decision taken by him as per legal advice received by him. I, therefore, find that in such situation petitioner/ plaintiff needs to be given an opportunity to move appropriate application seeking leave of trial Court for permission to produce those documents. 8. It is made clear that observations made by this Court are only prima facie in nature to show the need for grant of fresh opportunity and shall not influence trial Court while considering application, if any, moved by petitioner/ plaintiff seeking such leave. The trial Court shall be free to consider records produced before it and the arguments advanced in accordance with law and reach its own finding. 9. At the same time, the Respondent No.1 (original defendant) cannot be blamed for all this. The learned counsel has contended that by permitting filing of such application, the lacunae is allowed to be filled in. I find the contention misconceived. I refrain myself from observing more in this respect as this issue needs to be addressed to by trial Court. The Respondent No.1 is 11 REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 compensated by Rs.10,000/- to be paid by the Petitioner/ plaintiff before the trial Court within a period of two weeks from today. 10. If such application is filed, within said period, before the Trial Court and costs are deposited, trial Court shall consider that application independently and uninfluenced by any observations and present order of this Court. The trial Court shall reach its own finding and conclusions in the matter as early as possible as suit is pending since 1993. 11. In view of the discussions, the prayers made in Review Application are partly granted. The prayers made in Writ Petition No.5632 of 2005 also stand partly granted. The impugned order passed below Exhibit-94 on 22nd March, 2005 is quashed and set aside. The petitioner/ plaintiff is given liberty to move fresh application as stipulated above and make payment of costs indicated above. Rule is made absolute accordingly in Review Petition. [B.P.DHARMADHIKARI, J.] Dated:09/02/2011. ans/171 12 REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 REVIEW APPLICATION NO.: 171 OF 2009 IN WRIT PETITION NO.: 5632 OF 2005 Date of decision: 9th FEBRUARY, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE B. P. DHARMADHIKARI. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE