1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2 OF 2009 Shri Vasudev V. Nemlekar ... Appellant v/s State of Maharashtra & ors. ... Respondents Mr.D.D.Madon with Mr.Sanjiv A. Sawant for the appellant. Mr.A.R.Patil, A.G.P. for the State. CORAM: SMT.NISHITA MHATRE, J. DATED: 18TH AUGUST, 2009 P.C.: 1. The present appeal has been filed against the judgment and order of the City Civil Court in L.C. Suit No.2196 of 2006 dated 5.12.2008. The City Civil Court has dismissed the suit with compensatory costs of Rs.10,000/- to be recovered from the Constituted Attorney of the plaintiff. 2. The facts giving rise to the present appeal are 2 as follows :- The appellant had filed the suit through his Constituted Attorney for an injunction restraining the respondents from demolishing the suit structure without following the due process of law. It appears that the structure, according to the defendants, was 50 meters within the radius of mangroves and, therefore, the defendants had ordered its demolition. This action was taken by the defendants in accordance with the order passed in Writ Petition No.3246 of 2004. It appears that, after the order in the aforesaid writ petition was passed on 6.10.2005, the structure was demolished on 21.12.2005. The suit was filed in 2006 and some interim orders were obtained by the plaintiff for reconstruction of the suit premises. 3. When the suit was finally heard by the City Civil Court, it was found that the plaintiff did not prove that he was in possession, occupation and enjoyment of the suit premises from 1979 onwards and, therefore, no injunction was granted to the plaintiff. No written statement was filed by the 3 respondents in the suit. However, on perusal of the oral and documentary evidence on record, the City Civil Court found that the Constituted Attorney had fabricated the power of attorney and that he had sought an injunction on the basis of that document. The City Civil Court held that the constituted attorney was not aware whether the plaintiff was alive and of his whereabouts. The Court has observed that the documents in the name of the plaintiff were misused by the person claiming to be the Constituted Attorney of the plaintiff. The Court also observed that the plaintiff did not step into the witness box and it was the constituted attorney who deposed before the Court in support of the case of the plaintiff. Considering the evidence on record the Court held, after referring to the judgment in S.P.Changalvaraya Naidu by LRs v/s Jagannath by LRs & ors., reported in A.I.R. 1994 SC 853, that the Constituted Attorney had intentionally withheld certain documents from the Court and that the evidence on record indicated that he had fabricated the documents only to obtain the reliefs from the Court, fraudulently. In these circumstances, the Court dismissed the suit. 4 4. Mr.Madon, learned counsel appearing for the plaintiff tried to contend that such an order could not have been passed when there was no written statement on record. He submits that the defendants ought not to have been permitted to cross-examine the witness for the plaintiff on the issue as to whether there were mangroves within the area of 50 meters from the suit structure or whether the documents were genuine. According to the learned counsel, since there was no pleadings on record, such cross- examination on the documents ought not have been permitted by the Court. 5. This submission, in my opinion, is untenable. Although a written statement is not filed by a defendant he can always cross-examine the witness on the basis of the material on record. In the present case, the Trial Court, after considering the evidence on record has, in my opinion, rightly dismissed the suit. The appeal is therefore dismissed. 6. On an application made by Mr.Madon, the structure which is in existence shall not be demolished for a period of four weeks from today. 5 7. In view of dismissal of the first appeal, civil application No. 4 of 2009 also stands dismissed. ..... 6