1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5265 OF 2008 1. Ramabai W/o.Satyendra Zindam, Age-50 years, Occu-Agriculturist and Household, R/o.Zindamwadi, Behind Kala Mandir, Nanded, District : Nanded 2. Satyendra S/o.Shivram Zindam, Age-51 years, Occu-Agril. and Business, R/o.Zindamwadi, Behind Kala Mandir, Nanded, District Nanded. PETITIONERS VERSUS 1. Saraswatibai W/o.Vyankatrao Parve, Age-39 years, Occu-Agriculturist and household, R/o.Gaur, Talukar Purna, District : Parbhani. 2. Rajashree W/o.Nandkumar Dalve, Age-29 years, Occu-Household, R/o.Jawaharnagar (Babanagar) Nanded, District : Nanded. 3. Samrendra S/o.Satyendra Zindam, Age-26 years, Occu-Student, R/o.Zindamwadi, Behind Kala Mandir, Nanded, District : Nanded. 4. Surendra S/o.Satyendra Zindam, Age-22 years, Occu-Student, R/o.Zindamwadi, Behind Kala Mandir, 2 Nanded, District : Nanded. 5. Kum.Shradha D/o.Satyendra Zindam, Age-24 years, Occu-Student. R/o.Zindamwadi, Behind Kala Mandir, Nanded, District : Nanded. RESPONDENTS Mr.R.R.Bharaswadkar, h/f. Mr.M.M.Patil (Beedkar), advocate for petitioners. Miss.Vaishali Deshmukh, h/f. Mr.V.D.Salunkhe, advocate for the first respondent. Respondent no.2 to 5 are not served as they are formal party. (CORAM : A.V.POTDAR, J.) DATE : 02/07/2009 PER COURT : 1. By the present writ petition under Article 227 of The Constitution of India, the petitioners/original defendants in Spl.C.S.No.16/2005 on the file of Jt.Civil Judge, S.D.Parbhani (Shri.B.C.Kamble), have challenged the order passed below Exh.59 on 05/03/2008. 2. Rule. 3. By consent of the parties, rule made returnable forthwith and the writ petition is taken up for final hearing at the stage of admission itself. 4. Before proceeding further, this Court has to express its 3 anguish about the manner in which the order passed by this Court are flouted and dis-obeyed by the Lower Courts. The order under challenge is a typical example of this observation. Literally, the present writ petition is an unfortunate litigation in which because of the fault of the Presiding Officer, in the present Writ Petition Jt.Civil Judge, S.D. Parbhani (Shri.B.C.Kamble), who has not followed the orders passed by this Court, and the parties to run from pillar to pole and pole to pillar to see their remedy. 5. The factual matrix which gave rise to file the present writ petition is that the respondent no.1 herein have filed Spl.C.S.No. 16/2005 against the present petitioners and respondent no.2 to 5 who were arrayed in the suit as defendant no.2 to 5. The suit was filed by respondent no.1 herein for specific performance of contract of sale of the property described in plaint para no.1. After the suit summonses were served on the petitioners as well as the respondents defendants, they appeared in the suit and objected the suit by filing their respective written statement. In the written statement filed by the present petitioners, who were arrayed as defendant no.1 and 2 before the Trial Court, have raised an objection about the document of agreement of sale as even though under the said agreement of sale, the possession of the suit property was alleged to be given to the first respondent at the hands of these petitioners and others. It was not properly stamped hence inadmissible in evidence. It appears that after the issues were framed, the suit was listed for evidence of the parties. During the evidence before the trial court, it further appears 4 on behalf of 1st respondent that affidavit of evidence i.e. affidavit of examination in chief of one Dagadu Gangaram Jogdand was filed before the Trial Court. This affidavit is at Exh.54. this affidavit, the agreement of sale was referred and was exhibited as Exh.59. This exhibition to the document was objected by the advocate for petitioners that the document/agreement of sale is not properly stamped hence not admissible in evidence and it was requested to the Court to decide this objection at the earliest stage. Inspite of these objections, the learned Trial Court pleased to pass the order on document “exhibited subject to objection”. Initially this order was passed on 31/07/2007. Being aggrieved by this order, the petitioners herein have challenged the said order by W.P. No.5507 of 2007. The said writ petition was disposed of vide order dated 11th January 2008 by my brother judge (Justice Shri.B.R.Gavai). While disposing the writ petition, the order passed by the Trial Judge was quashed and set aside and the matter was remanded back to the Trial Court to decide the application of the present petitioners afresh and in accordance with Law. While disposing the writ petition, it was observed by my brother judge in para no.10 and 11 as - Para no.10 - “It has further been held that the objection as to the admissibility of the document should be dealt with the decided at the time the affidavit with the document is produced and taken on record. It is not permissible for the Court to allow the documents produced alongwith affidavit and exhibit them without considering the objection of the other side.” (Underline is mine) 5 Para no.11 – In that view of the matter, I find that the learned trial court has grossly erred in passing the impugned order. As already discussed hereinabove, it was necessary for the learned trial court to have decided the question regarding admissibility of the said document before exhibiting the same. In that view of the matter, the impugned order dated 31st July 2007 is quashed and set aside. The matter is remitted back to the learned trial court to decide the application of the present petitioners below Exh.59 afresh, in accordance with law. (Underline is mine) 6. After remand, again the matter was heard by the learned trial Court, and the application was rejected vide his order dated 05/03/2008. Para no.3 of the said order is material for the consideration of this Court, wherein it is observed by the trial court that - It further appears that on 27/06/2007 plaintiff has filed evidence affidavit of PW-2 Dagdu Gangaram Jogdand vide Exh.54 who is witness on agreement of sale vide Exh. 59. Agreement of sale has been referred in his affidavit. On that day,an order has been passed on his affidavit vide Exh.54 that documents be exhibited subject to objection. Merely endorsement has not been made on agreement of sale. Thus it appears that agreement of sale is admissible in evidence. Therefore I do not find substance in the contention raised by the defendants and their 6 advocate. Hence, I proceed to pass following order. 7. From the observations of the trial court as stated above in the above referred para supra, it is clear that my brother judge while disposing the earlier writ petition vide his order dated 11th January 2008, has given directions to the learned trial court to decide first the objections on merit in accordance with law. These directions were not obeyed by the learned Trial Court and has committed the same error which he has committed earlier while passing the order on the objection raised by the petitioners , which was under challenge and subject matter of the earlier writ petition. Thus the fact is clear that it is a clearcut case of dis-obedience of the directions given by this Court by the trial court. In the premise, the order dated 05/03/2008 is hereby quashed and set aside. The learned trial court Jt.Civil Judge, S.D. Parbhani (Shri.B.C.Kamble) is hereby warned that in future he has not to dis-obey the orders of the Higher Courts and in case it is noticed that the orders are dis-obeyed, then this Court will take serious view about the act and action of the Presiding Officer. Copy of this order be sent to the concern judge for his notice and to take the caution in future. 8. Before parting with the judgment of this writ petition, I may like to refer the judgment of the Full Bench, reported in 2008(6) Mh.L.J. 886 in the matter of Hemendra Rasiklal Ghia versus Subodh Modi. In this judgment reference was made by the Full Bench about what is the proper stage when the objections raised 7 about the documents, its admissibility and when the document to be exhibited. It is observed by the Full Bench in para no.90, 92 and 93 as to when and what is the proper stage, and when to raise the objection about production, about the admissibility and about how to exhibit the document. After this judgment was dictated, the copy of the judgment was circulated to all the Judicial Officers in the State of Maharashtra to follow the rule given in the said reference. Inspite of the judgment of the Full Bench is referred and circulated to all the sub-ordinate Judicial Officers and inspite of this circulation if the sub-ordinate Judicial Officers are not taking note of the observations of the Reference Court, then this Court dealt seriously about the acts of the sub-ordinate Judicial Officers. 9. Rule thus made absolute as indicated above. The writ petition stands disposed of accordingly with no order as to costs. 10. Both the parties to appear before the Trial Court on 20/07/2009. The Trial Court is hereby directed to decide the objection application given by the petitioners in accordance with Law, by the way there must not be third round of litigation between the parties. Trial court not to influence with these observations while deciding the issue pending before him in accordance with Law. (A.V.POTDAR, J.) khs/wp5265-08