ash 1 fa-286.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.286 OF 2010 Shri Sunil Kumar Ramdhari Sharma. .. Appellant Vs Smt. Subhavati Girdhari Yadav. .. Respondent -- Shri D.S. Mhaispurkar for the Appellant. Shri B.A. Singh for the Respondent. -- CORAM ; A.S. OKA, J DATED : 15TH SEPTEMBER, 2011 P.C. . The parties were put to notice that the Appeal will be taken up for final disposal at the admission stage and accordingly the record and proceedings were called for. 2. This Appeal has been preferred by the original Defendant for challenging the Judgment and Decree passed by the Trial Court on 29th June, 2009 by which the suit filed by the Respondent has been decreed. 3. According to the case of the Respondent, her deceased husband acquired the Room No.40 admeasuring 10 feet x 8 feet, more particularly described in the Plaint as the suit premises. The case of the Respondent is that during the life time of her husband, a photo pass was issued in respect of the suit premises. It is contended that in the ash 2 fa-286.10 year 1989-90, the occupants of the chawl formed a society and the Respondent became member of the said Society. It is alleged that the Respondent was having some monetary transaction one with Ram Avadh Yadav. He had obtained thumb impression of the Respondent on a document typed on a stamp paper by making misrepresentation. It is alleged that in October, 2002, the Respondent became aware from her neighbour that the Appellant was claiming ownership over the suit premises on the basis of certain documents. She learnt that the Respondent was relying upon affidavit dated 9th April, 2002 and General Power of Attorney dated 9th April, 2002 allegedly executed by her. It was alleged that the documents were fraudulently created by Ram Avadh Yadav and the office bearers of the Society. The first prayer in the suit was for declaration that the said documents along with the Agreement for sale dated 9th April, 2002 executed on the basis of the alleged Power of Attorney are false, illegal, sham and bogus. The second prayer is for perpetual injunction restraining the Appellant from acting upon the said documents and the third prayer was for perpetual injunction restraining the Appellant from disturbing the possession of the Respondent over the suit premises. 4. Learned counsel appearing for the Appellant pointed out that the Roznama of the proceedings of the suit shows the circumstances under which the Appellant was denied opportunity to ash 3 fa-286.10 adduce the evidence. He submitted that affidavit in lieu of examination-in-chief of the Appellant was filed. His submission is that adequate opportunities were not given to the Appellant to adduce the evidence. The Trial Court has proceeded to pass a decree. He pointed out that in the reply to the Civil Application for interim relief filed by the Respondent, it has been disclosed that on 28th October, 2009 the possession of the suit premises was parted with to one Ashok Kumar R. Gupta and, therefore, a Civil Application was filed for adding the transferee as a party. He prayed for remand. He stated that the Appellant is ready to pay substantial amount by way of costs. Learned counsel appearing for the Respondent submitted that more than adequate opportunities were granted to the Appellant to adduce the evidence. As the Appellant failed to avail of the said opportunities, the Trial Court proceeded to pass a decree on the basis of the evidence adduced by the Respondent. He submitted that no interference is called for in the impugned Judgment and Decree. 5. Perusal of the records and Roznama of the proceedings of the suit shows that on 3rd October, 2008, additional issues were framed by the Trial Court. The evidence of the Respondent was recorded on 7th January, 2009. Roznama dated 20th January, 2009 disclosed that initially the Advocate for the Appellant stated that he was not served with a copy of the affidavit in lieu of examination-in-chief of the ash 4 fa-286.10 Respondent but later on, he confirmed that he was possessing a copy of the same and in fact the Advocate appearing for the Appellant tendered apology. On 3rd February, 2009, cross-examination of the Respondent by the Advocate for the Appellant was recorded. On 12th February, 2009 which was the next date, the suit was adjourned on the request made by the Appellant. Even on 26th February, 2009 on the request made by the Appellant, the suit was adjourned. On 31st March, 2009, a statement was made by the Advocate for the Appellant that the affidavit in lieu of examination in chief was ready but the Appellant was not present as he was not aware of the date. On 6th April, 2009, the Trial Court granted one more opportunity to the Appellant to file an affidavit in lieu of examination-in-chief subject to costs of Rs.250/-. On 6th May, 2009 the Trial Court noted that there was failure on the part of the Appellant to pay costs and therefore, the Court proceeded to hear the arguments and the impugned decree was passed on 29th June, 2009. 6. The Roznama does show that there was some default on the part of the Appellant. At the same time, there is material on record to show that the affidavit in lieu of examination-in-chief of the Appellant was kept ready. Learned counsel appearing for the Appellant stated that the Appellant is ready and willing to pay substantial amount by way of costs. He prayed that an order of remand be passed so as to enable him to adduce evidence in the suit. ash 5 fa-286.10 In fact, a demand draft in the sum of Rs.25,000/- drawn in the name of Respondent has been handed over in the Court to the learned counsel appearing for the Respondent. 7. Now the Respondent has parted with the possession of the suit premises. The issue of title to the suit premises is involved. Therefore, in the interests of justice an opportunity deserves to be granted to the Appellant to adduce evidence in the suit. The impugned decree is operating from 29th June, 2009. Now the Respondent is not in possession of the suit premises. Only by way of indulgence, an opportunity deserves to be granted to the Appellant to adduce evidence in the suit. To avoid prejudice to the Respondent, the interim relief in terms of the decree of injunction passed by the Trial Court will have to be continued till the disposal of the suit. 8. As far as the Application made by the Appellant for impleading third party is concerned, the Appellant will have to make an appropriate application in that behalf before the Trial Court. Learned counsel appearing for the Respondent submitted that this order should be passed without prejudice to the rights of the third party. The third party is not before the Court, and therefore, it is not necessary to specifically issue the said clarification. ash 6 fa-286.10 9. Hence, I pass the following order: ORDER : (i) The impugned judgment and decree dated 29th June, 2009 is quashed and set aside and the Suit No.5874 of 2002 is restored to the file of the Trial Court subject to the Appellant paying costs of Rs. 25,000/- to the Respondent. The amount of costs has been already paid to the Respondent; (ii) The parties are directed to appear before the Trial Court on Monday the 14th November, 2011 for fixing the schedule of the date; (iii) The Appellant shall file an affidavit in lieu of examination-in-chief on the date specified by the Trial Court; (iv) The Trial Court shall give an opportunity to the Appellant to adduce evidence by examining himself and other witnesses, if any; (v) Till the disposal of the suit, there will be interim injunction in terms of perpetual injunction granted in terms of the impugned decree; ash 7 fa-286.10 (vi) The Trial Court shall conclude the trial as expeditiously as possible and preferably before the end of April, 2012; (vii) It will be open for the Appellant to apply to the Trial Court for impleading Shri Ashok Kumar R. Gupta as a party to the suit. If such application is made, the Trial Court shall decide the same on its own merits; (viii) All contentions of the parties on merits of the suit are expressly kept open. (ix) The Appeal is partly allowed on above terms; (x) Record and proceedings be forthwith sent back to the Trial Court; (xi) Pending Civil Applications do not survive and the same are disposed of. ( A.S. OKA, J )