1 wp3936.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3936 OF 2011 Abhijeet s/o Chandrakant Chaunda, Age: 31 years, Occ: Agri, & Business, R/o. Pochamma Galli, Latur, Taluka & Dist. Latur. ...PETITIONER VERSUS Ashwini w/o Yogesh Ligade, Age: 29 years, Occ: Household, R/o. Samrat Chowk, Solapur, and others. ...RESPONDENTS ... Mr. C.R. Deshpande, Advocate for petitioner. Mr. S.I. Nandode, Advocate for respondent No.3. Mr. V.D. Salunke, Advocate for respondent Nos.4&5. ... CORAM: S.S. SHINDE, J. DATE : 15TH DECEMBER, 2011 PER COURT : . Heard learned Counsel for the parties. 2. This petition takes exception to the order dated 15-03-2011 below Exhibit-90 in Special Civil Suit No. 64 of 2006 passed by the Civil 2 wp3936.11 Judge, Senior Division, Latur. By the impugned order, production of document i.e. will deed dated 15-10-2004 on an application filed by the original defendant No. 4, has been allowed by the trial Court. 3. Learned Counsel appearing for the petitioner submits that, the application filed for production of the said will deed is allowed when the evidence of the plaintiff is over and to some extent, the evidence of the defendant is also completed. According to the Counsel for the petitioner, though the written statement is filed in the year 2006, there is no satisfactory explanation offered in the application to take the will deed on record that why for four years no such document was produced on record. It is further submitted that, there is a passing reference in the written statement about the said document. No concrete and definite information is incorporated in the written statement about the said will deed. Learned Counsel would submit that, 3 wp3936.11 even if it is assumed that there is mention about the said will deed in the written statement, it was incumbent upon the defendant to produce the copy of the said will deed alongwith written statement and also to produce the said copy on record by serving the same on the plaintiff, however, the said procedure has not been followed. . Learned Counsel invited my attention to the provisions of Order 1A Rule 8 of the Code of Civil Procedure and submitted that, such production at the stage of the trial when the plaintiffs have completed the evidence and the defendant has also began his evidence, should not have been allowed. Learned Counsel also submitted that, it was brought to the notice of the Court that the said document is manufactured and it is in fresh ink. However, the trial Court has not properly considered the contention of the plaintiff and allowed the application filed by defendant No.4 for production of the will deed dated 15-10-2004. Therefore, this Court may allow 4 wp3936.11 this petition. It is further submitted by the Counsel for the petitioner that, though the said document was available one year prior to filing the same, it was not filed for about one year. He further submits that, right of the plaintiff to examine the witnesses to the will deed has been lost due to late production of the said will deed on record. Therefore, according to learned Counsel for the petitioner, petition deserves to be allowed. 4. On the other hand, learned Counsel for respondent Nos. 4 and 5 would submit that, in para-2 of the written statement details were incorporated in respect of the will. The date of the execution of the said will deed was also mentioned. All the material particulars were also incorporated and therefore, it cannot be said that, there were no details about the said will deed in the written statement. It is further submitted that, since original will deed was not in possession and it was misplaced, defendant 5 wp3936.11 No. 4 could not produce the said original will deed at the time of filing the written statement. Learned Counsel invited my attention to the judgment of this Court in the case of Chitrakala Desai vs. Balu Marathe reported in 2008(6) Mh.L.J. 427 which is referred by the trial Court in the impugned order and submitted that, this Court may not interfere in extraordinary writ jurisdiction. 5. I have given due consideration to the rival submissions. At the outset, it would be appropriate to produce herein below paragraph-2 of the written statement filed by defendant No.4, which reads thus : "2. That, the contents of para no.1 of the plaint are false hence denied. The content of para no.1/A of the plaint are also false hence denied. Policies NO. 982275577, 981005128 and 982203255 have been opened by deceased Chandrakant Chounda from his own income and nominee of 6 wp3936.11 which shown to defendant no. 4 and as per will deed dt. 15-10-2004 as per law concerned Insurance Company given amount to defendant no.4 only. The plaintiff and defendants no. 1 to 4 has no concerned with these amounts. But in collusion with defendant's no. 1 to 3 filed present false suit and falsely claiming interest in the above referred Insurance Company Policies. The Late Shri. Chandsrakant Chounda was deposited amount of Rs.1,70,000/- by way of fixed deposit with Sahara India Commercial Corporation and nomination shown to the defendant No.4 only. The above said amount deposited by Late Shri. Chandrakant Chounda was from his self income and this policy given to defendant no. 4 as per will deed. The plaintiff and defendant No.1 to 3 has no right, title and interest on the above said amount. The Item No. 4 Ford Icon Car bearing Registration No. MH-24/C-4472 7 wp3936.11 have been purchased by defendant No. 4 only, from the income her father, therefore the above said Car have been exclusively owned and possessed by defendant No.4, there is no question arose for family of Chounda. The Item No. 3 Toyoto Quails Jeep bearing No. MH 24/C-2569 purchased by Late Shri. Chandsrakant Chounda from his own income. The plaintiff has no right to claim any kind of partition from it." 5. Upon perusal of para-2 of the written statement, it is abundantly clear that, not only there was mention about the said will deed, however, the date of execution of the will deed is also mentioned in the said paragraph. Other details are also given. Therefore, there was foundation in the written statement about having such will deed executed and therefore, submission of the Counsel for the petitioner that, there is a 8 wp3936.11 passing reference in the written statement about the will deed, cannot be accepted. 6. From the perusal of the impugned order, it clearly emerges that, only production of the will deed is allowed, however, to contest the said document is left open to the parties. Therefore, it is open for the petitioner to contest the said document when it is tendered in the evidence. The order impugned in this petition is passed after imposing cost of Rs.1000/- on defendant No.4. Ultimately, the provisions which are involved in this matter is the procedure to facilitate smooth administration of justice. However, that would not take right of the party to tender the document in support of their contention in the matter. The view taken by the trial Court is reasonable. Even if other view is possible is no ground to interfere and invoke the jurisdiction. 7. Therefore, taking into consideration the reasons recorded by the trial Court in the 9 wp3936.11 impugned order, I do not think that the case is made out to interfere in the writ petition and therefore, same stands rejected. However, it is needless to clarify that, it will be open for the petitioner to contest the said document during the trial. Writ Petition stands rejected. [S.S. SHINDE, J.] sut/DEC11