High Court

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WP 1707/20181IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD956 WRIT PETITION NO. 1707 OF 2018The State Of Maharashtra Through District Collector Ahmednagar….Petitioner VERSUSPradip Raghunath Gaikwad And Others…..Respondent ….. AGP for the Petitioner : Mrs. P.R. BharaswadkarAdvocate for Respondents 1 & 2 : Mr. N.P. Ghanwat Advocate for Respondents 4 to 9 : Mr. P.G. Patil…..AND957 WRIT PETITION NO. 1854 OF 2018The State Of Maharashtra Through District Collector Ahmednagar….Petitioner VERSUSRaubai Bhausaheb Perne Through Gpa C B Perne And Another…..Respondent ….. AGP for the Petitioner : Mr. V.M. ChateAdvocate for Respondents 1 & 2 : Mr. N.P. Ghanwat …..CORAM :ARUN R. PEDNEKER, J.Dated :January 30, 2024 PER COURT :-1.Heard the learned counsel for the respective parties.2.By the Writ Petition No. 1707/2018, the petitioner/State ischallenging the order 19.9.2017 passed by the 6th Jt. Civil Judge, SeniorDivision, Ahmednagar below Exh. 71 in R.C.S. No. 146/2013. Theapplication at Exh. 71 was filed for setting aside the no cross orders as wellas evidence close order dated 17.4.2017 and 17.7.2017, which wererejected by the Trial Court on the ground that the unauthorised person i.e.clerk of the Tahsil Office has filed the affidavit, supporting the application. WP 1707/201823.The facts, leading to the present writ petition, can be briefly statedas under :-The present respondent has filed R.C.S. No. 146/2013 for the reliefof declaration and injunction in respect of the suit property Gat No. 682/2at village Rahuri Bk. The present petitioner/State is the original defendantin that matter and on issuance of summons, the State appeared in the suitand filed written statement, stating there in that the original plaintiff hasno right over the suit property. The original plaintiff had filed an affidavit inevidence at Exh. 42 on 17.4.2017 and since then the petitioner hereincould not cross examine the plaintiff No. 1, no cross order was passed on17.4.2017. On 17.7.2017 adjournment application was filed by thepetitioner herein, but the same was rejected by the trial Court and nocross order of another witness of the plaintiff was passed on the same day.4.Thereafter, the petitioner herein filed application on 6.9.2017 statingtherein that orders dated 17.4.2017 and 17.7.2017 in respect of no crossof plaintiff and one witness of plaintiff and closing the evidence by thedeponent may be set aside and the petitioner may be permitted to crossexamine the witnesses of the plaintiffs. The said application was supportedby the affidavit of the clerk of the Tahsil Office. The said application wasobjected by the original plaintiff. After hearing both the sides, the saidapplication was rejected by the trial Court by observing that there was noauthorisation to the clerk of the Tahsil Office to file the application andpetitioner is not due diligent. The court further observed that thoughwritten statement is filed by the Tahsildar, affidavit in support of theapplication is filed by the clerk of the Tahsil office. The trial Court observedthat filing of affidavit is not a mere formality and it is a very responsiblework and the application is filed in very casual manner. The Trial Courtobserved that there is no document on record to show that Tahsil officehas authorised the clerk to file affidavit. The Trial Court also observed thatso many opportunities have been granted to the petitioner herein for crossexamination of the plaintiff’s witnesses, that too without adjournmentapplication and thus, the conduct of the petitioner herein shows that thepetitioner is negligent in conducting the matter and it is nothing, but WP 1707/20183prolonging tactics. As such, the application, Exh. 71, is rejected by the trialCourt.5.The learned AGP appearing for the State submits that theauthorisation of the Tahsil office is a procedural aspect and the sameshould be permitted to be rectified by the petitioner if it was objected.Then the State has relied upon the judgment in the case of OmprakashDinodia Vs. Ashalata wd/o Late Anant Kumar Karmarkar and ors. reportedin 2002 (2) ALL M.R. 108 and placed reliance on the last four lines ofparagraph No. 5, which is as under :-“The Appellate Court has rightly discussed the ratio of thedecisions to observe that provisions of order 6 Rules 14 and 15are merely procedural and such defects can be cured even at alatter stage of the proceedings. In this view of the matter, thefirst contention raised on behalf of the petitioner, to my mind, iswholly misconceived and the same is, therefore, rejected.”6.Per contra, the learned counsel for the respondent/plaintiff submitsthat the judgment cited supra would not be applicable to the facts of thepresent case as in the case cited supra, the plaint was not signed by theplaintiff, but signed by their advocate and in the present case, the affidavitwas singed by completely unauthorised person.7.Considering the rival submissions, it cannot be said that the clerkworking in the office of the Tahsil office, who is government servent, iscompletely unauthorised person. The authority to file affidavit could havebeen conferred upon him and the same could have been rectified as it is amerely procedural part. This Court, while issuing notice in the present writpetition, directed the petitioner herein to deposit cost of Rs.6000/- beforethe Trial Court. The learned AGP submits that the cost is deposited in theTrial Court.8.In view of the discussion made above, the writ petition is allowedand the order 19.9.2017 passed by the 6th Jt. Civil Judge, Senior Division,Ahmednagar below Exh. 71 in R.C.S. No. 146/2013 is set aside and theapplication at Exh. 71 which was filed for setting aside the no cross orders WP 1707/20184as well as evidence close order dated 17.4.2017 and 17.7.2017 arerestored. The petitioner is permitted to rectify the defects in theapplication. Thereafter, the Trial Court to decide the application inaccordance with law. The amount of Rs.6000/- deposited in trial court bepaid to the plaintiffs. It is further directed that petitioner to pay furtheramount of Rs.4000/- to the plaintiffs i.e. total amount of Rs.10,000/-.Plaintiffs are permitted to withdraw the amount of Rs.6000/- from the trialCourt. Writ petition No. 1707/2018 is disposed of accordingly.9.For the reasons stated above, the same would be applicable in WritPetition No. 1854/2018. However, there is no further order of cost. Thewrit petition No. 1854/2018 is allowed and the order dated 19.9.2017passed by the 6th Jt. Civil Judge, Senior Division, Ahmednagar below Exh.102 in R.C.S. No. 145/2013 is quashed and set aside. The application, Exh.102 is restored which was filed for setting aside the no cross orders as wellas evidence close order dated 17.4.2017 and 17.7.2017 and 22.8.2017.The petitioner is permitted to rectify the defects in the application. TheTrial Court to decide the application in accordance with law. The writpetition No. 1854/2018 is disposed of accordingly. `( ARUN R. PEDNEKER, J. )ssc/