Writ Petition No. 9033 of 2012 · Bombay High Court

Smt. Surekha Syamrao Kadam, Age : 50 Years, Occu. : Household, R/o Devlali Pravara, Lakh Road, Tq. Rahuri, Dist. Ahmednagar. Versus

Bhausaheb Baburao Katore, Age : 65 Years, Occu. : Agril., .. Petitioners 2 wp 9033.12 R/o Nimgaon Korhale, Tq. Rahata, Dist. Ahmednagar.

Sau. Suman Ramdas Gaware, Age : 55 Years, Occu. : Household, R/o Shirasgaon, Tq. Shrirampur, Dist. Ahmednagar. Sau. Nisha Sadashiv Roham, Age : 48 Years, Occu. : Household, R/o Sakori, Tq. Rahata, Dist. Ahmednagar. .. Respondents Shri S. D. Kulkarni, Advocate h/f Shri S. S. Kulkarni, Advocate for Petitioners. Shri V. D. Hon, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 05TH NOVEMBER, 2012. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing.

The petitioners/defendants had led examination in chief of a witness Janardhan by way of affidavit. The respondents/plaintiff filed an application to discard the said affidavit/examination in chief. The said application is allowed. Aggrieved thereby present petition. 3 wp 9033.12

3. Shri Kulkarni, the learned counsel submits that the Trial Court could not have discarded the said evidence only on the ground there is no pleading. The reliance is placed on the judgment of this Court in a case of Appa Babaji Misal Patil Vs. Dagdu Chandru Misal deceased by his heirs Naginbai Dagdu Misal etc. reported in AIR 1995 Bombay 333. The learned counsel further contends that the Court would not have discarded the said evidence and has no jurisdiction to do so. For the said purpose the learned counsel relies on the judgment of learned Single Judge of this Court in a case of Harakchand Gulabchand Dhoka Vs. Kashinath Narsingh Marathe reported in 2010(6) Bom. C. R. 379.

Shri Hon, the learned counsel for the plaintiff submits that, the said evidence was not relevant. It was an abuse of process of Court. Te Court has rightly invoked Sec. 151 of the Code of Civil Procedure. The said evidence was without pleading and not in consonance with the case put forth by the defendant in the written statement. No error can be found in the order of Trial Court rejecting/discarding said evidence.

With the assistance of learned counsel I have gone through the order. This Court in a case of Harakchand Dhoka Vs. 4 wp 9033.12 Kashinath Narsingh Marathe referred supra has held thus : "Specific Relief Act, 1963, Secs. 10 & 12 - Code of Civil Procedure, 1908, O. 18 Rr. 4 & 5 - Court's power - Scope - Deletion of paras in affidavit in lieu of examination-in-chief - Application rejected by Court holding it had no power to grant permission for its deletion - Held, once an affidavit in lieu of examination-in-chief is filed, it partakes character of examination-in-chief. There is no provision in Code to enable Court to order its deletion. In case statement is irrelevant or beyond scope of pleadings an objection can always be taken in writing and Court can discard such portion while finally deciding suit. 2004(3) Bom.C.R. 583(S.C.). Trial Court is therefore, right to extent that it cannot order deletion of objectionable paras. But on merits application of appellant be treated as an objection to be decided by Court at appropriate stage. "

What is the relevancy of said evidence, what is the weight age given to the said evidence all these aspects can be considered by the Court at the time of final adjudication. At this stage, it was improper for the Court to discard the said evidence itself. If at the time of final trial the Court finds the said evidence to be irrelevant, not proved, then at that stage, the Court may say that, it does no rely on the said evidence. But at this stage, the Court could not have discarded the said evidence. 5 wp 9033.12

The plaintiff will have every opportunity to cross examine the said witness and thereafter the significance, relevancy of the said evidence would be considered by the Court at the time of adjudicating the suit.

In the light of the above, the impugned order is quashed and set aside. The application Exhibit 233 is rejected. Rule is accordingly made absolute in above terms.

Needless to state that, the plaintiff is entitled to agitate about the relevancy of the said evidence at the time of final arguments.

It appears that the suit is filed in the year 2000. The evidence of the plaintiff is complete. The earlier order was passed by this Court in Writ Petition No. 335/2011 that the suit should be disposed of within six months from December, 2011. The said period has also lapsed. The Trial Court shall endeavor to decide the suit as expeditiously as possible and under any circumstances within six (6) months from today. [ S. V. GANGAPURWALA, J. ] Sd/- bsb/Nov. 12