High Court

Legal Reasoning

{1} 912-wp-609-2016 IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD912 WRIT PETITION NO. 609 OF 2016Shravan Bhujang Salve….Petitioner VERSUS1.Upsampada Shailej Kirte2.Siddodhan Shravan Salve3.Mahendra Shravan Salve4.Aruna Lahurao Acharya5.Ashananda Satish Kamble6.Shridevi Sudarshan Jogdand7.Bhagyashree Amol Kamble …..Respondents ….. Mr. Sanket Shinde h/f. Ms. Ashwini Lomte, Advocate for the PetitionerMr. G.L. Deshpande, Advocate for respondent No. 1....... CORAM : MANJUSHA DESHPANDE, J. DATE : 19th MARCH, 2025ORDER :1.Petitioner is challenging the order dated 09.04.2015passed by 3rd Joint Civil Judge, Junior Division, Latur, belowExhibit-67 in R.C.S. No. 25/2012, thereby application filed bypetitioner for setting aside ‘no further evidence’ order wasrejected.2.It is the case of the petitioner that petitioner isoriginal defendant in the suit filed by Respondent No. 1 bearingBhagyawant Punde {2} 912-wp-609-2016R.C.S. No. 25/2012. Respondent No. 1 had filed suit for partitionand separate possession claiming 1/8th share in the suitproperty. Petitioner appeared in the suit and filed writtenstatement. In the written statement filed by the petitioner it isclaimed that property in question is his self acquired propertyand not Hindu Joint Family property. According to the petitioner,he had purchased the suit property i.e. Gat No. 162,admeasuring 8 Acres 17 Ghunta, situated at village Bhosa, Tq.Latur, from one Shivaji Kisanrao Khose by registered sale deedon 24.03.1980 and partitioned land in favour of his wifeChampabai to the extent of 1 Hectare 60 R. He has also soldland to the extent of 1 Hectare 21 R to one Shivram BalappaChavan from his own share.3.It is further contended in the written statement thathe has also sold some part of the land for meeting medicalexpenses of his wife and after transfer of parts of land he is inpossession of land only to the extent of 59 R, which is ownedand possessed by him. During the pendency of the suit, in orderto prove that he had his own income from which he hadpurchased the suit land, petitioner wanted to examine onewitness namely Mehebub Pathan, whose affidavit of examinationBhagyawant Punde {3} 912-wp-609-2016in chief is already on record. He wanted to examine him in orderto prove Arabic documents which substantiate the defence of thepetitioner that suit property is acquired by him from his ownincome. However, the witness of the petitioner could not remainpresent on the date fixed for his examination due to which ordercame to be passed by the Trial Court, by observing thatrespondent is absent and has not produced any evidence. Inview of the observation, order of ‘no evidence’ has been passedon 19.01.2015. Thereafter, petitioner filed an application on27.03.2015, with a prayer to set aside ;evidence close’. It wasstated in the application that witness Mehebub Pathan is ateacher in the school, therefore, he could not remain present ongiven date. Therefore, order dated 19.01.2015 may be set aside.Plaintiff opposed the application and Trial Court has rejected theapplication by order dated 09.04.2015, which is impugned in thepresent petition.4.Learned advocate for the petitioner submits that thesuit is filed by plaintiff for partition and separate possession.Since it is his defence that the suit property is purchased by himfrom his own income as he was working in South Arabia country,he wanted to produce certain documents which wouldBhagyawant Punde {4} 912-wp-609-2016substantiate his claim. In order to prove the documents whichwere in Arabic language, it is necessary for him to examine thewitness knowing Arabic. The Trial Court while passing the hasnot taken into consideration the importance of witness and hasobserved that, “the fact in issue is not that, whether defendanthad any source of income to purchase the suit property. Byadducing the evidence of witness Mahebub Pathan, defendant iswilling to prove the translation of his identity card and foreignwork permission issued by South Arabia Government. But hisevidence will not be helpful to prove any fact in issue. It is theduty of the Court to check that, whether evidence which party iswilling to adduce is relevant or not.” This according to learnedadvocate for the petitioner would cause great prejudice to thepetitioner since his defence is based on the ground that he hadindependent income and from that income he has purchased thesuit property, therefore, suit property is his self acquiredproperty and not Joint Hindu Family property. He, thereforesubmits that writ petition deserves to be allowed by setting asidethe impugned order.5.Per contra, learned advocate for respondent No. 1opposes the writ petition. According to him, there is no pleadingBhagyawant Punde {5} 912-wp-609-2016in the written statement that petitioner was working in Gulfcountry. Therefore, he cannot examine witness in supportthereof. Therefore, according to him, the Trial Court had notcommitted any error in passing the order impugned, therefore,impugned order does not deserve any interference.6.After hearing the parties and after perusing theimpugned order, it is evident that respondent No. 1/originalplaintiff has filed suit for partition and separate possession of thesuit property, which according to plaintiff is joint Hindu Familyproperty. As against that in the written statement it is the standof the petitioner that he had purchased the suit property fromhis own income by way of registered sale deed. The propertypurchased is from his own income. Therefore, in order to provethat suit property has purchased by him from his own income,he had filed affidavit in examination in chief of witness namelyMehebub Pathan and only oral evidence was remained to be led.Since, the witness is school teacher, he could not remain presenton the given date, which is apparent from the application filed bypetitioner.7.The Trial Court has not taken into consideration thatthe defence of the petitioner itself is that it his independentBhagyawant Punde {6} 912-wp-609-2016property purchased by him from his own income as he wasworking in Gulf country, therefore, it is necessary for him toexamine said witness to translate the documents in support ofhis stand. The Trial Court has recorded perverse finding byholding that, fact in issue is not that, whether defendant had anysource of income to purchase the suit property. Though, claim ofthe plaintiff was that it is joint Hindu Family property, petitioner’sdefence in Written Statement was that he has purchased theproperty from his own income. Therefore, it was necessary forhim to examine said witness.8.If the opportunity is denied to the petitioner to provedocuments which are necessary for proving that petitioner wasworking in Saudi Arabia, great prejudice would be caused to thepetitioner and it would weaken his defence. The whole defence ofthe petitioner is based on the ground that the suit property ispurchased by him and it is his self acquired property. If theimpugned order is not set aside, it would amount to denial ofopportunity to the petitioner to lead evidence and prove hisdefence. Hence, order dated 09.04.2015 passed by 3rd Joint CivilJudge, Junior Division, Latur, deserves to be quashed and setaside.Bhagyawant Punde {7} 912-wp-609-20169.Writ Petition is allowed.10.Order dated 09.04.2015 passed by 3rd Joint CivilJudge, Junior Division, Latur, below Exhibit-67 in R.C.S. No.25/2012 is hereby quashed and set aside.11.Application Exhibit-67 is allowed. (MANJUSHA DESHPANDE, J.)Bhagyawant Punde