Vijay Hariramji Malani v. Manoj Shrinivasji Soni

The petitioner is the original defendant. A suit was filed by the respondent no.1 against the petitioner for recovery of an amount of Rs.22,40,934/-. It was the case of the respondent no.1 that an amount of Rs.11,56,000/- was deposited by the respondent no.1 with the petitioner and the said amount was repayable to the respondent no.1 along with interest. Since the defendant-petitioner failed to repay the amount in spite of demand, the respondent no.1 instituted the suit. Respondent no.1 had based the suit on certain documents including the document at Exh. 34. The petitioner filed the written statement on 23.11.2005. The matter proceeded and the respondent no. 1 filed his evidence on affidavit on 19.1.2009. Though the further examination of the respondent no.1 was recorded on 12.2.2009, the petitioner did not cross-examine the respondent no.1 and wp3506-12.order instead filed an application on 9.3.2009 that he be allowed to take the photographs of the reverse side of the document at exh. 34 and secure a report on the said document from a handwriting expert Shri Kotwal. The said application of the petitioner was allowed. Thereafter, the petitioner filed notice at Exh.44 to produce documents. Certain other applications were also filed by the petitioner. The respondent no.1 was cross-examined by the petitioner on 27.4.2010,

30.4.2010 and 16.6.2010. Affidavit of the petitioner’s witness was filed on 9.11.2010. The respondent no.1 cross- examined the witness. When this was done, the petitioner filed an application on 4.1.2012 that he be again allowed to take fresh photographs of the reverse side of the document at exh. 34. It was stated in the application that the data pertaining to the said document in the computer of the handwriting expert was erased. The trial court, however, by the impugned order dated 16.6.2012 rejected the application. On hearing the learned counsel for the parties, it appears that the trial court did not commit any error in rejecting the application. The trial court being seized of the matter for a long time is able to witness the manner in which the matter proceeds, the conduct of the parties as well as the demeanor of the witnesses and the parties. The trial court, being fully aware of the facts of the case, observed in the impugned order that the petitioner had taken various defences and accordingly various issues were framed, one of which was framed by casting the burden on the petitioner that there were no arrears of any amount on account of the mutual settlement between the parties. The trial court observed that the petitioner had to prove the mutual settlement by adducing oral evidence but instead of doing wp3506-12.order that the petitioner was again asking for permission to take photographs. The trial court found that at no point of time the petitioner had moved an application for calling the report of the expert in relation to the erased portion on Exh.

34. The trial court observed that in none of the applications the petitioner had made a reference to the erased portion of exh. 34 and that there was also no pleading to that effect. It was observed in the impugned order that though the document was under the examination of the handwriting expert on 1.8.11, no steps were taken by the petitioner to get the report of the expert till December, 2011. The court further observed that on 2.1.2012 the letter was issued by the handwriting expert stating that he has lost the data. There is an observation by the trial court in the impugned order that in what circumstances the letter was issued by the handwriting expert was not brought on record. In fact, a letter attached to Exh. 93 shows that due to some technical fault the handwriting expert was not able to give his opinion on the erasures or overwriting. The trial court observed that the overwriting was not a question before the court. Much has been said by the counsel for the petitioner about the observation made by the trial court that the petitioner was at fault for loss of data. However, I do not find that the said observation is unwarranted. Surely, the fault was not on the part of the respondent no.1 or the court. The petitioner has sought the opinion of the handwriting expert and has sent the matter to the said handwriting expert. Though the petitioner personally cannot be at fault, indirectly the petitioner was at fault and therefore the observation made by the trial court in that regard cannot be faulted with. The trial court was of the view that when the evidence of both the parties was about to complete, the petitioner had again wp3506-12.order applied for taking photographs of the reverse side of the document at exh. 34 and in that facts and circumstances of the case, the prayer made by the petitioner was unwarranted and unjustified, more so when the case did not revolve round the erased portion. The trial court is the best judge of the matter and as already stated herein above, knows how the parties are proceeding with the matter before it. Hence, with the limited scope for interference in exercise of the writ jurisdiction, I am unable to interfere with the impugned order, specially when, in my view the petitioner is trying to protract the proceedings filed against him for a recovery of rupees twenty two lakhs. In the result, the writ petition is dismissed with no order as to costs. Since it is an old matter and the suit is pending for a period of more than 7 years, on a request made on behalf of the respondent no.1, the trial court is directed to decide the suit as expeditiously as possible and positively within a period of four months from the next date of hearing. Order accordingly. Hirekhan JUDGE wp3506-12.order IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Writ Petition No 3506 of 2012 Vijay Hariramji Malani. -Vrs- Manoj Shrinivasji Soni ------------------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------- Mr. A.C. Dharmadhikari, learned counsel for the petitioner. Mr. S.V. Purohit, learned counsel for the respondent. Court's or Judge's Orders. CORAM : SMT. VASANTI A. NAIK, J. DATE : 18 th October, 2012. The counsel for the petitioner seeks leave to join the Civil Judge, Senior Division, Amravati as a party respondent to this petition. Leave is granted. The necessary amendment should be carried out forthwith. Mrs. Bodade, learned Assistant Govt. Pleader, waives notice on behalf of the newly added party respondent. JUDGE. Hirekhan