Allowed

Ravindra Vasant Shinde (Legal Heir of v.G.Shinde) v. Narsinha Narayan Shirodkar and Ors.

Bombay HC4 Apr 2006WP/2170/2006

Case brief

AI extract

What is this about?

This order allows a writ petition to set aside the rejection of a summons application. The High Court held the trial court erred in assuming a report was already on record and in blocking summoning a witness to support a plea regarding the dilapidated condition of a structure, as the party cannot be stopped at the threshold from leading relevant evidence.

What did the court decide?

The rule is made absolute; the order rejecting the summons application dated 15.2.2006 is set aside; the court is directed to issue summons for the witness and production of the report.

Ravindra Vasant Shinde (Legal Heir of… — Civil Procedure and Limitation | Bombay HC (2006)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE SIDE

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 WRIT PETITION NO.2170 OF 2006

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 Ravindra Vasant Shinde

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 (legal heir of V.G.Shinde) .. Petitioner

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 Versus

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 Narsinha Narayan Shirodkar & ors .. Respondents

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 Mr.Ambar Joshi for petitioner

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 Mr.C.S.Joshi for respondents

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 CORAM : P.V.KAKADE, J.

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 DATE : 4th APRIL, 2006

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 P.C.:

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 1. Heard the learned counsel for both the parties.

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 Perused the record.

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 2. Rule, rule made returnable forthwith by consent.

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 3. The petitioner has challenged the order dated

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 15.2.2006 passed by the Joint Civil Judge, Senior

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 Division, Thane rejecting the application to seek witness
 summons in respect of the witness in support of his case,
 which was the order passed below Exh.167 in Misc.
 Application No.798/96.

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 4. By submitting the application the petitioner
 intended to examine one Jaysing Kumbhar as his witness on
 submission that his own witness has disclosed that the
 structure of the building was inspected by said Kumbhar
 in the year 1996 and gave opinion that the structure was
 in dilapidated condition. It was further submitted that
 the said Kumbhar had prepared report of inspection of the
 property and therefore, summons was sought for to produce
 the said report and to examine the said Kumbhar as
 witness of the petitioner. The other party challenged
 the application and after hearing both the parties the
 trial court was of the view that the report was submitted
 in the court already and therefore, it was not acceptable
 that the report was in custody of the said witness. The
 application was also rejected on the ground that the
 application is filed by the petitioner under Section 17
 of the Bombay Rent Act and therefore, it was held that
 the report or the evidence of which the opponent intended
 to lead is not sufficient for final adjudication of the

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 application. In my considered view, that the entire
 approach of the trial court is erroneous.

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 4. Firstly, it was to be noted that it is the party
 to decide how much evidence which should be presented
 before the court in order to support his contention
 sought to be established. Moreover, both the parties
 admitted that the report of the said Kumbhar is not on
 record and therefore, while passing the order the trial
 court had committed factual error by recording that the
 report is already submitted in the court and it is not in
 custody of witness and witness need not be summoned. The
 learned counsel for the respondent submitted that there
 was no mention of examination by intended witness Kumbhar
 of the property in the written statement and therefore,
 it would amount to introduction of a new case different
 from and not contained in written statement. In support
 of this submission the learned counsel for the respondent
 sought to put reliance of the Single Judge ruling of this

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 Court in Haren Krishnakumar Mehta vs. Kamla Pribhdas

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Nebhanani reported in 2001(2) ALl MR 67 wherein it was

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 held that defendant making a new case different from and
 not contained in written statement and therefore, under
 the circumstances the defendant cannot be permitted to

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 prove a new case without pleadings in that regard. On

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 perusal of the facts and circumstances involved in the
 said ruling, I have no doubt it is not applicable to the
 present case. Herein the petitioner is not trying to
 make out a new case but seek to shelter of his defence
 which is already taken in the written statement. It is a
 fact that he has come with the case that the suit
 structure was in dilapidated condition, which is also an
 evident position. Therefore, if the petitioner wants to
 lead further evidence in this regard, the party cannot be
 stopped at the threshold by summoning the witness for the
 said purpose. No doubt it is upon the court after
 examining such witness to appreciate the value of the
 evidence of the report as well as the witness and it is
 at liberty to discard it if it is found either it is
 admissible or irrelevant for the purpose of adjudicating
 the dispute on merits. However, party cannot be stopped
 from summoning the witness if it is obvious that evidence
 is sought to be brought on record is relevant for the
 purpose of effective adjudication of dispute between the
 parties. The court cannot shut its door at the threshold
 by holding that since the matter is under Section 17 of
 the Bombay Rent Act, the evidence would be of no use. It
 would be just and proper to the trial court to record its

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 finding on that point after recording of the evidence of
 the witness after summoning him on the request of the
 petitioner.

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 5. In the result, rule is made absolute. The

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 Petition is allowed in terms of prayer clause (a). The
 order passed by Civil Judge, Senior Division, Thane dated
 15.2.2006 below Exh.167 in Misc. Application No.798 of
 1996 is set aside. The court is directed to issue

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 summons for the evidence of the witness as well as
 production of the report on suitable date to be fixed and
 pursue with the matter according to law. With these
 directions the petition stands disposed of with no order
 as to costs.

Ravindra Vasant Shinde (Legal Heir of v.G.Shinde) v. Narsinha Narayan Shirodkar and Ors.

Case brief

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What did the court decide?

Ravindra Vasant Shinde (Legal Heir of v.G.Shinde) v. Narsinha Narayan Shirodkar and Ors.

Case brief

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