Petitioner filed a writ petition seeking to set aside a trial court order rejecting an application to produce certified measurements of a map. The High Court allowed the petition.
Set aside the impugned order dated 8.8.2007 and allowed the plaintiff's application (Exhibit 36).
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6406 OF 2007
Attmaram Laxman Waingankar ..Petitioner
versus
Shantabai Gopal Waingankar & Anr. ..Respondents
Mr. Chetan Agrawal for the Petitioner.
Mr. Sushil Matkar i/b. M/s. Corps Legal for the
Respondent Nos. 1 and 2.
CORAM : S. A. BOBDE, J.
DATE : 28TH JANUARY, 2008.
P.C.
1. Heard.
2. Rule. By consent, rule returnable forthwith.
3. Petitioner / Plaintiff is aggrieved by the
order dated 8.8.2007 of the Court below Exhibit 36
rejecting the application for producing the
certified measurements of a map which is already on
record. The learned trial court rejected the
application on the ground that there are no
pleadings to the effect that certified measurements
took place.
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4. I see no valid reason why the trial court
should have rejected the application. In this suit
for encroachment, a map drawn by T.I.L.R. was filed
along with the plaint. However, at the time of
evidence, the plaintiff thought it desirable to
produce the measurements on the basis of which map
was prepared and applied for the witness summons to
the T.I.L.R. for bringing measurements along with
the map. The plaintiff also produced a certified
copy of the measurements which were in his
possession. However, his application for taking the
measurements on record has been rejected on the
ground that there is no pleading to that effect. In
doing so, the learned trial court has lost sight of
the well established difference between the
pleadings and evidence. It should have been seen
that the measurements were produced as evidence of
the pleadings pertaining to encroachment and in
support of the map, which was already on record. In
the circumstances, the impugned order is liable to
be and is hereby set aside. Plaintiff’s
application, Exhibit 36 is allowed.
Rule answered accordingly.
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(S. A. BOBDE, J.)
1 issue framed by the court
Whether the trial court erred in rejecting an application to produce certified measurements of a map solely due to lack of specific pleadings.
Attmaram Laxman Waingankar
Shantabai Gopal Waingankar
S. A. BOBDE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court