Partly allowed

Ganpatrao Shankarrao Gulave and Ors. v. the State of Maharashtra and Anr.

Bombay HC14 Sept 2010CAF/3352/2010

Case brief

AI extract

What is this about?

This Court allowed an application for leave to adduce additional documentary evidence under Order-XLI, Rule-27 CPC. The reference was dismissed on limitation grounds. Evidence regarding filing date and fee payment was allowed to be produced at the appellate stage to determine if the claim was barred.

What did the court decide?

Civil Application allowed; Judgment set aside; Matter remanded to Civil Judge for permit of additional evidence and fresh consideration.

Ganpatrao Shankarrao Gulave and Ors. Vs the State of… — Land Acquisition | Bombay HC (2010)

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caf-3352/10

srp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL APPLICATION NO. 3352 OF 2010 with FIRST APPEAL NO. 104 OF 2006

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Ganpatrao S. Gulve and ors. Versus

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The State of Maharashtra & Anr.

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..Applicants/Appellants.

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..Respondents.

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Mr. G. S. Godbole for the applicants/appellants. Mr. A. R. Patil, AGP for respondent no.1. Mr. G. S. Hegde for respondent no.2.

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Coram : SMT. RANJANA DESAI & R. V. MORE, JJ. Date : September 14, 2010.

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P. C. :

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Land Acquisition Reference No.328 of 1989 filed by the

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applicants/appellants was dismissed by the Civil Judge, Senior Division, Pandharpur by his order dated 28/2/2003. Reference was dismissed only on the ground that the claim of the applicants was not within limitation. First Appeal carried from the said order is admitted by this Court on 6/2/2006. This civil application is filed by the applicants praying that the applicants may be granted leave to adduce additional documentary evidence as per Order-XLI, Rule-27 of the Code of Civil Procedure, 1908 [for short “the Code”].

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We have heard Mr. Godbole, learned counsel for the applicants,

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Mr. Hegde, learned counsel for respondent no.2 and Mr. A. R. Patil,

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learned AGP for the State.

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Mr. Godbole submitted that the date of award is 17-9-1988. The date of service of notice issued under section 12(2) of the Land Acquisition Act, 1894 is 30-9-1988. The period of 6 weeks expired on 11-11-1988. Mr. Godbole submitted that reference was lodged on 3-11-1988 by affixing Court fee stamp of Re.1 only. On 17-11-1988 applicants paid the deficit Court fee. Counsel pointed out that the Reference Court has, upon consideration of the statement made by the applicant, in his cross-examination that he has presented the Reference alongwith Court fee stamp on 17-11-1988, drawn the conclusion that the Reference was filed on 17-11-1988. Counsel drew our attention to the certified copies of the extract of Register of References maintained under section 18 of the Land Acquisition Act, 1894, where the date of filing of Reference is shown as 3-11-1988. Counsel drew our attention to certain letters written by the Advocate for the applicants to the applicants stating that the Reference was filed on 3-11-1988 with deficit Court fee and calling upon the applicants to pay the deficit court fee before 17-11-1988. Counsel submitted that in any case in view of the fact that the Reference is dismissed on the ground of limitation it is absolutely essential that these documents are brought on record in the interest of justice and therefore the present application may be granted.

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Mr. Hegde, learned counsel for respondent 2 has strenuously opposed the grant of this application. He submitted that Order XLI, Rule-27 of the Code permits production of additional evidence only in certain circumstances noted therein. Counsel submitted that the applicants have not established that their case falls in any of the categories mentioned in clauses (a) (aa) or (b) of Order XLI, Rule 27(1) of the Code. He submitted that no case is made out by the applicants that notwithstanding the exercise of due diligence the evidence which the applicants wish to produce now could not be produced by them when the order dated 28/2/2003 was passed and therefore the application deserves to be dismissed.

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The applicants by the present application seek leave to adduce documentary evidence, namely, the copies of extract of Register of References issued to them on 22/6/2010 by the Special Land Acquisition Officer, Solapur and letter dated 4/11/1998 issued by their advocate by UPC. So far as the copies of extract of Register of References is concerned, it is stated that the same was received by the applicants on 22/8/2010 pursuant to their application for certified copies thereof. This averment is not denied by the respondents either by filing reply or at the time of oral arguments. The fact remains that the certified copies of extract of Register of References was received by the applicants after

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passing of the impugned judgment and award and during the pendency of the present First Appeal. The Register of References is maintained by the Special Land Acquisition Officer and therefore naturally the applicants were unaware of their existence nor were they in position to produce the same before the Reference Court. So far as the letters written by the applicants’ advocate are concerned, we find that the applicants are from rural area and they are unaware about the legal technicalities. The applicants’ entitlement to receive enhanced compensation is not at all disputed. The applicants’ reference is, however, dismissed only on the ground of limitation. In these facts and circumstances, we are of the opinion that there is substantial cause for allowing the applicants to adduce documentary evidence in the form of these letters also.

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The relevant documents which, we are inclined to allow the applicants to produce, go to the root of the matter to decide the question of limitation. The limitation is a mixed question of fact and law. A reference can be made to the Supreme Court decision in Narne Rame Murthy v. Ravula Somasundaram and ors (2005) 6 SCC 614 , in which in paragraph no.5, the Supreme Court has held as under :

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“... In cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove

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limitation must be pleaded, an issue raised , and then proved.”

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For this purpose the evidence has to be adduced by both parties in support of their respective contentions. The applicants, in order to prove that their reference is within limitation, are required to prove documents, which we are inclined to allow production of at appellate stage. This can be effectively done by adducing evidence. Of course, the respondents are entitled to cross examine the concerned witnesses in this regard. In the circumstance of the case, looking to the fact that the reference was dismissed only on the ground of limitation, in our opinion, the ends of justice would be met by passing following order.

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-: O R D E R :-

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(1) Civil Application is allowed in terms of prayer clause (b)

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(2) The judgment and award dated 28-2-2003 passed by the Civil Judge, Senior Division, Pandharpur in Land Reference No.328 of 1989 is set aside. The matter is remanded to the Civil Judge, Senior Division, Pandharpur.

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(3) The Civil Judge, Senior Division, Pandharpur is directed to permit the applicants to adduce additional documentary evidence. The Civil Judge, Senior Division, Pandharpur is further directed to permit the applicants and the respondents to lead evidence, if necessary.

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(4) The question of proof of documents is kept open.

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(5) The parties shall appear before the Civil Judge, Senior Division, Pandharpur on 4^th October 2010.

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(6) The entire exercise may be conducted within the period of 6 months from the date of receipt of this order by him.

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(7) We make it clear that we have not expressed any opinion on the merits of the case and more particularly as regards the adequacy of the compensation. The Civil Judge, Senior Division, Pandharpur is directed to consider the entire matter afresh and independently.

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(7) Record and proceedings be sent back immediately.

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Appeal as well as civil application are disposed of in the above terms.

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(R.V. More, J.) (Smt. Ranjana Desai,J.)

Ganpatrao Shankarrao Gulave and Ors. v. the State of Maharashtra and Anr.

Case brief

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Ganpatrao Shankarrao Gulave and Ors. v. the State of Maharashtra and Anr.

Case brief

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