Dismissed

Mr. Rushi M. Gandhy v. Shri. Pradeep Moreshwar Gupte

Bombay HC3 Jul 2014WP/2599/2014

Case brief

AI extract

What is this about?

This writ petition challenged a trial court order summoning a Taluka Inspector of Land Records as an additional witness in an encroachment suit. The High Court held the order was not infirm under CPC Rule 17A as the evidence was essential for ascertaining the truth and doing justice.

What did the court decide?

The writ petition was dismissed. The impugned order of the trial court allowing the witness summons was upheld.

Mr. Rushi M. Gandhy Vs Shri. Pradeep Moreshwar… — Civil Procedure and Limitation | Bombay HC (2014)

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WP-2599-2014 Thurs,3July,2014

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTON

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WRIT PETITION NO. 2599 OF 2014

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Rusi Gandhy …..Petitioner V/s. Pradeep Moreshwar Gupte …..Respondent

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Mr. Mohan Pungliya i/by. Mr. Abhishek Pungliya, Advocate for the petitioner.

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Mr. S.C. Wakankar, Advocate for the respondent.

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CORAM :- SMT. R.P. SONDURBALDOTA, J.

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3^rd July, 2014.

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P.C. :-

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1). The petitioner is the original defendant in Regular Civil Suit No. 1472 of 2010 pending in the Court of Civil Judge Junior Division, Pune. The suit is filed by the respondent for removal of encroachment on his property. After the evidence of both the sides in the suit was closed and the matter was posted for arguments, the respondent, plaintiff filed application at Exhibit-72 for issuing summons to Taluka Inspector of Land Records (“TILR” for short) in connection with the measurements

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taken by him vide no. 3057/2010 on 20^th August, 2010 of the property at survey no. 95/3. The petitioner had opposed the application with an argument that the application is nothing but an attempt to fill up lacunae in the evidence of the respondent and therefore the same should not be allowed.

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2). During the course of trial, the respondent had produced in evidence the report of TILR in respect of the measurements taken on 20^th August, 2010. The trial Court, had not exhibited the documents after considering the rival submissions thereon, with an observation that the documents could not be exhibited without the evidence of the TILR being recorded. While considering the application at Exhibit-72 the trial court disapproved in terms of the conduct on the part of the respondent, in not being duly diligent in moving the application at the appropriate time despite having sufficient opportunity. However, it allowed the application for following reasons :-

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“However, it must be noted that present suit is for removal of encroachment. In such matters, the TILR/the person who has carried measurement is the best witness to ascertain as to whether there is encroachment and what is quantum of encroachment. In absence of evidence of such person, the Court will be at difficulty to assess the issue of encroachment and quantum of encroachment. Though, the matter is fixed for arguments, the

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ultimate object of the trial is not to dispose off the case, but to ensure that justice is done. In the case of present nature, unless the person carrying out measurement is not examined, the truth cannot be brought on record and consequently, justice may not be ensured. Therefore, though the plaintiff at the stage of his evidence failed to examine the said witness and failed to mention the reason for said failure, in order to meet the ends of justice, it is just and proper to issue witness summons as prayed.”

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The trial Court allowed the application by imposing costs upon the respondent and making the payment of costs as condition precedent for issuance of witness summons to Taluka Inspector of Land Records.

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3). Mr. Pungliya, the learned Advocate appearing for the petitioner submits that the trial Court could not have allowed the application, unless there was material on record to show that the evidence sought to be produced subsequently was either not known to the respondent or the same could not be produced inspite of due diligence. He relies upon the decision of the Apex Court in the case of Salem Advocate Bar Association, T.N. Versus. Union of India, reported in (2005) 6 SCC page 344, wherein the Apex Court amongst several other amended provisions of Civil Procedure Code (“CPC” for short), considered deletion of Order 18 Rule 17 from CPC which provided for leading of additional evidence. While holding that the deletion made no difference whatsoever as regards leading of additional evidence, it observed that

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even before insertion of Order 18Rule 17-A, the Court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced inspite of due diligence. Order 18 Rule 17A did not create any new right but only clarified the position. Therefore, deletion of Order 18 Rule 17-A does not dis-entitle production of evidence at a later stage. On a party satisfying the Court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence the Court may permit leading of such evidence at a later stage on such terms as may appear to be just.

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4). In the facts and circumstances of the case, the decision cited by Mr. Pungliya cannot be applicable because the order has been passed not just for the convenience of the respondent. The trial Court is of the opinion that while deciding the matters of allegations of encroachment, the evidence of TILR would be the best evidence and that evidence would assist the Court in arriving at the correct decision in the matter, so as to do justice. In the circumstances, there is no infirmity whatsoever in the impugned order. The petition is therefore dismissed in limine.

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(SMT. R.P. SONDURBALDOTA, J)

Mr. Rushi M. Gandhy v. Shri. Pradeep Moreshwar Gupte

Case brief

What is this about?

What did the court decide?

Mr. Rushi M. Gandhy v. Shri. Pradeep Moreshwar Gupte

Case brief

What is this about?

What did the court decide?

What the court decided

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