Partly allowed

Shri. Hari Shridhar Athawale v. Pune Municipal Corporation and Anr.

Bombay HC30 Nov 2023WP/663/2016

Case brief

AI extract

What is this about?

High Court quashed Trial Court orders rejecting Plaintiff's applications to lead further evidence and produce documents. Court permitted Plaintiff to lead evidence, allowed Corporation to cross-examine or lead evidence, and directed Trial Court to decide the pending suit within six months.

What did the court decide?

Impugned orders quashed. Applications allowed. Plaintiff permitted to lead further evidence. Trial Court directed to decide suit within six months.

Shri. Hari Shridhar Athawale Vs Pune Municipal… — Municipal and Town Planning | Bombay HC (2023)

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16-wp663-2016.doc

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AGK

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.663 OF 2016

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Digitally signed by ATUL ATUL GANESH GANESH KULKARNI KULKARNI Date: 2023.11.30 16:30:08 +0530

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Hari Shridhar Athawale… Petitioner
V/s.

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Pune Municipal Corporation & Anr.… Respondents

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Mr. Siddharth C. Wakankar for the petitioner.
Mr. Rajdeep S. Khadapkar for respondent No.1.

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CORAM:AMIT BORKAR, J.

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DATED:NOVEMBER 30, 2023

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P.C.:

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1.The petitioner/original plaintiff is challenging orders dated 5
January 2015 and 9 December 2015 passed by the Trial Court
rejected petitioner’s application seeking permission to lead further
evidence.

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2.The petitioner filed Regular Civil Suit No.1194 of 2005
challenging notice issued purportedly under Section 258 of the
Bombay Provincial Municipal Corporation Act, 1949 read with
Section 51 of the Maharashtra Regional and Town Planning Act,
1966 revoking commencement certificate and suspending
completion certificate. According to the petitioner, the defendant/
Corporation sanctioned plan on 16 October 1995. However, on a
complaint filed by the adjoining owner, notice purportedly under

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Section 258 of the Bombay Provincial Municipal Corporation Act,
1949 was issued.

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3.The Corporation contested the suit by filing written
statement. According to the Corporation, the plaintiff suppressed
pendency of suit filed by the tenant and permission was obtained
by misrepresentation.

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4.The petitioner initially filed affidavit in lieu of examination-
in-chief. The respondent cross-examined the petitioner. However,
according to the petitioner he received documents having vital
importance and, therefore, prayed for recall of ‘evidence closed’
order passed against the petitioner.

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5.The Trial Court by the impugned order rejected the
application holding that the petitioner failed to lead further
evidence on earlier occasions. The suit was filed in the year 2005
and the plaintiff being negligent is not entitled to lead further
evidence.

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6.The petitioner also filed an application below Exhibit-91
seeking permission to produce documents. The Trial Court rejected
the application.

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7.On perusal of the impugned orders, it appears that the
controversy involved in the suit is as to whether the notice issued
by the Municipal Corporation and the action of revocation of
commencement certificate on the ground of misrepresentation
would be illegal. The burden is obviously on the plaintiff.
Therefore, considering the nature of dispute, it would be in the
interest of justice that the plaintiff be given opportunity to lead

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relevant evidence in support of his case. However, since the
plaintiff intends to lead further evidence, the Municipal
Corporation deserves to be given opportunity to meet the evidence
adduced by the plaintiff by way of cross-examination, and if
required by leading their evidence.

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8.The petitioner being plaintiff no prejudice would be caused
to the defendant if the petitioner is permitted to lead further
evidence.

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9.Learned advocate for the Municipal Corporation placed
reliance on the judgment of the Apex Court in Madanlal v.
Shyamlal reported in (2002) 1 SC 535. The Apex Court in the said
case was considering validity of an order rejecting prayer of the
plaintiff to produce documents on record. In the context of said
fact, the Apex Court observed that in the facts of the case, cause
shown by the appellant was not a good cause as contemplated
under Order 13 Rule 1 of the Code of Civil Procedure, 1908.

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10.In the facts of the present case, considering the nature of
rights involved, and in particular the construction carried on by the
plaintiff, in my opinion, the plaintiff needs to be given opportunity
to adduce admissible evidence in support of his case. Hence,
following order:

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a)The impugned orders dated 5 January 2015 and 9
December 2015 passed on applications below Exhibits 88, 90
and 97 are quashed and set aside;

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b)Applications below Exhibits 88, 90 and 97 are allowed;

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c)The petitioner is permitted to lead further evidence.
The respondent/Corporation shall be entitled to cross-
examine the plaintiff, and if necessary the Municipal
Corporation is permitted to lead evidence.

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d)Considering that the suit is pending since 2005, the
Trial Court shall decide the suit within six months from
today.

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11.With this clarification, the writ petition stands disposed of.
No costs.

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(AMIT BORKAR, J.)

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Shri. Hari Shridhar Athawale v. Pune Municipal Corporation and Anr.

Case brief

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Shri. Hari Shridhar Athawale v. Pune Municipal Corporation and Anr.

Case brief

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