Bombay High Court
Arun S/O Wasudeo Deshmukh And Others vs Ashok S/O Wasudeo Deshmukh on 29 April, 2016
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
1 WP6402.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6402 OF 2015
PETITIONER : 1] Arun S/o Wasudeo Deshmukh,
Aged about 66 years, Occu. Nil.
2] Arundhati W/o Arun Deshmukh
Aged about 57 years, Occu. Nil
3] Amit S/o Arun Deshmukh,
Aged about 35 years, Occu. Service,
ig 4] Sonali W/o Amit Deshmukh,
Aged about 30 years, Occu. Nil.
All the respondents are resident of Ground floor,
plot no.42, Line No.'O', PMG's Office Staff
Co-operative Housing Society Ltd.,
Madhav Nagar, Nagpur.
- VERSUS -
RESPONDENT : Ashok S/o Wasudeo Deshmukh,
Aged about 62 years, Occu. Service,
R/o plot no.42, Line No.'O', PMG's Office Staff
Co-operative Housing Society Ltd.,
Madhav Nagar, Nagpur.
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Mr. Alok Daga, Advocate for the petitioners.
Mr. V. S. Dhobe, Advocate for the respondent
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CORAM : PRASANNA B. VARALE, J.
DATE : APRIL 29, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, the petition is heard finally at the ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 ::: 2 WP6402.15.odt stage of admission itself.
2] By the present petition, the petitioners challenge the orders dated 28.082014 passed by the learned District Judge-13, Nagpur and 30.07.2015, passed by the learned District Judge-9, Nagpur, in Regular Civil Appeal No. 67/2013.
3] Brief facts giving rise to the present petition can be summarized as follows :
The petitioners are the original defendants in civil suit bearing Special Civil Suit NO. 901/2007, filed by the present respondent/plaintiff for ejectment and possession of the property situated at Plot no.42, Line No.'O', PMG's Office Staff Co-operative Housing Society Ltd., Madhav Nagar, Nagpur. The petitioner no.1 is the real brother of the respondent. The trial Court, by the judgment and order dated 03.12.2012 allowed the civil suit and the same was decreed in favour of the respondent/plaintiff. Being aggrieved by the said judgment and decree, an appeal bearing Regular Civil Appeal No. 67/2013 was preferred by the present petitioners before the learned District Judge, Nagpur. An interim order granting stay on certain conditions was passed by the learned District Judge. It is the case of the ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 ::: 3 WP6402.15.odt petitioners that during pendency of the appeal, the petitioners came to know about a Will Deed executed in favour of the petitioner no.1. The Will Deed was in the custody of Advocate Shri Agasti and the same was notarized by Notary Shri D.K. Dubey, Advocate. Accordingly, the petitioners/appellants filed an application (Exh.20) seeking amendment to the written statement and another application (Exh.21) seeking permission to file documents on record i.e. photo copy of the Will Deed, which was received from the Notary Shri Dubey, Advocate. The applications were opposed by the present respondent. The learned District Judge-13 rejected the application for amendment (Exh.20), by order dated 25.07.2014 on the ground that the same was filed at a belated stage. The application (Exh.21) seeking permission to file the documents on record was also rejected, by order dated 28.08.2014. The petitioners challenged the order dated 25.07.2014 by filing writ petition in this Court i.e. Writ Petition No. 5007/2014. The petition was dismissed by the judgment and order dated 28.01.2015. The petitioners/appellants then again filed an application (Exh.32) seeking permission to lead evidence on the same ground that the they were unaware that a Will Deed was executed in favour of the petitioner no.1.
Another application (Exh.32) was filed by the petitioners seeking permission to file documents on record and setting aside the order ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 ::: 4 WP6402.15.odt dated 28.08.2014 below Exh.21. The learned District Judge-9 rejected the application (Exh.30) by order dated 07.07.2015. The learned District Judge-9 also rejected the application Exh.32 seeking permission to file the documents. The petitioners then filed an application seeking review of the order dated 07.07.2015 below Exh.30. By this petition, the petitioners challenge the orders dated 28.08.2014 and 30.07.2015, thereby rejecting the applications seeking permission to file documents on record.
4] Mr. Daga, the learned counsel for the petitioners submitted that the lower Appellate Court has failed to appreciate the fact that as the petitioners have preferred an appeal, challenging the judgment and decree and in that appeal, the applications were filed by the petitioners seeking permission to lead evidence and to place on record the documents. The learned counsel further submitted that the lower Appellate Court ought to have exercised its power under Section 107 of the Code of Civil Procedure. It is the submission of the learned counsel that the Appellate Court was required to exercise the powers as of the original Court and the Court failed to appreciate the fact that by allowing the application for placing documents on record, the petitioners could have an opportunity of proving the documents by ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 ::: 5 WP6402.15.odt leading evidence and no prejudice would have been caused to the respondent. The learned counsel for the petitioners placed reliance on the following judgments -
1] 2006 (6) Mh.L.J. 427 (Chitrakala Fal Dessai .vs. Balu Marathe alias Mane Jyotiba Marathe) 2] AIR 2010 SC (Supp) 86 (Jabalpur Development Authority .vs. Shrivastava and another) 3] 2005 AIR (SC) 996 (Adil Jamshed Frenchman(D) by Lrs .vs. Sardar Dastur Schools Trust.) 4] 2007 (1) Mh.L.J. 439 (Sraswati Education Society, Dist. Gondia and another .vs. Santosh Bhaulal Rahangdale) 5] 2006 (2) Bom.C.R. 785 (Pandurang D. Dodke .vs. Lanka P. Kshirsagar.
6] 2011(1) Mh.L.J. 825 (Balbhim Sakharam Magar .vs. Sonbaba Sidharam Mane and another) 5] Per contra, Mr. Dhobe, the learned counsel for the respondent vehemently submitted that the attempt of the petitioners is nothing but to prolong and protract the proceedings. The learned counsel submitted that in the first attempt itself, the petitioners failed before the trial Court. The earlier application was filed for the same ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 ::: 6 WP6402.15.odt prayer. The application was rejected and the order was challenged before this Court in a writ petition. The learned counsel for the respondent submitted that this Court while dismissing Writ Petition No. 5007/2014 observed that the Will is being used as an evidence in support of plea that sale-deed dated 31.10.1995 is void. Obviously, it is a matter of evidence and not a matter of pleading. It is submitted by the learned counsel for the respondent that the observations of this Court no way can be treated as an liberty granted to the petitioners to file another application for the same purpose, when the earlier application was rejected and the order of rejection was maintained by this Court. The learned counsel for the respondent further submitted that the petitioners, whose earlier application was rejected in year 2014, after lapse of sufficient time, have filed writ petition before this Court and though, the petitioners could not have filed the subsequent application raising the very grounds, again approached the Appellate Court. According to the learned counsel, the petitioners are only trying to delay the proceedings. Apart from the merits, the petitioners also by suppressing certain material facts, are approaching the Court. It is further submitted that though, the petitioners made an attempt to submit that the contest is only between the petitioner no.1 and the respondent i.e. original plaintiff, who are the real brothers, there is ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 ::: 7 WP6402.15.odt sufficient material on record to show that apart from the respondent, there are other heirs. The learned counsel for the respondent also raised a ground to submit that the so called Will Deed, on which the petitioners want to place reliance, cannot be accepted on various grounds. It is submitted by the learned counsel that the case of the petitioners is that it came to their knowledge that a Will Deed was prepared by deceased Dattatraya Deshmukh and it was notarized by one Advocate Shri D.K. Dubey and was in the custody of Advocate Shri Agasti. The learned counsel for the respondent submitted that as per the submission of the learned counsel for the petitioners, the Notary Shri Dubey, Advocate used to keep photo copy of Will Deed with him and original copy of the Will Deed was in the custody of Advocate Agasti. The learned counsel for the respondent submitted that firstly the Will Deed on which the petitioners are placing reliance, is a notarized Will Deed and the Notary could not have maintained a photo copy of the Will Deed with him. By adopting such practice, the Notary has committed breach of secrecy of the said document namely Will Deed. He further submitted that the petitioners, in the application nowhere states about when the knowledge was received by them about the so called Will Deed from Advocate Shri Agasti. It is also not stated by the petitioners that what attempts were made by them to collect the ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 ::: 8 WP6402.15.odt copy of the so called Will Deed from Advocate Shri Agasti. It is the submission of the learned counsel for the respondent that the petitioners were placing an erroneous reliance on the provisions of Section 107 of the Code of Civil Procedure. It was the submission of the learned counsel for the respondent that the petitioners could not have sought recourse to section 107 of CPC, but the application could have been considered in view of the provisions of Order 41 Rule 27 of the CPC. It is the submission of the learned counsel that the petitioners wanted to place on record additional evidence in the appeal. It was for the petitioners to satisfy the Court about the contingencies of Order 41 Rule 27 of CPC. As the petitioners failed to satisfy any contingency required under Order 41 Rule 27, they could not have taken recourse to Section 107 of CPC to submit that the Appellate Court possessing same powers of the original Court. The learned counsel for the respondent placed reliance on the following judgments :
1] 2012 (6) Mh.L.J. 176 (Ashabai w/o Ramchandra Kotecha and others .vs. Mohanlal bhika Badode (died) thru his LR Smt. Munnabai Mohanlal and others) 2] 2009 (6) Mh.L.J. 183 (Bhagwan Natthu Kale (since deceased) through Lrs Santosh Bhagwan Kale and others .vs. Krishna Sadashiv Kale and others) 3] 2012 (5) ALL M R 462 (S.C.) (Union of India .vs. Ibrahim Uddin and another) ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 :::
9 WP6402.15.odt 4] 2012 (3) ALL M.R. 470 (S.C.) (Mahesh Kkumar (dead) by Lrs .vs. Vinod Kumar and others) 6] Mr. Dhobe, the learned counsel for the respondent also invited my attention to the oral testimony of the respondent and the admission in the cross-examination that deceased Dattatraya Deshmukh, the uncle of the plaintiff/petitioner, was financially self-
sufficient. It was the submission of the learned counsel for the respondent that the petitioners have not challenged the Will Deed, which was in favour of the respondent and on the basis of which, the judgment and decree of the trial Court was passed. It is also the submission of the learned counsel for the respondent that the alleged Will Deed, which is in favour of the petitioners, cannot be accepted for the reason that the executant of the Will Deed was at a very advanced age and on the backdrop of the Will Deed, which is a registered one in favour of the respondent, the notarized Will Deed on which the petitioners want to place reliance, looses its efficacy. It was the submission of the learned counsel in view of the reported judgment of the Apex Court in Mahesh Kumar .vs. Vinod Kumar (supra) that in case of multiple Will Deeds, the last Will Deed will prevail and the last Will Deed in the present case is a registered Will Deed executed in favour of the respondent.
::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 :::10 WP6402.15.odt 7] I have heard the learned counsel for the parties at length and also I have gone through the material placed on record. On a perusal of the material, it reveals that the first application for amendment in the written statement was filed by the petitioners on 26.06.2014. It was submitted in the application that on an enquiry conducted by the petitioners, it came to their knowledge that prior to death of his uncle Dattatraya Deshmukh, he had called Advocate Shri Agasti 2-3 times and Advocate Shri Dubey. On approaching Advocate Shri Dubey, he stated that he has notarized a Will Deed of Mr. Dattatray Deshmukh on 15.08.2005 and as per his regular practice he keeps one photo copy of the will deed in his custody. The petitioners then requested to handover one photo copy of the said will deed dated 15.08.2005. It was stated that Shri Agasti, Advocate who has drafted the Will Deed, kept the original will in his custody and the same was notorized before Shri D.K. Dubey, Advocate. On these submissions, the application was filed for amendment to the written statement. On the very day, other application was filed for grant of permission to file documents. A copy of the said application is placed on record at 'Annexure-H'. Perusal of the said application shows that the application is as vague as it could be as there is not even basic material for seeking permission to file the documents such as nature of document and the ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 ::: 11 WP6402.15.odt subsequent events/grounds for seeking permission to file documents.
A photo copy of the document titled as 'last will deed' is placed on record at 'Annexure-I'. The respondent/original plaintiff opposed the application by filing his say. The learned District Judge-13, with the well reasoned order, rejected the application. The another application seeking permission to file the documents on record namely the Will Deed, dated 25.02.2005 was also rejected.
8] Perusal of the order of this Court in Writ Petition No. 5007/2014 shows that this Court could not find favour with the present petitioners who were also the petitioners in W.P. No. 5007/2014. The petitioners again by raising same grounds, submitted subsequent application by referring that as the writ petition was dismissed by this Court observing that it is a matter of evidence and not a matter of pleading, it would be necessary to grant permission to the petitioners/applicants to produce additional evidence by further permitting to examine the witnesses namely Advocate Agasti, Advocate Dubey, Mr. M.J. Narale and P.G. Borikar. The petitioners also filed application seeking permission to file documents and setting aside the order dated 28.08.2014. The learned District Judge, on considering the ground raised in the application as well as the order passed by this ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 ::: 12 WP6402.15.odt Court in Writ Petition No. 5007/2014, arrived at a conclusion that it is the attempt of the petitioners to take back door entry by moving an application without having any cogent reason and accordingly rejected the applications, by orders dated 07.07.2015 and 30.07.2015, respectively. The learned District Judge also observed that the earlier order passed by the Court, rejecting the application for production of the document on record, reached finality in view of dismissal of the writ petition.
9] There is merit in the submission of the learned counsel for the respondent that the attempt of the petitioners is not only meritless, but also an attempt to prolong the proceedings. The learned counsel for the respondent invited my attention to the various applications seeking adjournment, placed on record along with the submissions on behalf of the respondent. The documents are also placed on record to suggest that the respondent is possessing two registered documents in his favour namely a Sale Deed and a Deed of Gift, dated 25.08.2005.
There is also merit in the submission of the learned counsel for the respondent that the so called Will Deed, on which the petitioners are placing heavy reliance, cannot be accepted on the very ground submitted by the petitioners themselves. It is the submission of the ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 ::: 13 WP6402.15.odt petitioners that about the said Will Deed, the knowledge was received from Advocate Shri Dubey and Advocate Shri Agasti. The learned counsel for the petitioners relied on the note endorsed on the copy of the said document titled as "last will deed", which reads that - "I have drafted this deed as per instructions of Shri D. S. Deshmukh. I know him personally as well as the witnesses named above who have signed in my presence." It further reads that "Original will is sealed in envelope and kept with Mr. M. B. Agasti, Advocate, 35, Madhav Nagar, Nagpur." This note is endorsed by the Notary. Firstly, in the note of the Notary, there is no reference that any photo copy of the Will is maintained by the Notary, but it is stated that the original will is sealed in envelope and kept with Mr. Agasti. There is also merit in the submission of the learned counsel for the respondent that the ground raised by the petitioners that Advocate Mr. Dubey informed that he had maintained photo copy of the Will deed as per his regular practice, cannot be accepted as it would loose the secrecy of the document Will Deed and the the Notary as a regular practice cannot keep photo copies of the Will in his custody. There is also merit in the submission of the learned counsel for the respondent that there cannot be any dispute that in view of the provisions of Section 107 of the C.P.C., the Appellate Court exercises the powers of original Court, but for a claim of an additional ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 ::: 14 WP6402.15.odt evidence in appeal, the petitioners were required to satisfy the contingencies of Order 41 Rule 27 of the CPC.
10] In view of all the above referred aspects, in my opinion, the petition is wholly meritless and the same deserves to be dismissed. The petition is accordingly dismissed.
Considering the fact that the parties to the proceedings are in their advanced age and the proceedings were reached at various levels including this Court, the prayer of the learned counsel for the respondent that the direction be given to the lower appellate Court to decide the appeal within the stipulated time is worth consideration.
Though it will not be appropriate for this Court to fix the time frame to the appellate Court, this Court hopes and trusts that the lower appellate Court will decide the appeal as expeditiously as possible.
Rule discharged. No order as to costs.
JUDGE Diwale ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:15:35 :::