Bombay High Court
Baliram S/O Sitaram Balkote vs Arjun S/O Tukaram Kathoke on 11 February, 2016
Author: Prasanna.B.Varale
Bench: Prasanna.B.Varale
1 wp3519.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3519 OF 2015
Baliram Sitaram Balkote,
aged about 63 years, Occupation
Agriculturist, R/o Nandanwan,
Near KDK College, Nagpur. ... PETITIONER
VERSUS
Arjun Tukaram Kathoke,
aged 38 years, Occupation
Agriculturist, R/o Mahadula,
Ramtek, Tahsil Ramtek,
District Nagpur. ... RESPONDENT
....
Shri H.S. Chitaley, Advocate with Shri N.A. Gaikwad, Advocate for the
petitioner.
Shri M.B. Naidu, Advocate for the respondent.
....
CORAM : PRASANNA.B.VARALE, J.
DATED : 11TH FEBRUARY, 2016.
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard the petition finally with the consent of the learned Counsel appearing on behalf of the respective parties. Shri M.B. Naidu, the learned Counsel waives notice on behalf of the respondent sole.
2. By way of present petition, the petitioner challenges the order ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:43:56 ::: 2 wp3519.15 dated 01.04.2015 passed by the learned Civil Judge, Junior Division, Ramtek in Regular Civil Suit No. 39/2009. The controversy being limited one, it may not be necessary to give the detail summary of the facts.
3. Suffice to say that the petitioner who is the plaintiff filed a suit in the Court of the learned Civil Judge, Junior Division, Ramtek seeking declaration, possession and permanent injunction. The suit proceeded further. An application was filed at the instance of the plaintiff/petitioner seeking leave to adduce rebuttal evidence. Copy of the same is placed on record at "Annexure-D". It is submitted in the application that the issues are framed and the Hon'ble Court cast the burden to prove on both the parties. The defendant would adduce the evidence in support of his case.
As per the procedure, the plaintiff started evidence and closing his side on the day of the application i.e. 10.09.2014. The plaintiff prayed leave of the Court to adduce rebuttal evidence on behalf of the plaintiff after the defendant completes his evidence. It was submitted in the application that if such leave is not granted, prejudice would be caused to the plaintiff/petitioner. A pursis summarizing the ground in the application was also filed. The application was posted seeking say of the defendant on 03.11.2014. The learned Civil Judge, in absence of the learned Counsel for the plaintiff/petitioner, only on hearing the learned Counsel for the defendant, rejected the application. The petitioner/plaintiff immediately filed an application seeking review. It was submitted in the application ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:43:56 ::: 3 wp3519.15 seeking review that the absence of the learned Counsel for the plaintiff/petitioner was for peculiar circumstances. It was submitted that the plaintiff/petitioner is in advanced age and facing health issues. He was unable to attend the Court on 03.11.2014. The learned Counsel for the plaintiff/petitioner on the very day could not attend the Court till 01:30 p.m. as the father of the Counsel was suffering from abdominal dyspepsia along with left sided inguinal hernia. As the doctor at Nagpur advised the Counsel for the plaintiff for immediate surgery of his father, the learned Counsel for the plaintiff/petitioner attended the Court at 01:30 p.m. and then left the Court immediately for making necessary arrangements as the surgery of the father of the learned Counsel was fixed on the very next day i.e. on 04.11.2014. It was submitted in the application that the Counsel though attended the Court at 01:30 p.m., it was informed to the Counsel that the matter was fixed for seeking say of the defendant and as the say was not filed till that time, the Counsel was under an impression that the other side may seek an adjournment. As the father of the learned Counsel for the plaintiff was carrying a precarious health condition and the Counsel had to make necessary arrangements as per the advice of the doctor, the Counsel left the Court and was busy in making the necessary arrangements of hospitalization etc. The application filed by the plaintiff/petitioner was opposed by the defendant/respondent. The learned Court on the ground that the order passed by the Court below Exh.72 is an interlocutory order and there is no procedural illegality, ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:43:56 ::: 4 wp3519.15 rejected the application.
4. Shri Chitaley, the learned Counsel for the petitioner submits that the learned Court below ought not to have adopted a technical approach. The intention of the petitioner expressed in the application was for seeking leave to adduce rebuttal evidence. A pursis was also filed to that effect. The petitioner was under an impression that as the say of the defendant was not filed till 03.11.2014 and the Counsel who attended the Court at 01:30 p.m. was under impression that as the say was not filed, there may be some adjournment. For a bona fide reason that the father of the Counsel of the plaintiff was requiring immediate medical attention and treatment, left the Court. The submission of Shri Chitaley, the learned Counsel for the petitioner is that an opportunity ought to have been granted to the petitioner of hearing on the application submitted by the plaintiff. It is submitted by the learned Counsel for the petitioner that it was specifically submitted in the application that if no leave is granted to the petitioner to adduce rebuttal evidence, a serious prejudice would be caused to the plaintiff/petitioner. The learned Counsel thus submits that the order impugned in the present petition be set aside and the petitioner may be granted an opportunity of hearing and the Court below be directed to decide the application on hearing the petitioner in stead of rejecting the application on the ground of absence of the learned Counsel for the plaintiff which was a justifiable ground.
::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:43:57 :::5 wp3519.15
5. Shri Naidu, the learned Counsel for the respondent fairly submits that the ground raised is of the personal difficulty of the counsel and it was stated in the application seeking review that because of the ill health of the father of the Counsel for the petitioner, the learned Counsel was busy in making the necessary arrangements and as such was unable to attend the Court on 03.11.2014.
6. Considering all these aspects, in my opinion, there is merit in the submission of the learned Counsel for the petitioner that the application ought not to have been rejected on hyper technical ground and the opportunity was required to be granted to the petitioner/plaintiff of hearing.
7. In the result, the petition is allowed. The orders passed by the Court below dated 03.11.2014 and 01.04.2015 are quashed and set aside.
The learned Civil Judge, Junior Division, Ramtek is directed to decide the application filed by the plaintiff seeking leave to adduce rebuttal evidence by giving an opportunity of hearing to the concerned parties i.e. the petitioner and the respondent. Both the learned Counsel for the respective parties submit that the suit is being pretty old, the application as well as the suit be decided within a time frame. Though the request is made for direction to decide the suit and the application within time frame, in my ::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:43:57 ::: 6 wp3519.15 opinion, it will not be appropriate to fix the time frame to the learned Civil Judge but the interest of justice can be met by directing the learned Civil Judge to decide the application as well as suit as early as possible. The petition is allowed. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE *rrg.
::: Uploaded on - 12/02/2016 ::: Downloaded on - 31/07/2016 04:43:57 :::