(31)-WP-8804-22.doc.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.8804 OF 2022

United Spirits Limited

..Petitioner

Versus

Haresh Chuharmal Chandiramani

..Respondent

Mr. Mayur Khandeparkar a/w Vijay Purohit & Samkit Jain i/by P &

A Law Offices, for the Petitioner.

Mr. Asad Bukhari, for the Respondent.

`

CORAM : NITIN W. SAMBRE, J.

DATE : 20^th AUGUST, 2022

P.C.

1.

After the eviction suit being TE & R Suit No.369/390 of

2001 was decreed, proceedings for mesne profits were taken out. In

the said proceedings, DW-2 was in the witness box. Trial Court has

discarded his evidence to the extent of report authored by him on

the ground that earlier witness i.e. DW-1 – Shrivardhan Sunil

Deshpande in his cross-examination has admitted that no architect

ever was appointed.

2.

The said order is under challenge which is passed on

18^th June, 2022.

3.

Counsel for the petitioner Mr. Mayur Khandeparkar

while assailing the said order would urge that the Court below has

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BALAJI

GOVINDRAO

PANCHAL

Digitally signed by

BALAJI GOVINDRAO

PANCHAL

Date: 2022.09.06

17:06:05 +0530

(31)-WP-8804-22.doc.

committed an error of procedural law, as the document ought not to

have been discarded merely on the ground of same being not

admitted by the earlier witness i.e. DW-1. According to him, DW-2

author of the document has proved the same, the Court is left with

no other option but to exhibit the same. According to him, validity

of the said document can be gone into at the time of analyzing the

evidence.

4.

Counsel for the respondent/decree-holder would

support the order impugned and urge that witness DW-1 has never

deposed that Architect had prepared any valuation report. His

further contention is that once DW-1 has come out with such case in

his evidence that architect was never appointed, the Court was

justified in rejecting the contention for exhibiting the report. He

would urge that the issue of proving of contents of documents can

be gone into at the time of final hearing of the suit.

5.

I have appreciated the submissions.

6.

With the assistance of learned counsels, I have perused

the examination-in-chief of DW-2 – Amol Bora, who in paragraph 5

of the examination-in-chief has specifically mentioned about

drawing of Valuation Report dated 1^st November 2021.

7.

Once he has come with such claim on oath, it was

expected of the Court to exhibit the said document without going

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into appreciating the merits, evidentiary value of the such

document. Such appreciation of document on merits can be looked

into at the stage of final hearing of the proceedings and not at this

stage. The Court below while rejecting the prayer for exhibiting the

document has looked into the contradictions from the testimony of

DW-1 and DW-2 which in any case is not permissible. Once the

author of report DW-2 has proved the report, the Court below ought

to have exhibited the same.

8.

As such, the order impugned to the aforesaid extent

passed on 18^th June, 2022 is hereby quashed and set aside. The

document at Sr. No.1 being Valuation Report dated 1^st November,

2021 is directed to be exhibited.

9.

However, it is clarified that in view of submissions of Mr.

Asad Bukhari, counsel for respondent, it is clarified that merely

exhibiting the document does not mean proving the contents

thereof, as same is an independent issue. Apart from above, all the

contentions of the respondent to the admissibility of the evidentiary

value of such document is kept open to be gone into at the stage of

final hearing of the proceedings.

10.

The petition as such stands allowed to the aforesaid

extent.

11.

Counsel for the respondent invites attention of this

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Court to the fact of pendency of the mesne profits proceedings for

last