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GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4*

[Spl.-H.C.,A.S.,C.D.79e.

FARAD CONTINUATION SHEET No.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION No. 5298/2008.

(Shriram Arjun Ambalkar and others . ....vrs.... Namdeo Arjun Nikhade and others )

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Office Notes, Office Memoranda of Coram

appearances, Court's orders or Directions

Court's or Judge's Orders.

And Registrar's Orders.

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CORAM : B.P.DHARMADHIKARI, J.

DATED : DECEMBER 17, 2008.

Heard

Advocate

Shri

N.R.

Saboo,

for

Petitioners/defendants.

Contention of petitioners/defendants is that

the respondents/plaintiffs did not move all necessary

applications simultaneously.

First Vide Exh.64 he

sought to produce certified copy of sale deed dated

19.10.1977 on record and certified copy was allowed

to be produced.

Thereafter vide Exh.74 he placed

original on record and by a reasoned order dated

31.07.2008 the original sale deed was taken on

record, it was exhibited and opportunity was given to

both the parties to argue about the admissibility of

contends of that sale deed at the final argument stage

in the suit.

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Advocate Shri Saboo, states that thereafter

Exh.78 came to be moved by which the plaintiffs

sought permission to lead additional evidence in

relation to said sale deed and though it was strongly

opposed by pointing out the above position, the Court

below has by the impugned order granted that

permission. It is urged that this is nothing but filling

in

lacunae

and

though

earlier

orders

were

not

challenged it is practically a reopening or review of

the order dated 31.07.2008.

The sequence of events above show that the

sale deed was accepted on record and it was also

exhibited.

As at the relevant time there was no

evidence

about

contents

of

that

document,

the

question whether contents in the evidence can be read

was kept open, because the document was 30 years

old.

However, it appears that thereafter plaintiffs

found it proper to lead additional evidence in relation

to that document and as the document was already

taken on record and exhibited, the Court below found

it proper to grant him that opportunity.

It is to be

noted that the petitioners/defendants has yet not

adduced any evidence in defence, though the plaintiff

has examined himself and his two witnesses.

It is apparent that in these circumstances,

after

plaintiffs

leads

additional

evidence,

the

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defendants get opportunity to cross examine those

witnesses and also to lead evidence in defence

inrelation to said document.

The contentions of

Advocate Shri Saboo, that all this could have been

done simultaneously is well founded,but that cannot

be a reason for interfering with use of discretion by

the trial Court.

Writ Petition is thus dismissed. No cost.

JUDGE

Rgd.