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FARAD CONTINUATION SHEET No.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

WRIT PETITION NO. 6100/2013

(TARAMANI PURSHOTTAMDAS MOHTA VERSUS THE LEARNED CIVIL JUDGE (SENIOR

DIVISION), NAGPUR & OTHERS)

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Office Notes, Office Memoranda of Coram,

Court's or Judge's orders

appearances, Court's orders of directions

and Registrar's orders

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Shri K.H. Deshpande, Senior Counsel with Shri M.D. Lakhey, counsel for

the petitioner.

Shri M.G. Sarda, counsel for the R-2.

CORAM : SMT. VASANTI A. NAIK J.

DATE : DECEMBER 02

, 2013

.

By this petition, the petitioner impugns an order of

the trial Court dated 16.09.2013 allowing an application filed by

the respondent no.2, seeking correction in his deposition.

One Gangabai had filed a suit for partition and

separate possession. The suit was decreed. The respondent no.3

preferred a first appeal before this Court. During the pendency

of the first appeal, Gangabai expired and an application was

moved by the respondent no.2-Ghanshyamdas for substituting

his name. In the first appeal, this Court directed the trial Court

to hold an enquiry by resorting to the provisions of Order XXII

Rule 5 of the Code of Civil Procedure. This Court directed the

trial Court to record the evidence of the parties and remit the

issue so decided to this Court. After the matter was remanded

by this Court to the trial Court for a decision on the said issue,

the respondent no.2 entered into the witness box. The evidence

of the respondent no.2 was recorded. However, it was noticed

by the respondent no.2 within a short time that there were some

mistakes in recording the evidence and, hence, he applied to the

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trial Court for correction of the deposition. It appears that one

of the assisting counsel appearing on behalf of the petitioner

before the trial Court granted a no objection to the prayer made

in the application. In view of the no objection, the trial Court

directed that the corrections be made in the deposition of the

respondent no.2. Since the trial Court had not applied its mind

to the matter and it was found by this Court in the writ petition

filed by the petitioner bearing Writ Petition No.505/2012, that a

no objection was erroneously given by the junior counsel

appearing for the petitioner in the trial Court, this Court

remanded the matter to the trial Court by the judgment

dated 21.01.2013. After remand of the matter, the trial

Court reconsidered the issue and by the impugned order

dated 16.09.2013 allowed the application for correction of the

deposition.

On hearing the learned counsel for the petitioner

and the respondent no.2 and on a perusal of the impugned order

as also the deposition of the respondent no.2, it appears that the

trial Court was justified in allowing the application filed by the

respondent no.2 and holding that the corrections were

necessary. It appears that the respondent no.2 had sought

correction in a portion of his cross-examination, which reads

thus----

“I cannot say anything about the will, place of

execution of will and circumstances in which it was executed as I

was having knowledge of execution of will”.

In stead of the said sentence, the respondent no.2

sought that the statement should have been recorded as “I

cannot say anything about the will, place of execution of will

and the circumstances in which it was executed, as I was having

no knowledge of the execution of will”.

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