Writ Petition No. 7688 of 2013. Case: Mukund Iron Staff Association Co-op. Housing Society Ltd. Vs Vasant Ramchandra Patil and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 7688 of 2013 |
| Counsel | For Appellant: S.M. Oak i/by Sagar Joshi, Advs. and For Respondents: Ibrahim Merchant i/by Kvaiyar and Associates |
| Judges | R.M. Savant, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XVIII Rules 17, 17A; Section 151; Specific Relief Act 1963 - Section 16(c) |
| Judgement Date | February 18, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
R.M. Savant, J.
1. Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.
2. The writ jurisdiction of this Court is invoked against the order dated 2/8/2013 passed by the learned Judge of the City Civil Court, Greater Bombay by which order the Application being Notice of Motion No.2461 of 2013 filed by the Petitioner/Plaintiff for re-calling of its witness and tendering additional affidavit of examination in chief, for leading evidence in terms of Section 16(c) of the Specific Relief Act, 1963 came to be rejected.
3. Shorn of unnecessary details, a few facts, which are necessary for the adjudication of the above Petition, can be stated thus:- The Petitioner herein is the original Plaintiff and the Respondents herein are the original Defendants in the suit which was initially filed in this Court being H C Suit No.2526 of 1988. The said suit was filed for specific performance of 4 agreements dated 13/2/1975 in respect of 4 pieces of land which were agreed to be sold to the Plaintiff. The Plaintiff is a Co-operative Housing Society of the employees of one Mukund Iron. It seems that the Plaintiff had also purchased other plots of land from the Defendants. The Defendants, it seems had conveyed the other plots of land which were purchased but in spite of having been called upon to do so had failed to execute the conveyance deeds in respect of the 4 plots of land covered by the agreements dated 13/2/1975. The Plaintiff was therefore constrained to file the suit in question for specific performance.
4. In the context of the challenge raised in the present Petition, it is required to be noted that in Paragraph 14 of the plaint, the Plaintiff has referred to the letters by which the Plaintiff had called upon the Defendants to execute the conveyance and it has been averred that the Plaintiffs have shown their readiness and willingness to pay the balance of the purchase price viz. Rs.7,67,250/- but the Defendants on one pretext or the other have failed and neglected to come forward to execute the conveyance in respect of the said remaining area particularly the lands covered by the 4 agreements. The said paragraph is followed by paragraphs 15 and 16 in which paragraphs the Plaintiff has further reiterated its case in respect of its readiness and willingness.
5. The Defendants have filed their written statement pursuant to which the Issues came to be framed by a learned Single Judge of this Court on 3/12/2009 and amongst the issues framed was Issue No.4 which reads thus:-
"Issue No.4: Whether the Plaintiffs prove that they were always ready and willing and are still ready and willing to perform their part of the agreements?
It is thereafter that the Commissioner came to be appointed for recording of evidence by a learned Single Judge of this Court. The affidavit of evidence was filed by the Plaintiff on 13/1/2010 along with the compilation of documents. The documents were numbered on 29/4/2011 whilst the suit was pending in this Court. The Commissioner thereafter recorded the evidence and the 3 sets of Defendants being Defendant Nos.1(A) to 1(C), Defendant Nos.5 to 15, and the Defendant Nos.2(D) and 2(E) have cross examined the Plaintiff's witness which cross examination covered the aspect of the readiness and willingness of the Plaintiff.
6. The suit came to be transferred to the City Civil Court, Greater Bombay in October 2012 on the pecuniary jurisdiction of the City Civil Court being enhanced. The Plaintiff closed its evidence on 21/6/2013. The Defendants did not lead any evidence and accordingly closed their evidence. The suit is therefore at the stage where the arguments are to be heard. However, on 29/6/2013 an application came to be filed by the Defendant Nos.2(c) and 2(d) for directions to be issued to the Plaintiff to produce the documents which have been mentioned in paragraph 14 of the plaint. The said documents relate to the readiness and willingness of the Plaintiff. The said application came to be rejected by the Trial Court by an order passed on the same day on the ground that the said application could not be allowed and if the Plaintiff fails to produce the documents mentioned in paragraph 14 of the plaint, then adverse inference would be drawn against the Plaintiff. It is thereafter that the instant Notice of Motion being No.2461 of 2013 came to be filed by the Plaintiff for the reliefs which have been adverted to in the earlier part of this order. In the affidavit in support of the Motion the ground stated therein is that due to inadvertence the averments relating to the documents in support of the case of readiness and willingness were not made in the affidavit in examination in chief filed by the Plaintiff. Hence leave of the Court was sought for recalling of the Plaintiff's witness and for permission to file additional affidavit of examination in chief of the Plaintiff's witness.
7. The said application was opposed to on behalf of the Defendant Nos.1(A) to 1(C) by filing affidavit in reply of one Dr. Nitin Vasant Patil. The objection was on the ground of delay as also on the ground that though the documents have been mentioned in the plaint, the Plaintiff has not produced the same, and therefore, the Trial Court has passed an order on the application filed by the Defendant Nos.2 (c) and 2(d) for adverse inference being drawn against the Plaintiff. It is on the said ground that the Notice of Motion was opposed to on behalf of the said Defendant Nos.1A to 1C.
8. The Trial Court considered the said Application being Notice of Motion No.2461 of 2013 and as indicated above by the impugned order rejected the same. The gist of the reasoning of the Trial Court is that since the application is referable to Order XVIII Rule 17 of the Code of Civil Procedure, and since the evidence of the Plaintiff is complete, the...
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