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1994 DIGILAW 252 (GUJ)

Deepak Kashinath Bapat v. Mukund R. Patvardhan

1994-08-24

J.M.PANCHAL

body1994
J. M. PANCHAL, J. ( 1 ) THE present Revision Application is directed against the order dated October 3, 1992 passed by the learned 5th Jt. Civil judge (J. D.), Vadodara below application exh. 43 in Misc. Civil Application No. 175/89 whereby the petitioner is permitted to tender Rent Note in evidence, but is refused permission to lead evidence petitioning the said Rent note. ( 2 ) THE petitioner, i. e. Deepak kashinath Bapat as original plaintiff had filed Regular Civil Suit No. 3/82 for obtaining vacant possession of the suit premises. The defendant, i. e. the respondent No. 1 herein did not file written Statement. Under the circumstances, the suitwas tried ex parte and decree of eviction was passed in favour of the petitioner. The petitioner thereafter filed Execution Application no. 218/82 for executing the decree of eviction passed in his favour. It is the case of the petitioner that the petitioner obtained possession of the suit premises on November 3, 1982 in execution proceedings. ( 3 ) THE respondent No. 1 herein preferred an appeal against the ex parte decree. As the appeal was time barred, the defendant also filed an application for condonation of delay. Ultimately, the appeal filed by the respondent No. 1 came to be allowed by the Appellate court and the respondent No. 1 was directed to file a separate application for restitution of possession of the suit premises. It is an admitted position that accordingly the respondent No. 1 has filed Application No. 175/89 for restitution. In the restitution proceedings the petitioner has appeared and it is his case that the restitution application deserves to be rejected because on 11-11- 1992 possession of the suit premises was handed over to the respondent No. 2, i. e. Nandiniben Atmaram Apte on rent of Rs. 300/- per month after a rent note was executed by the respondent No. 2 in his favour. ( 4 ) THE evidence of the present petitioner was recorded with reference to application No. 175/89. When the evidence of the petitioner was being recorded, a question was put to him in his cross-examination with reference to the existence of the rent note executed by the respondent No. 2 in his favour. The petitioner has staled in his cross- examination that the respondent No. 2 had executed a rent note in his favour. Thereupon an application at Exh. The petitioner has staled in his cross- examination that the respondent No. 2 had executed a rent note in his favour. Thereupon an application at Exh. 43 was moved on behalf of the petitioner praying that the petitioner should be permitted to tender said rent note in evidence and lead evidence with reference to the said rent note. ( 5 ) AFTER hearing the learned Advocates for the parties, the learned Judge has granted said application partly by order dated October 3, 1992. By the impugned order the learned Judge has permitted the petitioner to tender the rent note in evidence, but has refused permission to the petitioner to lead evidence with reference to the said rent note. ( 6 ) MR. S. P. Hasurkar, learned Counsel for the petitioner submitted that the petitioner should have been permitted to lead evidence with reference to the rent note which is allowed to be tendered in evidence by the learned Judge and, therefore, the impugned order deserves to be set aside. It was submitted that permission to lender rent note in evidence without permitting the petitioner to lead evidence with reference to the said document, is of no consequence and the learned Judge having exercised the jurisdiction illegally and with material irregularity, the present Revision application should be allowed and the impugned order should be set aside. ( 7 ) MR. Nilesh M. Shah, learned counsel for the respondent No. 1 submitted that the case of the petitioner to permit him to lead evidence with respect to rent note in question does not fall within the provisions of Order XVIII rule 17-A of the Code of Civil Procedure and, therefore, this Court should not interfere with the discretion exercised by the learned Judge while entertaining the revision application filed under Section 115 of the Code of Civil Procedure. ( 8 ) FROM the impugned order, it is evident that the learned Judge has permitted me petitioner to lender rent note in evidence. The evidence of the respondent No. 2, i. e. Nandiniben atmaram Apte is yet to be recorded. In the cross-examination by the respondent no. 1 the petitioner was asked a question regarding existence of rent note and the petitioner has admitted existence of the rent note. The evidence of the respondent No. 2, i. e. Nandiniben atmaram Apte is yet to be recorded. In the cross-examination by the respondent no. 1 the petitioner was asked a question regarding existence of rent note and the petitioner has admitted existence of the rent note. Under the circumstances, in my view, necessary permission should have been granted to the petitioner to lead evidence regarding rent note, which is alleged to have been executed by the respondent No. 2 in favour of the petitioner. The existence or otherwise of the rent note and the circumstances under which the said rent note came to be executed by the respondent No. 2 in favour of the petitioner are relevant for the purpose of deciding restitution application filed by the respondent No. 1. In my view, the learned Judge was not justified in not permitting the petitioner to lead evidence with regard to the rent note, more particularly, when the permission was granted to the petitioner to tender the said rent note in evidence. Having regard" to the facts and circumstances of the case, I am of the view that the learned Judge has failed to exercise jurisdiction vested in him by not permitting the petitioner to lead evidence with reference to the rent note and this has necessitated interference of this Court in the present Revision Application which is filed under Section 115 of the Code of civil Procedure. The order if allowed to stand, is bound to occasion a failure of justice and would cause irrepairable (sic.) injury to the petitioner against whom it is made. ( 9 ) FOR the foregoing reasons, the revision application succeeds. The impugned order dated October 3, 1992 passed by the learned 5th Jt. Civil Judge (JD), Vadodara below Exh. 43 in Misc. Civil Application No. 176/89 in so far as permission is refused to the petitioner to lead evidence with regard to the rent note, is hereby set aside and quashed. It is clarified that the petitioner would be entitled to lead evidence pertaining to the rent note which is permitted to be tendered in evidence. As the matter is fairly old, the learned Judge shall permit the petitioner to lead evidence with regard to the said rent note as early as possible. Rule is made absolute accordingly, with no order as to costs. Interim relief granted earlier is hereby vacated. .