Suman widow of Kanhaiyyalal v. Krantibala wife of Vasant Kondalkar
2008-03-10
A.H.JOSHI
body2008
DigiLaw.ai
ORAL JUDGMENT : 1. Rule is made returnable forthwith, and is heard finally by consent of parties. 2. Heard learned Advocate Mr. P.K. Mishra for the petitioners and learned Advocate Mr. B.N. Mohta for the respondent sole. 3. The petitioners have challenged the order passed below Exh.37. By this application, petitioners had applied for permission to file on record the evidence relating to the location of suit house, to prove the fact that the suit house is located within the Slum Area notified under the statute. 4. Learned First Appellate Judge found that the petitioners have failed to prove that in spite of due diligence, the evidence was not available and, therefore, the petitioners have failed to make out a case under Rule 27 of Order 41 of Civil Procedure Code. 5. The application was opposed, which grounds are reiterated in this Court, contending that:- 2. .....Further, it is submitted that in fact the appellant has not made out a case to grant him permission as per the provisions laid down under Order 41, Rule 27 of the C.P.C. Therefore, it is prayed to reject the application, in support of his above facts the respondent has produced on record the copy of citations and prayed to reject the application.. [quoted from order impugned from pages 19 and 20 of the paper-book of Writ Petition]. 6. The crux of the matter is, whether the production of document, in question, is liable to be allowed? 7. Copy of document sought to be filed is placed on record of this petition at Annexure-A [page 10]. It is a copy of Gazette Notification, which is a public document. Moreover, there is a bar of eviction in relation to the house which is alleged to be subject-matter of a Slum Area notified as such. 8. Thus, filing of this document and facts sought to be proved thereby touch to the jurisdictional question. 9. If the proceedings are concluded in absence of this evidence, the objection, which will be left undecided, will be of such a nature that it could be raised even in the execution proceedings, as the decree, which may be passed, could be objected as null and void. 10.
9. If the proceedings are concluded in absence of this evidence, the objection, which will be left undecided, will be of such a nature that it could be raised even in the execution proceedings, as the decree, which may be passed, could be objected as null and void. 10. In this background, the question, that really arises, is whether the document of such a nature, which touches to the jurisdiction of the case, should be allowed to be produced by leniently construing the test of strictness as to diligence, as against its apparent meaning or plain reading of Rule 27 of Order 41 of Civil Procedure Code? 11. Considering the above point that is involved which touches to the jurisdictional question and the decree, if passed in absence of such document being brought on record, is likely to be rendered nullity. In fact, if production is allowed now, the respondent herein would get an opportunity to defend such jurisdictional fact if the document, in question, is allowed to be brought on record at this stage. The aspects of delay and lack of diligence, in the result, receive a back seat. 12. Interest of justice, therefore, warrants that by giving interpretation of Rule 27 of Order 41 of Civil Procedure Code, a lenient construction, and the document, subject-matter, deserves to be produced. 13. In the result, the petitioners have made out a case for allowing the Writ Petition. Exh.37 deserves to be allowed, and is accordingly allowed. 14. Rule is, therefore, made absolute in terms of Prayer Clause [ii]. In the circumstances, parties shall bear their own costs.