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2015 DIGILAW 1615 (BOM)

Anant Atmaram Malik v. Ajit Shankar Malik

2015-07-17

F.M.REIS

body2015
JUDGMENT Heard Shri Gaonkar, learned Counsel appearing for the Petitioners and Shri Pangam, learned Counsel appearing for the Respondent nos. 1, 2, 3, 4a, 4b, 5e(i), 5(e)(ii), 5d(i), 5d(ii), 6(ii) and 6(iii). 2. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the Respondents, waives service. 3. The short point for consideration in the above Writ Petition upon hearing the learned Counsel appearing for the respective parties is whether the learned Judge has failed to exercise jurisdiction vested in the Court and has acted with immaterial irregularity whilst passing the impugned Order dated 17.11.2011 refusing leave to produce an affidavit of a Surveyor along with a Surveyor's report and sketch in support of the case filed by the Petitioners? 4. The Petitioners filed a suit for declaration of mandatory injunction and permanent injunction in respect of a disputed property against the Respondents. It was the claim of the Petitioners that there was an encroachment in the property belonging to the Petitioners which was strongly disputed by the Respondents in their written statement. At the time of the consideration of the application for temporary injunction, the Petitioners filed an application seeking leave to produce the affidavit of the Surveyor along with the report and the sketch. The application was opposed by the Respondents and ultimately by the impugned Order dated 17.11.2011, the application came to be rejected. 5. The learned Counsel appearing for the Petitioners has pointed out that the suit filed by the Petitioners is on the basis that there is an encroachment in the property and, as such, the report of the Surveyor along with the sketch are very material in deciding the matter in controversy. Learned Counsel has further pointed out that the learned Judge has erroneously rejected the application on the ground that the Respondents did not get an opportunity to meet the said document in their written statement. The learned Counsel further submits that the learned Judge has acted in material irregularity whilst passing the impugned Order which calls for interference by this Court under Article 227 of the Constitution of India. 6. The learned Counsel further submits that the learned Judge has acted in material irregularity whilst passing the impugned Order which calls for interference by this Court under Article 227 of the Constitution of India. 6. On the other hand, Shri Pangam, learned Counsel appearing for the respective Respondents, submits that there was negligence on the part of the Petitioners in not producing the document at the time of the filing of the suit and, on this count itself, the learned Judge has rejected the application. Learned Counsel further pointed out that the said document is irrelevant for deciding the suit as, according to him, the Respondents have not encroached into the property of the Petitioners. Learned Counsel, as such submits, that the Petition be rejected. 7. I have considered the submissions of the learned Counsel and I have also gone through the records. It is not in dispute that the issues in the suit have not been framed and, as such, granting leave to the Petitioners in terms of the Order 7 Rule 14 of the Civil Procedure Code, would not cause any prejudice to the Respondents. Merely producing the document could not by itself prove the contents thereof the Petitioners would have to provide the Authority and the contents thereof in accordance with law. In such circumstances, the finding of the learned Judge on that aspect is not at all justified. The documents are referable to the dispute between the parties and would as such be material to decide the subject in controversy. 8. In the peculiar fats and circumstances of the case, I find that the learned Judge was as such not justified to pass the impugned Order and refuse leave to the Petitioners to rely upon the Survey report and the sketch prepared by the Surveyor and, as such, the impugned Order cannot be sustained. 9. In view of the above, I pass the following : ORDER (i) The impugned Order dated 17.11.2011 is quashed and set aside. (ii) The Petitioners are granted to rely upon the Surveyor's report and the sketch produced by the Surveyor. (iii) All contentions of the Respondents with regard to such documents are left open. (iv) Rule is made absolute in the above terms. (v) Petition stands disposed of.