IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 31 OF 2006.
1.Kashiram s/o Bhadurchand Bahel
VERSUS
1.Ku. Renu d/o Jogindersingh Sethi
and another.
CORAM : B.P. DHARMADHIKARI, J.
DATED : FEBRUARY 6, 2006.
1. Heard Advocate Lohiya, for petitioners/original defendants
and Advocate Joshi, for respondents/original plaintiff. The order dated
4.1.2006, passed below Exh.89 and the other order dated 22.12.2005,
passed on Application under Order 14 Rule 5, are challenged in this
Petition. Considering the nature of controversy involved, Rule is made
returnable forthwith. Heard finally by consent of parties.
2. Advocate Lohiya, points out that the suit filed by the present
respondent is for declaration that the construction of the present
petitioner is illegal, and therefore, the Municipal Corporation of Akola
is necessary party, and that issue therefore ought to have been framed.
3. Advocate Joshi, says that the question can be decided on the
basis of the facts made available on record and also after looking to the
Law. He further states that in exercise, if it is felt necessary by the
petitioners, they can examine the Municipal Corporation as party
witness, but, Municipal Corporation is not necessary party, and
therefore, that issue has been rightly not framed.
4. It is apparent that the Municipal Corporation is not a
necessary party to find out whether the construction is legal or illegal.
The construction can be held to be illegal by the Civil Court, even if it
finds that the plan in relation there to was sanctioned by the
Municipal Corporation, if the respondents established that there was
violation of Development Control Rules, or Building Bye laws. Hence
the Municipal Corporation is not a necessary party and therefore, the
court below was right in refusing to frame the issue on those lines.
5. Coming to the other order dated 4.1.2006, it is seen that in
affidavit on examination in chief, filed by the present respondents,
there are certain assurances which according to the present petitioner
are not supported by pleadings. The objection was therefore, raised
and prayer was made to remove those assurance from the affidavit,
that application has been rejected by observing that the issue can be
considered at appropriate stage and the application moved was
therefore, found to be not at proper stage. Advocate Lohiya, states that
in these circumstances, the petitioner will be required to cross examine
the respondent unnecessarily and the unwanted material may come
on record, which may prejudice the case of both the sides. He states
that if at later stage, the court finds that this evidence are without
pleading, the entire labour and time will be wasted. He further states
that, if the present petitioners choose not to cross examine the
respondent at this stage because there is no pleadings , and yet in
future lower court finds the said evidence is supported by some
pleadings, a serious prejudice will be caused to the present petitioner.
6. Advocate Joshi, states that in that event, the respondent
will permit the petitioner to cross examine the plaintiff again to that
extent. However, all these ifs and buts and complicated procedure can
be avoided, if the court below decides the objection raised by the
petitioner at this stage itself. If the objection is decided one way or the
other, the fate of future course of action will be clear to both the sides.
Hence interest of justice demands that the court below shall decide the
application Exh.89 moved by the petitioners before the petitioners are
required to cross examine the respondents.
7. The impugned order dated 4.1.2006, passed below Exh.89 by
the 5th Joint Civil Judge, Junior Division, Akola is therefore, quashed
and set aside. The court is directed to decide the objection about
admissibility of evidence raised by the petitioner below exh.89,
immediately and thereafter proceed further with cross examination of
the petitioner.
8. Rule is made absolute in the aforesaid terms, with no order
as to costs.
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