Bombay High Court
SITABAI DHONDU KHANWILKAR AND ORS.versusBABAJI BHIKAJI KHANVILKAR (SINCE DECD) THROUGH LRS. AND ORS.
- Disposal
- Dismissed
Holding
The court held that the application to produce documents and file an additional affidavit was justified by the pleadings and caused no prejudice, warranting dismissal of the writ petition.
Summary
The petitioners challenged a trial court order that allowed the respondent-plaintiff to produce previously withheld documents and file an additional affidavit in a partition suit filed in 2008. The petitioners argued that the amendment was impermissible and would prejudice them, while the respondents contended that the documents were foundational to their claim and no prejudice would result. The High Court examined the pleadings, found that paragraphs 5 and 8 of the plaint provided a sufficient basis for the documents, and noted that the suit was already at the stage of recording evidence. Relying on prior Bombay High Court judgments, the court held that the application was procedurally acceptable and necessary to resolve the real controversy. Consequently, the writ petition was dismissed, with the trial court directed to continue the suit and dispose of it within eight months.
Issues considered
- Whether the trial court erred in permitting the production of documents and filing of an additional affidavit in a suit filed in 2008.
- Whether allowing such amendment would cause prejudice to the petitioners.
- Whether the writ petition challenging the trial court's order should be dismissed.
Subjects
- writ petition
- production of evidence
- additional affidavit
- partition suit
- procedural law
- prejudice
- trial court discretion
Judgment
909-2224-2016-WP=.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2224 OF 2016
Digitally
WITH
signed by
UDAY UDAY
SHIVAJI
INTERIM APPLICATION NO. 686 OF 2023
SHIVAJI JAGTAP
JAGTAP Date:
2026.10.09
16:37:07
+0530
Sitabai Dhondu Khanwilkar and Anr. … Petitioners
Vs.
Babaji Bhikaji Khanvilkar (Since Decd) Through Lrs. … Respondents
and Ors.
………….
Mr. Manoj Sabale a/w Somvrat Kurlekar, Sandip Kurane for the Petitioner
Mr. Rahul S. Rane (through VC) a/w Shubham R. Vasekar for the
Respondents
………….
CORAM : SHAILESH P. BRAHME, J.
DATE : 8th OCTOBER, 2026.
P. C. :
. Heard the contesting parties.
2. Though couple of parties are passed away, the matter can be taken
up for final disposal as the contesting parties are before the Court. It
would be open for the parties to take steps against the deceased parties
before the trial Court, if not done earlier.
3. Being aggrieved by the order dated 27.07.2015 passed below
Exh.141 in R.C.S. No. 71 of 2008, the defendants preferred the writ
petition. The respondent no.1 has filed R.C.S No.71 of 2008 for
partition, possession and injunction. The suit is contested by the
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909-2224-2016-WP=.doc
petitioners. The first witness of the respondent – plaintiff was examined.
In the midst of the cross-examination, application Exh.141 is preferred on
24.11.2014 seeking production of evidence and permission to file
additional affidavit in lieu of examination-in-chief. It is objected by the
petitioners. By impugned order the application is allowed.
4. It is submitted that the documents, which are sought to be
produced were with the respondent - plaintiff and no reason is
forthcoming as to why those were withheld. It is impermissible to file
the documents and seek leave to produce additional affidavit when the
Suit is of 2008. It is submitted that respondent – plaintiff is attempting
to fill up lacuna and hence, application is liable to be rejected.
5. Learned counsel for the respondents supports the impugned order.
There is foundation in the plaint for the documents which are sought to
be produced. It is submitted that no prejudice will be caused to the
petitioner.
6. The Suit filed by the respondents is at the stage of recording of
evidence of the plaintiff and his first witness is being cross-examined.
The documents which are sought to be produced can be said to be with
the respondent – plaintiff. I have carefully gone through paragraph nos.
5 and 8 of the plaint, which would constitute sufficient foundation and
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909-2224-2016-WP=.doc
pleadings for the newly introduced documents. I do not find that there is
any apparent illegality in permitting Application Exh.141.
7. The learned trial Court has relied upon the judgments of the
Bombay High Court in the impugned judgment for allowing the
application. A pragmatic view has been taken. The documents are
necessary to decide the real controversy between the parties. The
petitioners will get opportunity of cross-examine the witnesses and / or
to challenge the oral evidence. No prejudice can be said to have been
caused.
8. The Writ Petition is dismissed. It is clarified that petitioners shall
be at liberty to challenge the documents or oral evidence at the
appropriate stage, as is permissible in law.
9. Both the parties shall co-operate in expeditious disposal of the suit.
The trial Court shall decide the suit within a period of eight months.
10. In view of dismissal of the petition, pending application does not
survive and the same is disposed of.
( SHAILESH P. BRAHME, J. )
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