Full Judgment Text
WP 1816/09 1 Judgment Dt/ 18/06/2009
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1816/2009
Mr. Norman F.X. Alva,
Aged adult,
Occupation retired,
r/o Ground Floor, `Dina-Del’,
HouseNo. 665/0+1, Residency Road,
Sadar Nagpur,
through his power of attorney holder
Mrs. Lorha w/o Norman Alva. ... PETITIONER
.....VERSUS.....
Vice Admiral Rustom Faramroze Contractor,
aged about 60 years, C/o Naushir Bhagwagar,
Ajanta Cooperative Housing Society Ltd.,
Opp. Poonam Chambers, Chindwara Road,
Nagpur. ... RESPONDENT
Mr. D.V. Chauhan, Advocate, for the petitioner.
Mr. M. Shareef, Advocate, for the respondent.
CORAM: SMT. VASANTI A. NAIK, J.
th
DATE : 18 JUNE, 2009.
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith.
The petition is heard finally at the stage of
admission with the consent of the learned counsel for the
parties.
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2. Few facts giving rise to the petition are stated
thus-
The petitioner is the original defendant. A suit
was filed by the respondent-Landlord against the petitioner
in the Small Causes Court, Nagpur, for ejectment and
possession. The respondent was the owner of the suit
property and the petitioner was occupying the same as a
tenant for more than 40 years, on payment of monthly rent.
The respondent pleaded that he was serving in the Indian
Navy and was posted at New Delhi on deputation to the
Indian Coast Guard as the Director General, at the time of
filing of the suit and was due to retire from service in
November, 2008. The respondent pleaded that he was
desirous to settle in Nagpur, after his retirement. It was
also pleaded that after his retirement, he intended to
commence a security consultancy of his own as he had vast
experience in that field. It was pleaded that he did not
possess suitable accommodation for the purpose of
establishment of the said consultancy. The respondent
pleaded that the tenanted premises in occupation of the
petitioner were most suitable and convenient for the
respondent to start his security consultancy. The
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respondent pleaded that the suit property was required for
the purpose of bona fide need of the respondent as well as
his son. It was lastly pleaded that no prejudice would be
caused to the petitioner if the petitioner vacated the suit
premises as he had sufficient alternate premises.
3. The petitioner filed the written statement and
denied the claim of the respondent. It was, however,
admitted that the respondent was the owner of the suit
property and that he was occupying the suit property as a
tenant since 1968. The pleadings in regard to the posting
of the respondent at the relevant time as also the date of
the retirement of the respondent from service, were,
however, denied for want of knowledge. It was vehemently
denied by the petitioner that the tenanted premises in
possession of the petitioner were most suitable and
convenient for commencement of the security consultancy.
It was pleaded that the respondent had another
accommodation in Byramji Town. Lastly, it was denied by
the petitioner that no prejudice would be caused to the
petitioner if he vacated the suit premises as he was having
sufficient accommodation and the hardship caused to the
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respondent would be greater than the petitioner if at the
fag end of his life, he was compelled to vacate the tenanted
premises, specially looking to his medical unfitness.
4. The parties tendered their evidence and on an
appreciation of the same, the Small Causes Court, by the
th
impugned judgment dated 7 of November, 2008, decreed
the suit of the respondent. It was held by the Small Causes
Court that the landlord had succeeded in proving his bona
fide need and the hardship caused to the respondent would
th
be greater. The judgment passed by the trial Court on 7 of
November, 2008, was challenged by the petitioner in an
appeal. The Ad hoc District Judge-1, Nagpur, however, by
rd
the impugned judgment dated 3 of March, 2009, dismissed
the appeal filed by the petitioner.
5. Shri D.V. Chauhan, the learned counsel for the
petitioner, submitted that the Courts were not justified in
holding that the comparative hardship caused to the
respondent would be greater by considering certain
documents and oral evidence which was inadmissible. The
learned counsel for the petitioner submitted that certain
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documents were introduced by the respondent during the
cross-examination of the petitioner though those
documents were not produced by the respondent before
the Court as required under the provisions of Order VII Rule
14 of the Code of Civil Procedure. According to the learned
counsel for the petitioner, the respondent wanted to rely
upon the document of Jamabandi for proving that the
petitioner had alternate accommodation and hence it was
necessary for the respondent to produce the Jamabandi
before the Court when the plaint was presented by the
respondent in the Court of Small Causes. The learned
counsel for the petitioner then submitted that the
provisions of Order VII Rule 14 (4) of the Code of Civil
Procedure could not have been made applicable to the facts
of the case. According to the learned counsel the
document of Jamabandi could not have been introduced
during the cross-examination of the petitioner as it was
neither produced for the cross-examination of the petitioner
nor handed over to the petitioner to refresh his memory.
The learned counsel for the petitioner relied on the decision
reported in 1984 Mh. L.J. 938 to substantiate his
submissions. According to the learned counsel for the
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petitioner, the petitioner could not have been taken by
surprise by introduction of the document during the cross-
examination of the witness, nor could the respondent have
improved his case on the basis of the document of
Jamabandi which was not produced before the Court in
accordance with the provisions of Order VII Rule 14 of the
Code of Civil Procedure. The learned counsel for the
petitioner submitted that the provisions of Order XIII Rule 1
of the Code of Civil Procedure are also similar to that of
Order VII Rule 14 of the Code of Civil Procedure and,
therefore, the respondent could not have taken resort to
the provisions of Order XIII Rule 1 of the Code of Civil
Procedure for introducing the document of Jamabandi
during the cross-examination of the petitioner. The learned
counsel for the petitioner fairly conceded that the petitioner
could not have effectively challenged the finding recorded
by both the Courts on the bona fide need of the respondent,
though the finding as regards comparative hardship was
liable to be set aside and it was necessary to remand the
matter to the appellate court to decide the issue of
comparative hardship afresh on merits as the same was
decided by the courts on the basis of inadmissible
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evidence.
6. Shri Shareef, the learned counsel for the
respondent, supported both the judgments and submitted
that the Courts committed no error whatsoever in
permitting the respondent to introduce the document of
Jamabandi during the cross-examination of the petitioner,
as it was the case of the petitioner that he did not have any
other alternate accommodation. The learned counsel for
the respondent submitted that the burden to prove the
issue of comparative hardship always lies on the tenant
and, therefore, the respondent could have introduced the
document of Jamabandi during the cross-examination of the
petitioner to prove that the petitioner had alternate
accommodation and no hardship would be caused to the
petitioner. The learned counsel for the respondent relied on
the decisions reported in 1996 (1) Mh. L.J. 961 and AIR
2003 Supreme Court 2713 , to substantiate his
submission that the document of J amabandi could have
been filed without the leave of the Court and also could be
introduced during the cross-examination of the petitioner.
The learned counsel for the respondent submitted that it
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was clearly pleaded by the petitioner in the written
statement that he had no alternate premises for his
accommodation and that greater hardship would be caused
to the petitioner if he was required to vacate the premises
at the fag end of his life. In the backdrop of these
pleadings, according to the learned counsel for the
respondent, the document of Jamabandi could have been
introduced during the cross-examination of the petitioner.
The learned counsel for the respondent relied on the
provisions of Order VII Rule 14 of the Code of Civil
Procedure, as also the provisions of Order XIII Rule 1 of the
Code of Civil Procedure, to substantiate his submission that
document of Jamabandi could have been introduced during
the cross-examination of the petitioner.
7. I have considered the submissions made on behalf
of the parties and perused the impugned judgments as also
the relevant provisions of the Code of Civil Procedure and
the evidence tendered by the parties on record. It is
necessary to note that it was pleaded by the respondent-
landlord that no prejudice would be caused to the petitioner
if he vacates the suit premises as he had sufficient
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alternate premises. This plea was raised by the respondent
in the plaint and in response to this plea, the petitioner had
pleaded in the written statement that he did not have any
alternate premises for his accommodation and the hardship
caused to the petitioner would be greater than that of the
respondent, if at the fag end of the life, he was required to
vacate the suit premises. Since the respondent had based
his case on the plea that the petitioner had alternate
premises, it was necessary for the petitioner to produce the
document of Jamabandi at the time of presentation of the
plaint and deliver a copy of the document to the petitioner.
It is also necessary to note that though the respondent had
pleaded in the plaint that the petitioner had sufficient
alternate premises, the details of the alternate premises
available to the petitioner were not pleaded by the
respondent. In this background, the petitioner had merely
denied the fact of possessing alternate premises.
8. It is apparent that the petitioner was taken by
surprise when the document of Jamabandi was introduced
by the respondent during the cross-examination of the
petitioner. It is necessary to note that the object of the
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provisions of Order VII Rule 14 of the Code of Civil
Procedure is to provide full opportunity to the defendant to
enable him to take an effective defence. It is, therefore,
necessary for the plaintiff to produce all the relevant
documents on which he bases his claim, at the time of
institution of the suit. The intent of the provisions of Order
VII Rule 14 of the Civil Procedure Code is to grant an
opportunity to the defendant to examine the documents
produced by the plaintiff, before filing the written
statement and taking a defence. Since it was the case of
the respondent that the petitioner had alternate
accommodation, it was necessary for the respondent to
produce the document of Jamabandi on which he relied to
prove the same, at the time of presentation of the plaint.
The petitioner could not have been taken by surprise by
introduction of the document during his cross-examination.
9. The submission made on behalf of the respondent
that the provisions of Order VII Rule 14(4) of the Code of
Civil Procedure would be applicable to the facts of this case
as the respondent was entitled to produce the document for
the cross-examination of the petitioner, is also not well-
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founded as from a reading of the evidence tendered by the
petitioner in the examination-in-chief, it is clear that the
petitioner did not utter that he did not have any alternate
premises. In the absence of any assertion or a statement in
that regard in the examination-in-chief, there was no
question of cross-examining the petitioner on the said fact
by introducing the document of Jamabandi . Hence, it
cannot be said that the document of Jamabandi was
introduced by the respondent during the cross-examination
of the petitioner, for the purpose of cross-examination of
the petitioner on the evidence tendered by him during the
examination-in-chief. For similar reasons, the provisions of
Order XIII Rule 1 of the Code of Civil Procedure would also
not come to the rescue of the respondent for holding that
the document could have been introduced during the cross-
examination of the petitioner. Since the document of
Jamabandi cannot be said to have been introduced to
contradict a statement made by the petitioner in his
examination-in-chief, the same could not have been
introduced during the cross-examination. For the aforesaid
reasons, the first appellate Court was not justified in holding
that the non-filing of the document of Jamabandi pertaining
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to the flat on the fifth floor at Mangalwari, Nagpur, by the
respondent prior to the cross-examination of the petitioner,
could not be said to be illegal.
10. On a reading of the judgment, it is clear that both
the Courts had answered the issue of comparative hardship
in favour of the respondent, mainly on the ground that the
respondent had succeeded in proving that the petitioner
had alternate accommodation, on the basis of the
document of Jamabandi introduced by the respondent
during the cross-examination of the petitioner. The Courts
referred to the evidence of the petitioner from the cross-
examination, which was extracted on the basis of the
introduction of the document of Jamabandi , to draw an
inference that the petitioner’s wife has alternate premises
though the fact was denied in the cross-examination. Since
the finding recorded by both the Courts on the issue of
comparative hardship is based on the finding that the
petitioner’s wife owned a flat in Mangalwari and the same
in turn is based on an inference drawn on the basis of the
evidence which was extracted from the petitioner by the
introduction of the document of Jamabandi , the said finding
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cannot be sustained.
11. Since the finding on the issue of comparative
hardship was liable to be set aside, this Court asked the
counsel for the petitioner as to whether the petitioner
desires to produce the necessary documents before the
trial court with the leave of court and then lead evidence on
the basis of those documents as the respondent has no
objection if that course is followed, the counsel for the
petitioner, on instructions from the petitioner answered in
the negative and sought a remand of the matter to the first
appellate court, rather than the trial court. Hence, it would
be just and proper in the facts and circumstances of the
case to remand the matter to the first appellate court which
is a final fact finding court for recording a finding on
comparative hardship.
12. In the result, the writ petition is partly allowed.
The impugned orders passed by both the Courts are hereby
modified. The finding recorded by both the Courts on the
issue of comparative hardship is hereby set aside. The rest
of the findings recorded by both the Courts specially the
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finding on the issue of bona fide need are hereby
maintained. Since the issue of comparative hardship, which
is liable to be decided by the first appellate Court is a short
one, the first appellate Court is expected to decide the
appeal as early as possible and positively within a period of
three months from today. Both the parties undertake to
nd
appear before the appellate Court on 2 of July, 2009, so
that issuance of individual notices could be dispensed with.
Rule is made absolute in the aforesaid terms with no order
as to costs.
(Vasanti A. Naik)
JUDGE
RMP
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IN THE HIGH COURT OF JUDICATURE AT
BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1816/2009
Mr. Norman F.X. Alva,
Aged adult,
Occupation retired,
r/o Ground Floor, `Dina-Del’,
HouseNo. 665/0+1, Residency Road,
Sadar Nagpur,
through his power of attorney holder
Mrs. Lorha w/o Norman Alva. ... PETITIONER
.....VERSUS.....
Vice Admiral Rustom Faramroze Contractor,
aged about 60 years, C/o Naushir Bhagwagar,
Ajanta Cooperative Housing Society Ltd.,
Opp. Poonam Chambers, Chindwara Road,
Nagpur. ... RESPONDENT
Mr. D.V. Chauhan, Advocate, for the petitioner.
Mr. M. Shareef, Advocate, for the respondent.
CORAM: SMT. VASANTI A. NAIK, J.
th
DATE : 18 JUNE, 2009.
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith.
The petition is heard finally at the stage of
admission with the consent of the learned counsel for the
parties.
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2. Few facts giving rise to the petition are stated
thus-
The petitioner is the original defendant. A suit
was filed by the respondent-Landlord against the petitioner
in the Small Causes Court, Nagpur, for ejectment and
possession. The respondent was the owner of the suit
property and the petitioner was occupying the same as a
tenant for more than 40 years, on payment of monthly rent.
The respondent pleaded that he was serving in the Indian
Navy and was posted at New Delhi on deputation to the
Indian Coast Guard as the Director General, at the time of
filing of the suit and was due to retire from service in
November, 2008. The respondent pleaded that he was
desirous to settle in Nagpur, after his retirement. It was
also pleaded that after his retirement, he intended to
commence a security consultancy of his own as he had vast
experience in that field. It was pleaded that he did not
possess suitable accommodation for the purpose of
establishment of the said consultancy. The respondent
pleaded that the tenanted premises in occupation of the
petitioner were most suitable and convenient for the
respondent to start his security consultancy. The
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respondent pleaded that the suit property was required for
the purpose of bona fide need of the respondent as well as
his son. It was lastly pleaded that no prejudice would be
caused to the petitioner if the petitioner vacated the suit
premises as he had sufficient alternate premises.
3. The petitioner filed the written statement and
denied the claim of the respondent. It was, however,
admitted that the respondent was the owner of the suit
property and that he was occupying the suit property as a
tenant since 1968. The pleadings in regard to the posting
of the respondent at the relevant time as also the date of
the retirement of the respondent from service, were,
however, denied for want of knowledge. It was vehemently
denied by the petitioner that the tenanted premises in
possession of the petitioner were most suitable and
convenient for commencement of the security consultancy.
It was pleaded that the respondent had another
accommodation in Byramji Town. Lastly, it was denied by
the petitioner that no prejudice would be caused to the
petitioner if he vacated the suit premises as he was having
sufficient accommodation and the hardship caused to the
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respondent would be greater than the petitioner if at the
fag end of his life, he was compelled to vacate the tenanted
premises, specially looking to his medical unfitness.
4. The parties tendered their evidence and on an
appreciation of the same, the Small Causes Court, by the
th
impugned judgment dated 7 of November, 2008, decreed
the suit of the respondent. It was held by the Small Causes
Court that the landlord had succeeded in proving his bona
fide need and the hardship caused to the respondent would
th
be greater. The judgment passed by the trial Court on 7 of
November, 2008, was challenged by the petitioner in an
appeal. The Ad hoc District Judge-1, Nagpur, however, by
rd
the impugned judgment dated 3 of March, 2009, dismissed
the appeal filed by the petitioner.
5. Shri D.V. Chauhan, the learned counsel for the
petitioner, submitted that the Courts were not justified in
holding that the comparative hardship caused to the
respondent would be greater by considering certain
documents and oral evidence which was inadmissible. The
learned counsel for the petitioner submitted that certain
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documents were introduced by the respondent during the
cross-examination of the petitioner though those
documents were not produced by the respondent before
the Court as required under the provisions of Order VII Rule
14 of the Code of Civil Procedure. According to the learned
counsel for the petitioner, the respondent wanted to rely
upon the document of Jamabandi for proving that the
petitioner had alternate accommodation and hence it was
necessary for the respondent to produce the Jamabandi
before the Court when the plaint was presented by the
respondent in the Court of Small Causes. The learned
counsel for the petitioner then submitted that the
provisions of Order VII Rule 14 (4) of the Code of Civil
Procedure could not have been made applicable to the facts
of the case. According to the learned counsel the
document of Jamabandi could not have been introduced
during the cross-examination of the petitioner as it was
neither produced for the cross-examination of the petitioner
nor handed over to the petitioner to refresh his memory.
The learned counsel for the petitioner relied on the decision
reported in 1984 Mh. L.J. 938 to substantiate his
submissions. According to the learned counsel for the
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petitioner, the petitioner could not have been taken by
surprise by introduction of the document during the cross-
examination of the witness, nor could the respondent have
improved his case on the basis of the document of
Jamabandi which was not produced before the Court in
accordance with the provisions of Order VII Rule 14 of the
Code of Civil Procedure. The learned counsel for the
petitioner submitted that the provisions of Order XIII Rule 1
of the Code of Civil Procedure are also similar to that of
Order VII Rule 14 of the Code of Civil Procedure and,
therefore, the respondent could not have taken resort to
the provisions of Order XIII Rule 1 of the Code of Civil
Procedure for introducing the document of Jamabandi
during the cross-examination of the petitioner. The learned
counsel for the petitioner fairly conceded that the petitioner
could not have effectively challenged the finding recorded
by both the Courts on the bona fide need of the respondent,
though the finding as regards comparative hardship was
liable to be set aside and it was necessary to remand the
matter to the appellate court to decide the issue of
comparative hardship afresh on merits as the same was
decided by the courts on the basis of inadmissible
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evidence.
6. Shri Shareef, the learned counsel for the
respondent, supported both the judgments and submitted
that the Courts committed no error whatsoever in
permitting the respondent to introduce the document of
Jamabandi during the cross-examination of the petitioner,
as it was the case of the petitioner that he did not have any
other alternate accommodation. The learned counsel for
the respondent submitted that the burden to prove the
issue of comparative hardship always lies on the tenant
and, therefore, the respondent could have introduced the
document of Jamabandi during the cross-examination of the
petitioner to prove that the petitioner had alternate
accommodation and no hardship would be caused to the
petitioner. The learned counsel for the respondent relied on
the decisions reported in 1996 (1) Mh. L.J. 961 and AIR
2003 Supreme Court 2713 , to substantiate his
submission that the document of J amabandi could have
been filed without the leave of the Court and also could be
introduced during the cross-examination of the petitioner.
The learned counsel for the respondent submitted that it
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was clearly pleaded by the petitioner in the written
statement that he had no alternate premises for his
accommodation and that greater hardship would be caused
to the petitioner if he was required to vacate the premises
at the fag end of his life. In the backdrop of these
pleadings, according to the learned counsel for the
respondent, the document of Jamabandi could have been
introduced during the cross-examination of the petitioner.
The learned counsel for the respondent relied on the
provisions of Order VII Rule 14 of the Code of Civil
Procedure, as also the provisions of Order XIII Rule 1 of the
Code of Civil Procedure, to substantiate his submission that
document of Jamabandi could have been introduced during
the cross-examination of the petitioner.
7. I have considered the submissions made on behalf
of the parties and perused the impugned judgments as also
the relevant provisions of the Code of Civil Procedure and
the evidence tendered by the parties on record. It is
necessary to note that it was pleaded by the respondent-
landlord that no prejudice would be caused to the petitioner
if he vacates the suit premises as he had sufficient
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alternate premises. This plea was raised by the respondent
in the plaint and in response to this plea, the petitioner had
pleaded in the written statement that he did not have any
alternate premises for his accommodation and the hardship
caused to the petitioner would be greater than that of the
respondent, if at the fag end of the life, he was required to
vacate the suit premises. Since the respondent had based
his case on the plea that the petitioner had alternate
premises, it was necessary for the petitioner to produce the
document of Jamabandi at the time of presentation of the
plaint and deliver a copy of the document to the petitioner.
It is also necessary to note that though the respondent had
pleaded in the plaint that the petitioner had sufficient
alternate premises, the details of the alternate premises
available to the petitioner were not pleaded by the
respondent. In this background, the petitioner had merely
denied the fact of possessing alternate premises.
8. It is apparent that the petitioner was taken by
surprise when the document of Jamabandi was introduced
by the respondent during the cross-examination of the
petitioner. It is necessary to note that the object of the
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provisions of Order VII Rule 14 of the Code of Civil
Procedure is to provide full opportunity to the defendant to
enable him to take an effective defence. It is, therefore,
necessary for the plaintiff to produce all the relevant
documents on which he bases his claim, at the time of
institution of the suit. The intent of the provisions of Order
VII Rule 14 of the Civil Procedure Code is to grant an
opportunity to the defendant to examine the documents
produced by the plaintiff, before filing the written
statement and taking a defence. Since it was the case of
the respondent that the petitioner had alternate
accommodation, it was necessary for the respondent to
produce the document of Jamabandi on which he relied to
prove the same, at the time of presentation of the plaint.
The petitioner could not have been taken by surprise by
introduction of the document during his cross-examination.
9. The submission made on behalf of the respondent
that the provisions of Order VII Rule 14(4) of the Code of
Civil Procedure would be applicable to the facts of this case
as the respondent was entitled to produce the document for
the cross-examination of the petitioner, is also not well-
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founded as from a reading of the evidence tendered by the
petitioner in the examination-in-chief, it is clear that the
petitioner did not utter that he did not have any alternate
premises. In the absence of any assertion or a statement in
that regard in the examination-in-chief, there was no
question of cross-examining the petitioner on the said fact
by introducing the document of Jamabandi . Hence, it
cannot be said that the document of Jamabandi was
introduced by the respondent during the cross-examination
of the petitioner, for the purpose of cross-examination of
the petitioner on the evidence tendered by him during the
examination-in-chief. For similar reasons, the provisions of
Order XIII Rule 1 of the Code of Civil Procedure would also
not come to the rescue of the respondent for holding that
the document could have been introduced during the cross-
examination of the petitioner. Since the document of
Jamabandi cannot be said to have been introduced to
contradict a statement made by the petitioner in his
examination-in-chief, the same could not have been
introduced during the cross-examination. For the aforesaid
reasons, the first appellate Court was not justified in holding
that the non-filing of the document of Jamabandi pertaining
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to the flat on the fifth floor at Mangalwari, Nagpur, by the
respondent prior to the cross-examination of the petitioner,
could not be said to be illegal.
10. On a reading of the judgment, it is clear that both
the Courts had answered the issue of comparative hardship
in favour of the respondent, mainly on the ground that the
respondent had succeeded in proving that the petitioner
had alternate accommodation, on the basis of the
document of Jamabandi introduced by the respondent
during the cross-examination of the petitioner. The Courts
referred to the evidence of the petitioner from the cross-
examination, which was extracted on the basis of the
introduction of the document of Jamabandi , to draw an
inference that the petitioner’s wife has alternate premises
though the fact was denied in the cross-examination. Since
the finding recorded by both the Courts on the issue of
comparative hardship is based on the finding that the
petitioner’s wife owned a flat in Mangalwari and the same
in turn is based on an inference drawn on the basis of the
evidence which was extracted from the petitioner by the
introduction of the document of Jamabandi , the said finding
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WP 1816/09 13 Judgment Dt/ 18/06/2009
cannot be sustained.
11. Since the finding on the issue of comparative
hardship was liable to be set aside, this Court asked the
counsel for the petitioner as to whether the petitioner
desires to produce the necessary documents before the
trial court with the leave of court and then lead evidence on
the basis of those documents as the respondent has no
objection if that course is followed, the counsel for the
petitioner, on instructions from the petitioner answered in
the negative and sought a remand of the matter to the first
appellate court, rather than the trial court. Hence, it would
be just and proper in the facts and circumstances of the
case to remand the matter to the first appellate court which
is a final fact finding court for recording a finding on
comparative hardship.
12. In the result, the writ petition is partly allowed.
The impugned orders passed by both the Courts are hereby
modified. The finding recorded by both the Courts on the
issue of comparative hardship is hereby set aside. The rest
of the findings recorded by both the Courts specially the
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WP 1816/09 14 Judgment Dt/ 18/06/2009
finding on the issue of bona fide need are hereby
maintained. Since the issue of comparative hardship, which
is liable to be decided by the first appellate Court is a short
one, the first appellate Court is expected to decide the
appeal as early as possible and positively within a period of
three months from today. Both the parties undertake to
nd
appear before the appellate Court on 2 of July, 2009, so
that issuance of individual notices could be dispensed with.
Rule is made absolute in the aforesaid terms with no order
as to costs.
(Vasanti A. Naik)
JUDGE
RMP
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