IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition NO. 8569 OF 2016
Sultan Suleman Qureshi
Mrs. Anisa Rafiq Charolia And Ors .
CORAM : R. G. KETKAR, J.
DATE : 18th August, 2016
1. Heard Mr. Manoj Harit, learned Counsel for the petitioner, at length.
2. By this Petition under Article 227 of the Constitution of India, the petitioner hereinafter referred to as the ‘defendant’, has challenged the judgment and order dated 22.4.2016 passed by the learned Judge, presiding over Court Room No.10 of the Court of Small Causes at Bombay below Exhibit36 in R.A.E. R. Suit No.103/163 of 2004. By that order, the learned trial Judge rejected the application Exhibit36 made by the defendant for de-exhibiting the documents at Exhibits24 to 28 and reject same from the evidence.
3. Mr. Harit has invited my attention to the order dated 27.3.2012 passed by the learned trial Judge regarding admissibility of the documents filed by the plaintiff. In particular he submitted that while marking the documents as Exhibits21 to 23, the learned trial Judge has observed that the contents in the letters dated 16.7.1998 and 26.4.1998 are proved in evidence of PW1 Mr. Rashid and accordingly marked those documents at Sr. Nos.1 to 3 as Exhibits21 to 23.
4. Mr. Harit further submitted that the learned trial Judge has also marked the letters dated 5.12.1998, 7.12.1998 and 28.10.1999 as Exhibits25 to 27 by observing that same are proved in evidence of PW1 Mr. Rashid. He submitted that the learned trial Judge was not justified in observing that these documents are proved in evidence of PW1 Rashid. Said stage will come while deciding the suit on merits.
5. I have considered the submissions advanced by Mr. Harit. I have also perused the material on record. It is settled position in law that once the documents are marked as Exhibits, they cannot be deexhibited. At the same time, while deciding the suit finally, the learned trial Judge will decide the same uninfluenced by the observations made in the order dated 27.3.2012 in relation to Exhibits21 to 23 and 25 to 27. Subject to this clarification, no case is made out for invocation of powers under Article 227 of the Constitution of India. Petition fails and the same is dismissed.
6. It is made clear that where a decree is challenged by the petitioner, any error, defect or irregularity in impugned order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of the proposed proceedings as contended by section 105(1) of C.P.C.
( R. G. KETKAR, J.)