Smt. Sudha Madhukar Pathak v. M/S Candid Constructions Pvt. Ltd. And ORS

911.wp.7342.2018.doc dik

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7342 OF 2018 Smt. Sudha Madhukar Pathak

...Petitioner.

vs M/s Candid Constructions Pvt. Ltd.& Ors.

...Respondents

.....

Mr Himanshu Kode for the Petitioner.

Mr Nachiket Khaladkar for Respondent Nos.3 and 4. .....

CORAM : B.P.COLABAWALLA, J.

DECEMBER 11, 2018.

P.C. :

This Writ Petition challenges the order dated 9th April, 2018 passed by the Trial Court in an application filed by the Petitioner (original Plaintiff) for exhibiting a copy of the Development Agreement dated 30th March, 1999, and two Power of Attorneys of the same date as according to the Plaintiff, these documents were proved as per the provisions of the Evidence Act. This application came to be rejected by the Trial Court inter alia on the ground that these documents have already been exhibited as Exhs. 73 and 74 produced by the Defendants.

Learned advocate appearing on behalf of the Petitioner submitted that the Trial Court lost sight of the fact that the Pg 1 of 2

911.wp.7342.2018.doc Development Agreement produced by the Plaintiff was different from the Development Agreement produced by the Defendant and which has been marked by the Trial Court. He, therefore, submitted that the Development Agreement produced by the Plaintiff also ought to be marked as an exhibit which the Trial Court failed to do, and hence the present Writ Petition.

I am not impressed with this agreement. Section 105 of the Code of Civil Procedure, 1908 clearly stipulates that where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the Memorandum of Appeal. In other words, if the Plaintiff suffers a decree or fails to get relief which he has prayed for, or any part thereof, whilst he challenges such an order or decree, the Plaintiff can always challenge the order impugned herein. This being the case, I do not think that this is a fit case where I ought to exercise my jurisdiction under Article 227 of the Constitution of India. The Writ Petition is accordingly dismissed. However, there shall be no order as to costs.

(B.P.COLABAWALLA, J.) Pg 2 of 2