Gaurishankarji S/O Balchandji Lohiya (Since Deceased) Thr. Lrs. Arti W/O Vijaykumarji Goenka v. Ashokkumar S/O Balchandji Lohiya And Others

2024:BHC-NAG:620 94A.5122.23.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR WRIT PETITION NO.5122 OF 2023 Shri Gaurishankarji S/o Balchandji Lohiya through LRs .Vs. Ashokkumar S/o Balchandji Lohiya and others Office Notes, Office Memoranda of Court's or Judge's Order Coram, appearances, Court's Orders or directions and Registrar's order Shri A.R. Deshpande, Adv. for petitioners.

Shri Chetan Lohiya, Adv. a/w Shri Nishant Patil, Adv. for respondent No.1. CORAM : ANIL S. KILOR, J.

DATED : 15/01/2024 1.

Heard.

2.

The order below Exh.167 dated 15.05.2023 passed in Special Civil Suit No.115 of 2018 by the 8th Jt. Civil Judge, Senior Division, Akola, rejecting the application moved by the defendant Nos.1 (a) and 1(b) for expunging some parts of the evidence affidavit (Exh.151) on the ground that the same are not reflected in the pleading, is under challenge in this writ petition.

3.

The only objection raised by Shri A.R.

Deshpande, learned counsel for the petitioner to the impugned order is that, despite the repeated observation made by the learned trial Court that if a portion of the affidavit is found to be not relevant or if it is found that the portion has no foundation in the pleading, the Court can C.L. Dhakate

94A.5122.23.odt always discard it while deciding the suit, the application was rejected.

4.

The learned trial Court has observed that, the objection of defendant shall be recorded prior to or during the cross-examination and the same shall be considered at the time of final adjudication. However, despite the same, at the conclusion, the application held to be rejected. Accordingly, I am of the opinion that, the ends of justice will be sub-served by modifying the operative part of the order by observing that, the application is "disposed of ". Accordingly, the impugned order is modified.

5.

It is needless to mention that while deciding the objection at the time of final adjudication, the learned trial Court shall not influence by any of the observation made in the impugned order.

6.

The learned trail Court is directed to expedite the suit and it will be decided at the earliest. JUDGE C.L. Dhakate