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2005 DIGILAW 171 (JHR)

Nandeo Singh v. Moga Kuar

2005-02-23

M.Y.EQBAL

body2005
ORDER M.Y. Eqbal, J. 1. Heard. 2. This writ petition under Article 227 of the Constitution is directed against the order dated 22.9.2004 passed by Additional Munsif, Palamau, Daltonganj in Partition. Suit No. 42 of 1997 whereby he has rejected the petition filed by the defendants-petitioners for calling for the records of Permission Case No. 46 of 1990-91. 3. From perusal of the impugned order, it appears that prayer of the petitioners for calling for the records of aforesaid case was rejected on the ground, inter alia, that said prayer was made after the closure of the evidence and that the same cannot be allowed at the belated stage. 4. The actual dispute appears to be between the parties with regard to the execution of deed of gift. Admittedly, after the closure of the evidence and at the stage of argument the plaintiff-respondents sought to adduce some documentary evidence relating to permission granted in Permission Case No. 46 of 1990-91. The said prayer was allowed by the Court below by order dated 27.1.2004. While allowing the said prayer of the plaintiff-respondents, the Court below gave liberty to the defendant-petitioners to adduce evidence in rebuttal, if they may so desire. Perhaps, this fact and the order dated 27.4.2004 was not taken into consideration by the Court below while passing the order rejecting the prayer of the petitioners for adducing the evidence in rebuttal. 5. Be that as it may, allowing the prayer of the petitioners will not amount to de novo trial, inasmuch as, petitioners shall be given opportunity to adduce only such documents available on the record on Permission Case which are relevant for the purpose of proper adjudication of the matter in controversy. 6. Mr. M.S. Anwar, learned Counsel appearing for the petitioners submitted that no further oral evidence shall be adduced rather only relevant documents called for shall be proved. 7. In the facts and circumstances of the case, therefore, the Court-below has failed in exercising jurisdiction and passing the impugned order. 8. For the aforesaid reason, this writ petition is allowed and the impugned order is quashed. 9. I direct the Court below to immediately send requisition for calling for the records of the case and without giving unnecessary adjournments, allow the defendant-petitioners to prove the documents and after arguments dispose of the suit.