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Rajasthan High Court · body

2005 DIGILAW 754 (RAJ)

Kishan Maheshwari v. Chain Sukh Sarada

2005-03-04

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. 2. The brief facts of the case are that in a suit filed by the petitioner in the trial Court, the Court heard the arguments on the question of production of original Patta on 23rd July, 2002 and at that time Counsel for the defendant made a statement that the defendant has produced the original Patta. The trial Court believed the statement of the learned Counsel for the defendant and ordered that since Patta has already been filed, therefore, the application filed by the petitioner is decided accordingly and the trial Court fixed the case for evidence of the plaintiff . 3. The plaintiff submitted two application; one under Section 151, CPC and another under Order 13 Rule 10, CPC. Both the application are dated 14th July 2004, and 13th July 2004. In the application filed under Section 151 CPC plaintiff has submitted that the Court had passed the order on the application for production of the document relying on the statement of the Counsel for the defendant that defendant has filed the patta in question whereas original Patta is not available on the file of the Court. The plaintiff , therefore, prayed that an appropriate order be passed directing production of the original Patta No. 22 which was issued from File No. 5/7.68 and if the defendant does not want to the Patta produce then matter may be got cleared so that the plaintiff may move proper application for secondary evidence. 4. By another application filed under Order 13 Rule 10, CPC dated 13th July, 2004, the plaintiff prayed that original file form the Gram Panchayat having No. 5/7.68 in which Patta No. 22 alleged to have been issued in the name of defendant on 7th October, 1968 and file No. 5/9.7.78 by which Patta No. 13 alleged to have been issued in the name of Om Prakash son of Shankar Lal on 24th November, 1979 be summoned. According to the plaintiff summoning of the file is necessary because Original Patta No. 22 has not been produced by the defendant and the document is relevant. 5. The trial Court held the petitioner in fact is seeking review of earlier order and for that purpose specific provision is Order 47, CPC and powers under Section 151, CPC can be exercised when there is no other provision is available for the purpose. 5. The trial Court held the petitioner in fact is seeking review of earlier order and for that purpose specific provision is Order 47, CPC and powers under Section 151, CPC can be exercised when there is no other provision is available for the purpose. On this ground the trial Court rejected the petitioners application filed under Section 151 CPC. 6. Learned Counsel for the respondents submitted that the Patta which was in possession of the respondents was produced, therefore, even if the original document sought to be produced by the petitioner is not available on record then he should move application under Section 65 of the Evidence Act or may move any other proper application but no relief could have been granted on the application filed under Section 151, CPC. It is also submitted that the document sought to be produced in the application under Order 13 Rule 10, CPC could not have been summoned, and the trial Court rightly rejected the application filed under Order 13 Rule 10, CPC. 7. I have considered the arguments of the leaned Counsel for the parties and perused the orders placed on record by the petitioner as well as by the respondents. At the out set, it may be observed that law is now well settled by catena of authorities that application cannot be rejected merely on the ground of mentioning wrong provisions of law. It appears that the trial Court has not applied mind to the prayer made and also not applied the mind to the back ground in which the application was submitted by the petitioner before the trial Court. It is not in dispute that the statement was made before the trial Court by the Counsel for the defendant and that was believed by the trial Court and Court assumed that the document sought by the plaintiff from defendant has been filed by the defendant. In view of the said statement of the Counsel for the defendant, the Court observed that no ordre is needed on the application filed by the petitioner. In view of the said statement of the Counsel for the defendant, the Court observed that no ordre is needed on the application filed by the petitioner. It appears that defendants Counsel either un-knowingly made the statement before the Court or did not care to find out which document was sought by the plaintiff but now it appears that the defendant wants to take benefit of that order which was passed only by believing the statement made by the Counsel for the defendant himself which was not correct. Admittedly, relevant document is not available on record and assuming for the sake of arguments that learned Counsel was right when he made statement that Patta is already on record and he meant to say whatever Patta was available with the defendant that has been placed on record by the defendant than also order dated 23rd July, 2002 clearly proceeded on assumption of non-existent fact. When this fact came to the notice of the plaintiff , he has rightly moved application for discovery of the document which is absolutely clear from the facts mentioned in the application and prayer in the application is very specific and clear. The petitioner prayed that position may be got clear from the defendant so that in case defendant wants to produce the document, he may produce document, if not, the plaintiff may submit application for producing secondary evidence. Order 21 Rule 12, CPC clearly provides that such application for discovery of document can be submitted in the Court, even without annexing affidavit, therefore, order of trial Court rejecting the application though filed under Section 151 CPC is absolutely illegal. 8. The petitioner plaintiff submitted another application for summoning the documents form the office of Gram Panchayat. The Order 13 Rule 10, CPC empowers the Court to summon the record from any other Court or proceedings. The Court can pass the order for summoning of the document to avoid unreasonable delay. 8. The petitioner plaintiff submitted another application for summoning the documents form the office of Gram Panchayat. The Order 13 Rule 10, CPC empowers the Court to summon the record from any other Court or proceedings. The Court can pass the order for summoning of the document to avoid unreasonable delay. In view of above, the Court should have apply mind to the fact of the case and where there is serious dispute about the document which is in issue, trial Court should have avoided the unreasonable delay and should have summoned documents from the Gram Panchayat looking the stand of the defendant who appears to be playing game of hide and seek by submitting at one place that he has placed Patta and thereafter admits that the documents sought by plaintiff , is not on record, still opposing the summoning of document which are relating to the title of the property. 9. In view of above, writ petition is allowed. The order dated 26th August, 2004 passed by the trial Court is set aside. It will be just and proper to summon the original file of the Gram Panchayat Loonasar reference of which in application filed under Order 13 Rule 10, CPC is made. The said application is allowed. File may be summoned forth-with by the trial Court.