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2011 DIGILAW 1126 (MP)

Samdariya Construction Company v. State of M. P.

2011-09-23

K.K.LAHOTI, VIMLA JAIN

body2011
JUDGMENT This appeal is directed against an order dated 17.3.2011 passed by the District Judge, Jabalpur in Civil Suit No. 4-A/05 by which the trial Court by closing the evidence of appellant dismissed the suit under Order 17 rule 3 CPC. Learned counsel for appellant submitted that affidavit was already filed and the witnesses were also present on earlier occasions, but because of non-availability of the record from the office of the Sub-Registrar, witnesses could not be examined. It is submitted by the appellant that by mistake of the counsel, relevant record from the office of Sub-Registrar could not be summoned. That the matter relates to immoveable property, for which a suit for perpetual injunction was filed and if a reasonable opportunity is allowed in this regard, this will meet the ends of justice. It is also submitted that the appellant is ready to duly compensate the respondents by payment of cost. Learned counsel for respondents opposed the aforesaid contention. From the perusal of the facts, it appears that that an affidavit was already filed before the trial Court and the plaintiff was present on the date of evidence, but it appears that an application for summoning the record from the office of the Sub- Registrar could not be moved because of mistake of the counsel and witness could not be examined. As the matter relates to immoveable properly in which substantial rights of the appellant are involved, we find it appropriate to allow opportunity to the appellant, but on payment of costs. In the result, this appeal is allowed in following terms:- (1) Appellant shall deposit cost of Rs. 3000/- before the trial Court within a period of 15 days from today, which shall be payable to the other side. (2) On deposit of the cost within aforesaid period, the District Judge shall restore the file of Civil Suit No. 4-A/05 to its number and allow opportunity to the appellant to produce its evidence. If any application is required to summon the record, the appellant shall move such an application on very first date and the trial court shall consider the aforesaid application in accordance with law. (3) It is made clear that only reasonable opportunity shall be allowed to the appellant to produce the evidence. Considering facts of the case, there shall be no order as to costs of this appeal. C.C. as per rules.