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2011 DIGILAW 343 (JHR)

Md. Afroz v. Johra Khatoon

2011-04-19

DHIRUBHAI NARANBHAI PATEL

body2011
JUDGMENT D.N. Patel, J. 1. The present writ petition has been preferred against the order passed by learned Munsif, Ranchi dated 10th February, 2011 in Title Suit No. 246 of 2007, whereby, the application given by the Petitioner (original Defendant) under Order XVI Rule 2 of the Code of Civil Procedure for issuance of summons upon two witnesses, who have signed the gift deed upon which the whole case of the Defendant is based, has been rejected by the trial court. 2. Learned Counsel for the Petitioner (original Defendant) submitted that the Title Suit No. 246 of 2007 has been instituted by the Respondent for declaration that the gift deed dated 14th August, 1995 executed in favour of the present Petitioner, is null and void. The original Defendant is relying upon the said gift deed and, therefore, the application was given for examination of two witnesses, who have signed the said registered gift deed. For no justifiable reasons, the application preferred by the original Defendant under Order XVI Rule 2 of the Code of Civil Procedure has been rejected and, therefore, the order passed by the trial court deserves to be quashed and set aside and the two witnesses, who are referred in the application given by the original Defendant under Order XVI Rule 2 of the Code of Civil Procedure especially in paragraph 2 thereof, may be summoned to give their evidences before the trial court so that the correct fact may be brought on record and the dispute can be decided, accurately. 3. Notice upon the Respondent was issued by this Court on 31st March, 2011. Now, an affidavit has been filed by the Petitioner, wherein, it is stated that when the Petitioner has tried to serve the notice upon the Respondent, she has refused to accept the same. The affidavit filed by the Petitioner is on record. 4. It is also submitted by learned Counsel for the Petitioner that over and above this attempt, they have served a copy of this writ petition along with annexures upon the counsel of the original Plaintiff, who has appeared in the trial court. 5. In view of the aforesaid facts, it appears that the notice of this Court has been served upon the Respondent. 6. 5. In view of the aforesaid facts, it appears that the notice of this Court has been served upon the Respondent. 6. Having heard learned Counsel for the Petitioner and looking to the facts and circumstances of the case, I hereby quash and set aside the order passed by learned Munsif, Ranchi dated 10th February, 2011 in Title Suit No. 246 of 2007 mainly for the following facts and reasons: (i) It appears that the Respondent is an original Plaintiff, who has instituted Title Suit No. 246 of 2007, wherein, it is prayed that the registered gift deed executed by the grand mother in favour of the present Petitioner, who is the grand son, should be declared as null and void. (ii) It further appears that there are two signatories as witnesses in the registered gift deed. The copy of the said registered gift deed is at Annexure-1. Their names are as under: (a) Dilip Ram. (b) Sahed Parwez. (iii) Thereafter, it appears that an application was given by the original Defendant under Order XVI Rule 2 of the Code of Civil Procedure for summoning the aforesaid two witnesses of the registered gift deed. The said application is at Annexure-2 to the memo of this petition. In paragraph 2 thereof, it has been categorically mentioned that let the summons be issued to the aforesaid two witnesses so that the execution of the gift deed can be proved. (iv) It appears that the trial court has lost sight of the fact that the aforesaid two witnesses are most important witnesses. When the original Defendant is relying upon the gift deed, the execution of the gift deed ought to have been proved and this proof can be given by the aforesaid two witnesses. Looking to the impugned order, it appears that this aspect of the matter has not been properly appreciated by the trial court, which is an error apparent on the face of the record. The trial court has mentioned in last paragraph of the impugned order that there is no basis in the application given by the original Defendant for summoning those two witnesses. This is an error apparent on the face of the record. The trial court has mentioned in last paragraph of the impugned order that there is no basis in the application given by the original Defendant for summoning those two witnesses. This is an error apparent on the face of the record. These two witnesses, even if they are not examined by the original Defendant, the trial court has all power to issue summons upon the two witnesses to know the correct fact about the execution of the gift deed. This document affects the very root of the case. The deposition of these two witnesses will be required for arriving at correct decision of the dispute between the parties. Thus, in the interest of justice also, the aforesaid two witnesses ought to have been issued summons by the trial court. 7. As a cumulative effect of the aforesaid facts and reasons, I hereby quash and set aside the order passed by learned Munsif, Ranchi dated 10th February, 2011 in Title Suit No. 246 of 2007 and I also hereby direct the trial court to issue summons upon the aforesaid two witnesses. 8. The petition is allowed and disposed of. Petition allowed.