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2011 DIGILAW 677 (RAJ)

Mohan Lal v. Jatan Kanwar

2011-03-30

G.K.TIWARI

body2011
TIWARI, M.—Both the above cited revision petitions filed under Section 230 of the Rajasthan Tenancy Act, 1955 (in short `the Act') are taken together for a common decision in view of the fact that the petitioners are the same and a common law point is involved in both the petitions. A copy of the judgment should be placed in each of the file separately. 2. Briefly stated, the facts of both the cases are that during pendency of the suits before Assistant Collector Sikar, the petitioner-defendant filed an application each before Assistant Collector, Sikar under Order 18 Rule 17 of the Civil Procedure Code (C.P.C.) requesting the Court that the petitioner-defendant No. 1 Mohan Lal submitted his evidence in the affidavits in the pending suits, but erroneously exhibit numbers on the documents presented in the Court were not written in the affidavits. This is a bona-fide mistake which should be corrected by summoning the witness under Order 18 Rule 17 of the CPC. But Assistant Collector rejected the application by the impugned order dated 21.11.2006, aggrieved against which both the above revision petitions are preferred in this Court. 3. I have heard the learned counsels of both the parties. 4. The non-petitioners No. 1 to 9 (in case No. 8288/06) and the non-petitioners No. 1 and 2 (in case No. 8286/06) remained absent despite due service of notices on them. 5. The learned counsel for the petitioners contended that Mohan Lal (defendant) submitted his affidavit of evidence in the Court stating therein about documents of jamabandi and khasra girdawari, but erroneously these documents were not numbers as exhibits and the space was left blank. Therefore, a request was made to the Court under Order 18 Rule 17 of the CPC to recall and examine the witness so that documents already presented could be exhibited. At the most, the Trial Court could have levied cost, but the Trial Court was not right in rejecting the application. Therefore, the impugned order of Assistant Collector should be set aside and the application under Order 18 Rule 17 of the CPC should be allowed. 6. The learned Additional Government Advocate contended that the applications were filed after delay of an year. However, the learned Additional Government Advocate had no objection to allowing of the applications. 7. Therefore, the impugned order of Assistant Collector should be set aside and the application under Order 18 Rule 17 of the CPC should be allowed. 6. The learned Additional Government Advocate contended that the applications were filed after delay of an year. However, the learned Additional Government Advocate had no objection to allowing of the applications. 7. I have given thoughtful consideration to the rival contentions, perused the impugned order and gone through the material on record. 8. Perusal of the Court files- (suit No. 228/89) and suit No. 352/02 shows that affidavits of the witness Mohan Lal son of late Balu Ram are inclosed in both the files; but in para 1 of the affidavit there is mention of jambandi and survey sheet and `Naksha Mauka' (site report and `Simankan Mauka report' (report of boundary demarcation); but their exhibit numbers are not written. It is evident from the record that these documents were already presented in the Court but their exhibit numbers were not written. It is the duty of the Court also to ensure that in the given affidavit of a witness, exhibit-numbers of the documents are duly written; but the Trial Court failed in its duty to ensure writing of the exhibit numbers in statement as well as on the documents presented. The space in the affidavits for the indication of the exhibit numbers is left blank. The trial should not have allowed this to happen. On realising this mistake, an application under Order 18 Rule 17 of the C.P.C. was submitted by the petitioner to recall and examine the witness in order to write exhibit numbers in the statement and on the document already submitted. Assistant Collector should have allowed this application and rectified the mistake of non-writing of the exhibit numbers of the document submitted and referred to in the affidavits. By not doing so, Assistant Collector has committed illegality and material irregularity. As such the impugned order deserves to be set aside. 9. In view of the foregoing discussion, both the revision petitions succeed. Both the application filed under Order 18 Rule 17 of the CPC in suit No. 228/29 and 352/02 are allowed. The witness Mohan Lal will be recalled and examined only with regard to the documents already submitted and mentioned in the affidavit with recording of appropriate exhibit numbers. Pronounced.