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Madhya Pradesh High Court · body

2012 DIGILAW 788 (MP)

Asif Ali Kazi v. Shama Bee

2012-08-08

N.K.MODY

body2012
ORDER 1. Being aggrieved by award dated 6.8.2009 passed by IV Civil Judge, Class I, Ratlam in Civil Suit No.7-A/2009, present appeal has been filed. 2. Short facts of the case are that a suit for declaration and permanent injunction was filed by the appellant against respondent. During pendency of the suit, appellant tendered the document in evidence alleging that the document is the memorandum of family arrangement. The admissibility of the document was challenged by the respondent on the ground that the document is the deed of partition and document is not properly stamped, therefore, is inadmissible in evidence. Vide order dated 26.4.2008 learned Court below directed to consider the objection raised at appropriate stage.An application was filed for reviewing the order dated 26.4.2008 which was dismissed on 23.6.2008. Again another application was filed by the respondent which was dismissed on 8.4.2009, thereafter, 3rd application was filed which was allowed by the impugned order dated 8.4.2009, wherein learned Court below observed that orders dated 8.4.2009, 23.6.2008 stand quashed and the document is sent to the Collector of Stamps against which present appeal has been filed. 3. Learned counsel for the appellants submits that the impugned order passed by the Court below is illegal, incorrect and deserves to be set aside. Learned counsel placed reliance on the provision under Order XLVII R.9 CPC which reads as under : “9. Bar of certain application. -- No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained.” 4. Learned counsel submits that in view of the aforesaid position of law the application itself not admissible in evidence. Learned counsel further submitted that limitation for filing the application for reviewing the order is 30 days as per Article 122 of the Limitation Act, while the application was filed by respondent after lapse or more than two years. It is submitted in the facts and circumstances of the case, appeal filed by the appellant be allowed the impugned order be set aside. 5. Learned counsel for the respondent submits that no illegality has been committed by the Court below in passing the impugned order. It is submitted that in the facts and circumstances of the case, appeal filed by the appellant be dismissed. 6. 5. Learned counsel for the respondent submits that no illegality has been committed by the Court below in passing the impugned order. It is submitted that in the facts and circumstances of the case, appeal filed by the appellant be dismissed. 6. From perusal of the record, it appears that earlier order is dated 26.4.2008 whereby learned Court below has directed that question of admissibility of the document shall be considered at the relevant time. In the facts and circumstances of the case, there would have no question of reviewing the order. Moreover, repeated applications are not admissible u/o XLVII R.9 CPC. Apart from this, application has to be filed within a period of 30 days. 7. In the facts and circumstances of the case, appeal filed by the appellant is allowed and the impugned order passed by the learned Court below is set aside with a direction to the learned Court below to determine whether the document is admissible in evidence or not by passing appropriate order at the time when the document is tendered in evidence. 8. With the aforesaid directions the appeal stands disposed of.