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2013 DIGILAW 1192 (MP)

Sukhia Bai v. Mahesh

2013-10-01

M.K.Mudgal

body2013
ORDER Mudgal. J. 1. The appellant/plaintiff has filed this appeal under section 96 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 20.1.2009 passed by the Court of X Additional District Judge, Gwalior (Shri Upendra Kumar Singh) in Civil Suit No. 50A of 2006 whereby, the suit filed by the plaintiff Sukhia Bai for declaration of title and permanent injunction in connection with the land bearing Survey No. 519 area 0.073 Hectare situated at village Kota Haar, Lashkar was dismissed. In this appeal, the appellant is referred as ‘plaintiff’ and respondents as ‘defendants’. 2. The facts, in brief, of the plaint are that the plaintiff has been in possession of the disputed land since 23.11.1991 within the knowledge of the defendants owing to which, she has acquired the right of Bhumiswami on the basis of adverse possession. The defendants No. 1 and 2 were trying to dispossess the plaintiff, hence, the suit was filed for the relief as stated earlier. 3. The defendants submitting their written statement have stated that the plaintiff has neither acquired the right of Bhumiswami nor is in possession of the disputed land. The entire suit is based on bogus facts. The plaintiff is not entitled to get any relief in the suit. 4. The appellant’s counsel submits that the impugned judgment and decree being contrary to law deserves to be set-aside as the opportunity for producing the evidence was not given by the learned trial Court. When the plaintiff’s evidence was closed on 16.10.2008, the case was fixed for order on the application under section 151 of CPC despite that the plaintiff’s evidence was closed without any sufficient reason, owing to which, the plaintiff was deprived to contest the suit on merits and so the order dated 16.10.2008 and the impugned judgment deserue to be set-aside. The appellant’s counsel further submits that the case be remanded to the learned trial Court for deciding the case afresh after giving proper opportunity to the plaintiff and the defendants for producing the evidence. 5. Learned counsel for the respondents submits that in spite of having been jiuen the sufficient adjournmets for producing the evidence to the plaintiff, she had utterly failed to produce the witnesses owing to which, the learned trial Court has not committed any error in closing the evidence of the plaintiff as well as passing the impugned judgment and decree. 5. Learned counsel for the respondents submits that in spite of having been jiuen the sufficient adjournmets for producing the evidence to the plaintiff, she had utterly failed to produce the witnesses owing to which, the learned trial Court has not committed any error in closing the evidence of the plaintiff as well as passing the impugned judgment and decree. Learned counsel further submits that if the case is remanded to the learned trial Court, heavy cost be imposed upon the plaintiff. 6. Heard the arguments of learned counsel and perused the record. 7. On perusal of the record, it becomes clear that the issues were framed on 4.12.2006, thereafter, the case was fixed for plaintiff’s evidence on 3.1.2007. On the due date, the Court employees were on strike, consequently, the case was fixed for plaintiff’s evidence on 3.2.2007. On the fixed date, the plaintiff filed an application under Order 6 Rule 17 read with section 151 of the CPC which was allowed vide order dated 28.2.2007. In consequence of the said amendment, the defendants incorporated consequential amendment in the written statement. Thereafter, the case was fixed for framing of additional issues, but no issue was framed. The date 19.6.2007 was fixed for plaintiff’s evidence but on the fixed date, neither the plaintiff nor her witnesses appeared before the Court, hence, a further date for evidence was fixed on 7.7.2007. On the fixed date, two statements of Buddharam and Hasina were produced by the plaintiff under order 18 Rule 4 of the CPC and two applications one under Order 7 Rule 14 (3) read with section 151 of CPC and second under section 6 Rule 17 of the CPC were filed by the plaintiff. The said applications were decided vide order dated 1.9.2007. 8. The document of agreement to sell was not duly stamped owing to which, the said document was sent to the Collector Stamp for validation, where from, the Court was informed to get the plaintiff to pay the amount of penalty as well as deficit stamp duty. In compliance with of the order of High Court after vacating the stay order again, the case was fixed for plaintiff’s evidence on 29.9.2008 with the direction for affording last opportunity to lead evidence. The said date was declared holiday, therefore, the further date was fixed on 30.9.2008 and thereafter the date was fixed for evidence on 3.10.2008. In compliance with of the order of High Court after vacating the stay order again, the case was fixed for plaintiff’s evidence on 29.9.2008 with the direction for affording last opportunity to lead evidence. The said date was declared holiday, therefore, the further date was fixed on 30.9.2008 and thereafter the date was fixed for evidence on 3.10.2008. On the fixed date, one plaintiff’s witness Buddharam appeared before the Court for cross-examination, however, the cross-examination was not conducted on behalf of the defendants on the ground that they would like to cross-examine the plaintiff first who could not appear in the Court due to his illness. On that date, the application under Order 11 Rule 14 read with section 151 of CPC was also filed by the plaintiff and case was fixed for consideration on 15.10.2008 of the said application as well as the plaintiff’s evidence. On the date, the plaintiff filed again an application under section 151 of CPC and case was fixed on 16.10.2008 for orders on the said application. However, the application under order 11 Rule 14 of the CPC filed on 3.10.2008 remained undecided. On 16.10.2008, rejecting the appreciation filed by the plaintiff on 15.10.2008, the right of the plaintiff’s evidence was closed and then case was fixed for defendants’ evidence. 9. When the plaintiff’s evidencewas closed on 16.10.2008, the case was not fixed for plaintiff’s evidence. In the said circumstances, it is evident that the learned trial Court has erred in closing the plaintiff’s evidence whereas, if the application under section 151 of the CPC filed by the plaintiff was dismissed by the trial Court, the further date for the plaintiff’s evidence ought to have been fixed by the Court. 10. In view of the facts, it is inferred that the learned trial Court has committed a mistake in closing the right to produce further evidence vide order dated 16.10.2008, though the plaintiff has prolonged the case and has not taken proper interest for producing the evidence, yet it was neceassary for the trial Court to have fixed the case for plaintiff’s evidence on 16.10.2008. Consequently, the plaintiff has been deprived from the right of producing the evidence on merit of the case and ultimately the suit was dismissed by the trial Court. 11. Consequently, the plaintiff has been deprived from the right of producing the evidence on merit of the case and ultimately the suit was dismissed by the trial Court. 11. Considering the said facts and circumstances of the case, this Court has arrived at the conclusion that the impugned judgment and decree do not deserve to be sustained. The case has been pending since the year 2006 hence, the defendants may be compensated in terms of cost. 12. Therefore, allowing the appeal, setting aside the impugned judgment and decree dated 20.1.2009, the case is remitted to the learned trial Court with a direction that after giving sufficient opportunity to the plaintiff and the defendants for producing the evidence, the case be decided on merits as per provisions of law. The plaintiff shall pay Rs. 2,000/- to the defendants as cost before producing her evidence. The learned trial Court is expected to decide the case within six months from the date of receiving the record of the case. The parties are directed to appear before the trial Court on 12.11.2013. The office is directed to the send back the record ensuring that the record reaches the trial Court before the fixed date.