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2014 DIGILAW 1013 (JHR)

Dwarika Sonar v. Bindwa Devi

2014-10-08

SHREE CHANDRASHEKHAR

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Order Aggrieved by orders dated 14.09.2011 and 30.11.2011/01.12.2011 in Title Suit No. 4 of 2008, the petitioners have approached this Court by filing the present writ petition. 2. Mr. V. Shivnath, the learned Senior Counsel appearing for the petitioners submitted that a Title Suit being Title Suit No. 4 of 2008 was filed in which the petitioners filed a written statement on 24.08.1989, specifically asserting that on 23.04.1989 a Panchayati was held between the parties. However, since the original document, i.e. the Panchayati dated 23.04.1989 was in possession of the plaintiff, the same could not be brought on record by the defendants and therefore, an application dated 15.07.2011 was filed seeking permission of the Court to lead secondary evidence by bringing on record the photocopy of Panchayati dated 23.04.1989. A rejoinder to the application dated 15.07.2011 was filed by the plaintiffs specifically denying the Panchayati organised between the parties on 23.04.1989. In such a situation, the petitioners filed an application dated 04.08.2011 for directing the plaintiffs to produce original of the Panchayati dated 23.04.1989. Both the applications were heard by the learned trial court and dismissed vide orders dated 14.09.2011 and 30.11.2011/01.12.2011. The learned Senior Counsel has further submitted that since the plaintiffs' own witness namely, Kishundhari Sonar (P.W. 3) stated in his Examination-in-Chief that a Panchayati was held between the parties and in his Cross-Examination also he has admitted that on 23.04.1989 a Panchayati was held between the parties in which it was decided that each party would get 1/7th share in the suit property, the defendants' application seeking permission to lead secondary evidence by producing photocopy of the Panchayati dated 23.04.1989 could not have been dismissed by the learned trial court. 3. Per contra, Mr. V.P. Singh, the learned Senior Counsel appearing for the respondents has contended that though the suit was filed in the year, 2008 and a written statement was filed way back on 30.04.2008 however, only at the fag end, i.e., at the time of final arguments the defendants filed an application seeking permission to lead secondary evidence which has rightly been dismissed by the learned trial court vide order dated 30.11.2011/01.12.2011. It is further submitted that since the plaintiffs have specifically denied existence of Panchatyati allegedly held on 23.04.1989, the application dated 04.08.2011 for directing the plaintiffs to produce the original of the Panchayati dated 23.04.1989 could not have been allowed and has rightly been dismissed by the learned trial court. It is thus submitted that only to delay the final decision in the trial suit and to deny the plaintiffs their legitimate claim in the suit property, the defendants have filed the applications dated 15.07.2011 and 04.08.2011 which have rightly been dismissed by the learned trial court. 4. I have carefully considered the submissions of the learned Senior Counsel appearing for the parties and perused the documents on record. 5. From the materials on record, it appears that in the written statement filed on behalf of the defendants took a specific stand that a Panchayati was held on 23.04.1989 between the parties. P.W. 3 namely, Kishundhari Sonar has stated in his Examination-in-Chief and admitted during the Cross-Examination that there was a Panchayati held between the parties on 23.04.1989 in which it was decided that each party would get 1/7th share in the suit property. A perusal of the impugned order dated 15.07.2011 would disclose that the said application has been dismissed only on the ground that the application dated 04.08.2011 has been dismissed. It appears from the documents and materials produced on record that a Panchayati was held on 23.04.1989. The application dated 15.07.2011 filed by the defendants seeking permission to bring on record the photocopy of the said Panchayati on 23.04.1989 could not have been dismissed by the learned trial court in view of the evidence lead by the plaintiffs themselves. It would be another aspect that the admissibility of the said document could have been decided by the learned trial court in accordance with law and it was open to the learned trial court not to admit the said document in evidence however, without arriving at a decision with respect to admissibility of a document, the application seeking permission to bring on record a document could not have been dismissed by the learned trial court. I am of the opinion that the impugned order dated 30.11.2011/01.12.2011 requires interference and accordingly, it is set-aside. I am of the opinion that the impugned order dated 30.11.2011/01.12.2011 requires interference and accordingly, it is set-aside. In so far as, the impugned order dated 14.09.2011 which was passed on the application dated 04.8.2011 for directing the plaintiffs to produce original of Panchayati dated 23.04.1989 is concerned, I find no infirmity in the said order and accordingly, so far the challenge to impugned order dated 14.09.2011 in the present writ petition is concerned, it fails. 6. The writ petition is partly allowed. The impugned order dated 30.11.2011/01.12.2011 is set-aside and the learned trial court is directed to consider the admissibility of the document in question and proceed in the matter, in accordance with law.