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2014 DIGILAW 1022 (JHR)

Chhoti Mehta v. Awadh Kishor Singh

2014-10-08

SHREE CHANDRASHEKHAR

body2014
Order Aggrieved by orders dated 03.02.2014 and 05.04.2014, the petitioners have approached this Court. 2. The brief facts of the case are that, initially the petitioners/plaintiffs filed Title Suit No. 45 of 1997 in the Court of Munsif, Koderma in which the plaint was returned on the ground of pecuniary jurisdiction of the Court. Subsequently, the petitioners-plaintiffs filed Title Suit no. 05 of 2001 in which the application dated 23.07.2011 was filed calling for the record of Title Suit No. 45 of 1997 taking a plea that in the present suit the defendants have filed a 'Hukumnama' in support of their case which is different from the 'Hukumnama' filed in the earlier proceeding in Title Suit No. 45 of 1997. The said application was dismissed vide order dated 03.02.2014 and a review application was filed on the ground that though four applications were heard and decided vide order dated 03.02.2014, the application dated 05.09.2011 was not heard and decided by the learned Court. The review application was also dismissed and therefore, the present writ petition has been filed. 3. The learned counsel appearing for the petitioners has submitted that in the earlier proceeding though the defendants appeared and filed 'Hukumnama' in support of their case however, since the plaint was returned the said document was not marked and exhibited therefore, copy of the same was not given to the plaintiffs. During the trial of the Title Suit No. 05 of 2001 when the evidence was led, a specific question with respect to 'Hukumnama' filed in earlier proceeding that is Title Suit No. 45 of 1997 was put to the witness who denied the existence of a different 'Hukumnama' filed in Title Suit No. 45 of 1997 and therefore, it necessitated filing of the application dated 23.07.2011 calling for the record of Title Suit No. 45 of 1997. The learned counsel for the petitioners has referred to Order XIII Rule 10 of the C.P.C. and submitted that even the Court at its own motion or on the application filed by a party to the suit, can call for the record of another case pending in another Court. In the present proceeding on the basis of a forged and fabricated 'Hukumnama' the defendants are trying to dispute the claim of the plaintiffs and therefore, it was necessary for the ends of justice to call for the record of Title Suit no. In the present proceeding on the basis of a forged and fabricated 'Hukumnama' the defendants are trying to dispute the claim of the plaintiffs and therefore, it was necessary for the ends of justice to call for the record of Title Suit no. 45 of 1997 which would conclusively establish that the claim raised by the defendants is based on a forged 'Hukumnama'. It is further submitted that the photo copy of two 'Hukumnamas' which are in possession of the plaintiffs would demonstrate that both are two different 'Hukumnamas' and therefore, to ascertain the veracity of the 'Hukumnama' filed by the defendants in Title Suit no. 05 of 2001, the record of Title Suit no. 45 of 1997 should have called for by the learned Trial Court. 4. I have carefully considered the submission of the learned counsel for the petitioners and perused the documents on record. 5. It is not in dispute that initially the suit was filed in the year, 1997 in which the plaint was returned on the ground of lack of pecuniary jurisdiction of the Court and subsequently, the plaintiffs instituted Title Suit No. 05 of 2001. The defendants filed their written statement and asserted their claim on the basis of a 'Hukumnama'. After the written statement was filed documents were produced for admission and denial and an opportunity was afforded to the parties to the suit to admit or deny the documents produced by the parties. It is not the case of the plaintiffs that the plaintiffs denied the existence of the 'Hukumnama' filed by the defendants in the proceeding of Title Suit No. 05 of 2001. It was open to the plaintiffs to raise such a plea at the first instance itself and the plaintiffs should have filed application for verification of the genuineness of 'Hukumnama' produced by the defendants in the proceeding of Title Suit No. 05 of 2001 which admittedly has not been done by the plaintiffs. The plaintiffs filed as many as four different applications dated 10.02.2011, 20.02.2011, 10.08.2011, 05.09.2011 and those applications were kept pending for more than two years and those applications were pressed only on 03.02.2014. The learned Trial Court has found that the applications were filed only to delay the proceeding of the Title Suit No. 05 of 2001. The plaintiffs filed as many as four different applications dated 10.02.2011, 20.02.2011, 10.08.2011, 05.09.2011 and those applications were kept pending for more than two years and those applications were pressed only on 03.02.2014. The learned Trial Court has found that the applications were filed only to delay the proceeding of the Title Suit No. 05 of 2001. The application for review was filed on the ground that there is no specific order for disposing of the application dated 05.09.2011 and the learned Trial Court has recorded a specific finding that application dated 05.09.2011 was also considered and rejected by the Trial Court vide order dated 03.02.2014. Referring to the provision under Order XIII Rule 10, I find that under sub-Rule (3) there is a specific bar for not taking and considering a document, which cannot be admitted in evidence by the Trial Court. The petitioners have specifically pleaded that in the proceeding of Title Suit No. 45 of 1997, the plaint was returned and thus, in such view of the matter it cannot be said that the alleged 'Hukumnama' which was allegedly filed by the defendants in proceeding of Title Suit No. 45 of 1997 was produced as evidence in Title Suit No. 45 of 1997. In view of the specific bar under Order XIII Rule 10(3) C.P.C. also the application filed by the plaintiffs could not have been considered and allowed by the learned Trial Court. I find no infirmity in the impugned orders dated 03.02.2014 and 05.04.2014 and accordingly, the writ petition is dismissed. Petition dismissed.