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2015 DIGILAW 1538 (JHR)

Pochan Mahto v. Mundrika Mahto

2015-12-10

SHREE CHANDRASHEKHAR

body2015
ORDER : 1. Aggrieved by order dated 29.01.2014 in Title Appeal Case No. 18 of 2005, the present writ petition has been filed. 2. The petitioners are defendants in Title Suit No. 408 of 1997. The suit was instituted challenging judgment and decree passed in Title Suit No. 19 of 1959. The said suit was decreed vide judgment and order dated 08.08.2005, against which the petitioners preferred Tittle Appeal No. 18 of 2005. In the pending appeal the petitioners filed application under Order XLI Rule 27 C.P.C. on 03.06.2013 seeking permission to adduce additional evidence by producing certified copy of the plaint of Title Suit No. 19 of 1959. The said application has been dismissed vide impugned order dated 29.01.2014. Aggrieved, the petitioners have approached this Court by filing the present writ petition. 3. The learned counsel for the petitioners submits that, the petitioners who are purchasers from Patia Mahatowain, have a subsisting interest in the suit property. Title Suit No. 19 of 1959 was disposed of in terms of a compromise decree however, subsequently, the legal heirs and successors of the said Patia Mahatowain instituted Title Suit No. 408 of 1997. The schedule to Title Suit No. 19 of 1959 would disclose the exact extent of the properties held by the said Patia Mahatowain and therefore, the plaint of Title Suit No. 19 of 1959 is a necessary document for arriving at a just conclusion in the case. 4. It is not in dispute that the compromise petition and judgment and decree in Title Suit No. 19 of 1959 have been brought on record of Title Suit No. 408 of 1997. In the application dated 03.06.2013 the petitioners have admitted that they have produced certified copy of decree sheet and compromise petition filed by the parties in Title Suit No. 19 of 1959. Except stating that inspite of exercise of due diligence the certified copy of plaint of Title Suit No. 19 of 1959 could not be brought on record of Title Suit No. 408 of 1997, the petitioners have not disclosed a reason for not producing the plaint of Title Suit No. 19 of 1959. Except stating that inspite of exercise of due diligence the certified copy of plaint of Title Suit No. 19 of 1959 could not be brought on record of Title Suit No. 408 of 1997, the petitioners have not disclosed a reason for not producing the plaint of Title Suit No. 19 of 1959. Moreover, in view of the documents produced by the petitioners vide Exhibits B, C and D which are certified copy and order sheet as well as compromise petition in Title Suit No. 19 of 1959, the application seeking permission to adduce additional evidence was misconceived. The contention that the application under Order XLI Rule 27 C.P.C. should be considered at the stage of final hearing, in view of the aforesaid facts, is liable to be rejected. 5. I find no merit in the writ petition and accordingly, it is dismissed. 6. I.A. No. 4104 of 2014 stands dismissed.