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2016 DIGILAW 1182 (MP)

Kasturi Bai v. Umesh Saini

2016-12-21

VIJAY KUMAR SHUKLA

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ORDER : Vijay Kumar Shukla, J. Respondent has entered his appearance on advance copy and with consent of both the parties the petition is heard finally. 2. This is a petition under Article 227 of the Constitution of India. 3. The petitioner/plaintiff has challenged the legality and validity of the order dated 18.11.2016 whereby the application filed by the petitioner/plaintiff under Order 16, Rule 1 read with Section 151 of the Civil Procedure Code (Hereinafter referred to as the CPC) to issue summons to the Nazul Officer to produce the original record of mutation proceedings bearing No. 343/P- 12/2010-11 titled as Umesh Saini v. State of M.P. to establish the fact that the revenue authority in connivance with the respondent/defendant had issued the alleged no-objection certificate on the basis of the forged signature of Kasturi Bai and there was serious illegality committed by the revenue authority. The petitioner has further alleged that she had filed an application for obtaining the certified copy of those proceedings but the same were not furnished to her. The petitioner/plaintiff has filed a Civil Suit against the respondent/defendant for declaration and permanent injunction. The case of the plaintiff is that, due to her personal need she has sold a plot ad-measuring 22x30 = 600 Sq. feet out of khasra no. 1172 by a registered sale deed dated 12.12.2006 and the description of boundary of the said plot was given as under:- "In North - Drain and thereafter 10 feet road. In South - Ownership land of the plaintiff. In East - Drain and thereafter 10 feet road. In West - Ownership land of the plaintiff." 4. It is further alleged that the respondent/defendant has illegally started construction work on the piece of land, other than the land sold to him belonging to the ownership of the petitioner/plaintiff. The petitioner/plaintiff raised objections with the respondent defendant but they continued to carryout the construction. 5. The respondent/defendant filed written statement inter alia denying the averments of the petitioner/plaintiff. The respondent/defendant averred that they carried out the construction work on the piece of land which is sold to him and denied that any construction was being carried out by defendant on the land belonging to the petitioner/plaintiff. Along with the written statement the respondent/defendant filed a mutation order, no objection certificate and photographs of the house of the respondent/defendant. The respondent/defendant averred that they carried out the construction work on the piece of land which is sold to him and denied that any construction was being carried out by defendant on the land belonging to the petitioner/plaintiff. Along with the written statement the respondent/defendant filed a mutation order, no objection certificate and photographs of the house of the respondent/defendant. After filing the same, the petitioner filed an application under Order 16, Rule 1 of CPC. 6. The learned trial Court while considering the various application also considered the application filed under Order 16, Rule 1 CPC filed by the plaintiff. The learned trial Court without assigning the proper reasons, rejected the said application merely on the ground that the plaintiff is free to obtain these documents. 7. The Court below has failed to consider the averments made by the plaintiff regarding her forged signature in no objection certificate proceedings and sufficient reasons shown to summon the witness. The legality and validity of the impugned order has to be examined on the anvil of the facts of the present case, the provisions of Order 16 CPC and the law laid down by this Court in Gopal Das Renwal v. Smt. Keepika Jain 2010(1) MPLJ 594 and Chotelal S/o Heeralal v. Sodarbai D/o Rajaram 2005(4) MPLJ 580 . 8. The provision of Section XVI reads as under: "Order 16 - SUMMONING AND ATTENDANCE OF WITNESSES. 1. List of witnesses and summons to witnesses - (1) on or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Courts a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit to call, whether by summoning through Court or otherwise, any witness, other than those whose names appears in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to maintain the name of such witness in the said list. (3) The Court may, for reasons to be recorded, permit to call, whether by summoning through Court or otherwise, any witness, other than those whose names appears in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to maintain the name of such witness in the said list. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court in this behalf within five days of presenting the list of witnesses under sub-rule (1)." 9. A perusal of the Order 16, Rule 1 (3) of CPC demonstrate that when a party prays for summoning of witness to the Court, than he is to assign sufficient and adequate reasons for seeking assistance of the Court for summoning the witness. This court in the case of Chhotelal S/o Heeralal (supra) has held as under: 5. After having heard learned counsel for the parties and going through the material available on record, in the considered opinion of this Court, order impugned cannot be sustained and as such it deserves to be quashed. Learned Court below in the facts and circumstances of the case taking parochial view performed ritualistic observances of the rules of procedure. It would be useful to keep in mind that rules of procedure are handmaid of justice. Rules of procedure are not by themselves an end but the means to achieve ends of justice. It is well settled that procedural laws are meant to advance justice and not to hinder or thwart it. The language employed by the draftsman of procedural law may be liberal or stringent but the fact remains that the object of prescribing procedure is to advance the cause of justice and rigid approach divorced from ground realities may lead to miscarriage of justice on the anvil of mechanical exercise of description vested bylaw. In the considered opinion of this Court, in the facts and circumstances of the present case, trial Court ought to have given at least one fair opportunity to petitioner to summon defense witnesses through the Court. Since trial court fail to exercise jurisdiction vested in it by law or at any rate acted with material irregularity, order impugned cannot be sustained in law and accordingly it is hereby set aside. 10. Since trial court fail to exercise jurisdiction vested in it by law or at any rate acted with material irregularity, order impugned cannot be sustained in law and accordingly it is hereby set aside. 10. Learned counsel for the petitioner further submits that there was no notice in the proceeding of no objection certificates which has been filed by the respondent/defendant. It is submitted that the signature of the plaintiff on the reverse side of publication dated 14.07.2011 issued by the Tehsildar, Nuzul, district Bhopal filed at page 62-63 of the petition is forged. The said fact was initially disputed by the respondent/defendant that there is no signature of the plaintiff in the proceedings of no objection certificates but when confronted with the signatures at page 63 of the record, the counsel for the respondents could not justify that how the signatures were shown in the record, when there was no signatures in the proceedings and no notice to the petitioner. 11. Thus the Court below has miserably failed to consider the reasons assigned in the application for summoning the witnesses which are sufficient and adequate for summoning the witness in the interests of justice. 12. I am of the considered view that the learned trial Court has failed to assign proper reasons for rejecting the application of the petitioner filed under Order 16, Rule 1 CPC. For the reasons stated in the application and on the basis of the record, the impugned order is set aside. 13. Hence the petition is allowed.