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2016 DIGILAW 695 (RAJ)

Mool Chand v. LRs of Kishore Mal

2016-05-17

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. 1. This writ petition has been Filed by the petitioner aggrieved against the orders dated 31.1.2003 and 14.2.2003 passed by the Trial Court, whereby the petitioners' evidence was indicated as closed at petitioners' own instance and application filed by the petitioners for correction in the order/recall of the order has been rejected, respectively. 2. The petitioner filed a suit for declaration of way and permanent injunction, a written statement was filed denying petitioners' claim and issues were framed by the Trial Court. The petitioner filed list of witnesses; where after statements of PW-1 and PW-2 were recorded on 11.10.2001 and 29.11.2001; where after petitioners filed process fee for summoning witnesses Govind and Patwari; where after statement of PW-3 was recorded and when the witnesses summoned did not appear despite service, bailable warrants were ordered to be issued, regarding which, the petitioners filed process fee. Where after on one occasion, the matter was adjourned due to strike and on one occasion, the Presiding Officer was on leave and, thereafter on 31.1.2003, it was noticed by the Trial Court that the petitioners plaintiffs close their evidence keeping their right to rebuttal reserve. Where after on 14.2.2003, the petitioner filed application under Section 152 C.P.C. read with Order 18, Rule 17 C.P.C., supported by affidavit, inter-alia, indicating that the Counsel for the petitioners did not make any prayer for closing of the evidence on 31.1.2003 and the order indicated in the order-sheet appears to be wrongly passed and the clerical error in this regard deserves to be corrected. It was further submitted that the petitioners want to lead evidence of the summoned witnesses and, therefore, they may be permitted to do so. 3. No reply to the application was filed by the defendants and on the same day i.e. on 14.2.2003, the Trial Court after noticing the application, without saying anything further dismissed the application. 4. It is submitted by learned Counsel for the petitioners that the Trial Court was not justified in passing the orders dated 31.1.2003 and 14.2.2003, inasmuch as, neither the Counsel for the petitioners sought closing of the evidence on 31.1.2003 nor the order dated 14.2.2003 could be passed by the Trial Court as it has failed to discuss the contentions raised by the petitioners. It is submitted that the petitioners as vigilant litigants had complied with all the directions passed by the Trial Court for leading evidence, summoning witnesses and filing the required process fee etc. and as such there was no occasion for the petitioners to drop the said official witnesses, who are crucial for proving petitioners' case and, therefore, there was no reason for the Trial Court not to accept the application filed by the petitioners for correcting the order dated 31.1.2003. It was prayed that the writ petition be accepted. 5. Learned Counsel for the respondents supported the orders impugned. It was submitted that the Counsel himself closed the evidence and there was nothing in the application dated 14.2.2003 filed before the Trial Court to recall the order and it is the Trial Court only, which is competent to deal with the such aspect. 6. I have considered the submissions made by learned Counsel for the parties and have perused the material available on record. 7. It is well settled that whatever has transpired before the Court can only be examined by the same Court as held by Hon'ble Supreme Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak & Anr., AIR 1982 SC 1249 . However, the said law specifically provides that if the parties want to contradict what is indicated in the order, it would have to approach the same Court. 8. The petitioners immediately after passing of order dated 31.3.2003 (sic 31.1.2003), approached the Trial Court by filing application on 14.2.2003 and a bare look at the order dated 14.2.2003 passed by the Trial Court indicates that it did not deal with the contentions raised in the application and by one line order, rejected the application. It may also be noticed that no reply to the application was filed by the defendants. 9. There is substance in the submissions made by learned Counsel for the petitioners that there was no occasion for the petitioners to close their evidence after having taken repeated steps for the purpose of enforcing presence of the official witnesses, who were named in the list of witnesses and regarding whom, summons were got issued by the petitioners and on their non-appearance, bailable warrants were ordered to be issued and the petitioners had filed the process fee immediately. 10. 10. In view of the fact that apparently there was no occasion for the Counsel for the petitioners-plaintiffs to seek closure of the evidence, it is apparent that the order-sheet dated 31.3.2003 came to be drawn by the Court in a routine manner without any submission being made by the Counsel and, therefore on the application filed by the petitioners, the Trial Court should have properly investigated the issue and pass appropriate orders. 11. Normally this Court would be remanded back the matter to the Trial Court for passing a fresh order instead of a cursory order dated 14.2.2003. However, looking to the circumstances of the case, where already 13 long years have passed since passing of the order dated 14.2.2003, in the interest of justice, the orders dated 31.1.2003 and 14.2.2003 are quashed and set aside. 12. The Trial Court is directed to provide opportunity to the petitioners to lead evidence qua the witnesses named in the list of witnesses by seeking their presence through Court process. 13. Looking to the nature of suit and the fact that the same has remained pending for over a decade, the Trial Court is directed to deal with the suit as expeditiously as possible. The writ petition is allowed accordingly.