Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 1155 (MP)

Ashok Choudhary v. Gwalior Dairy Ltd.

2017-11-13

VIVEK AGRAWAL

body2017
ORDER : Petitioner has filed this writ petition under Article 227 of the Constitution of India being aggrieved by the order dated 24-11-2015 passed by Vth Additional District Judge Gwalior in Civil Suit No. 67A/14 whereby, three applications filed by the plaintiff under the provisions of Order 13, Rule 10 read with section 151, Civil Procedure Code, Order 7, Rule 14(3) read with section 151, Civil Procedure Code and one under Order 1, Rule 10 read with section 151, Civil Procedure Code have been rejected. 2. It is petitioner's contention that the first application under Order 7, Rule 14(3), Civil Procedure Code was filed for taking certain documents on record. Since, those documents were not legible, therefore, another application under Order 13, Rule 10, Civil Procedure Code was filed to summon records of such cases from the Revenue Authorities, certified copies of which were filed by the plaintiff under the provisions of Order 7, Rule 14(3), Civil Procedure Code. It is also submitted that plaintiff had filed an application under Order 1, Rule 10, Civil Procedure Code to implead the beneficiary of the will of Thakurdas s/o Manpal Choudhary namely Piyush Thapak s/o Kailash Narayan as a party. 3. Learned counsel for the petitioner submits that these three applications have been dismissed by the trial Court in a very casual manner without appreciating the facts in the correct perspective and also without taking cognizance of the fact that petitioner/plaintiff is the share holder of defendant No. 1/Gwalior Dairy Ltd. and once the documents were not readable, then application under Order 13, Rule 10 read with section 151, Civil Procedure Code was filed to call the original record and therefore these applications should have been allowed. It is also submitted that since defendant No. 3 Thakur Das was one of the purchasers of the disputed land and he died during the pendency of the proceedings, therefore, it was necessary to bring his legal heir Piyush Thapak on record as Piyush Thapak had inherited estate of said Thakur Das. 4. As far as the application under Order 1, Rule 10, Civil Procedure Code is concerned, the trial Court has recorded a finding that the plaintiff had earlier filed an application which was dismissed by the Court on the ground that no Will of Thakurdas was produced on record. 4. As far as the application under Order 1, Rule 10, Civil Procedure Code is concerned, the trial Court has recorded a finding that the plaintiff had earlier filed an application which was dismissed by the Court on the ground that no Will of Thakurdas was produced on record. The trial Court has held that this prayer has been made to implead Piyush Thapak as a party on the basis of certain surveys which have been filed on record, but it is settled principle of law that such survey entries do not create any right and therefore on the basis of survey entries whereby name of Piyush Thapak was mutated in relation to certain properties, he cannot be directed to be impleaded as a party and therefore application under Order 1, Rule 10, Civil Procedure Code has been rejected. 5. Learned counsel for the respondents on the other hand submits that since earlier application under section 151, Civil Procedure Code for impleading said Piyush Thapak was rejected, therefore, there was no justification for moving another application under Order 1, Rule 10 read with section 151 and such second application was hit by provisions of section 11 of Civil Procedure Code inasmuch as the principle of res judicata will be applicable between the two proceedings in the same suit. 6. As far as this objection of learned counsel for the respondents is concerned, this objection was not taken before the trial Court and trial Court has merely rejected this application on two counts namely Will was not produced on record and secondly the survey entries which reflect mutation of name of Piyush Thapak cannot be treated to have created any title in favour of such Piyush Thapak. 7. As far as these two aspects are concerned, this Court is of the opinion that at the stage of an application under Order 1, Rule 10, Civil Procedure Code the Court is only required to see that name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit be added. Thus, the provisions of Order 1, Rule 10(2), Civil Procedure Code can be resorted to even without application of either party. Thus, the provisions of Order 1, Rule 10(2), Civil Procedure Code can be resorted to even without application of either party. Thus the issue of vesting of the title in favour of such Piyush Thapak is an issue to be decided on adjudication of the case and appreciation of the evidence which was not the stage while considering application under Order 1, Rule 10, Civil Procedure Code. Therefore, this application deserves to be allowed and is allowed and to this extent order of the trial Court is set aside. 8. As far as application under Order 7, Rule 14(3), Civil Procedure Code is concerned, same has been partially rejected in respect of those documents which was not readable namely certified copies of the statements of Chandrakant, Suresh, Anand and Prakash. Similarly application which was filed for mutation and certified copy of Khasra panchshala. It was always open to the petitioner to have obtained readable copies of the documents and to produce them before the trial Court. Since the plaintiff has failed to discharge this burden and this Court has already held that provisions under Order 7, Rule 14(3), Civil Procedure Code is not a hollow formality but the rule of the Court is essential, therefore, the Court was very much within its right to exercise his discretion in refusing such leave on the ground that such documents were not readable. No explanation has been given as to why legible copies could not be produced and what prevented the plaintiff from filing it earlier at the time of filing of this suit and why such documents were not mentioned in the list to be produced under the provisions of Order 7, Rule 14(2), Civil Procedure Code. Therefore, in absence of such documents being entered into in terms of the provisions contained in Order 7, Rule 14(1) or Order 7, Rule 14(2), the Court was required to exercise its jurisdiction and discretion while granting leave. This Court is of the opinion that leave could not have been granted for admitting illegible documents and therefore that has been rightly discarded. 9. As far as application under Order 13, Rule 10, Civil Procedure Code is concerned, petitioner requested the Court to call for the mutation case No. 668/69-70/A-6 in which statements of defendants No. 4, 5, 6, 7 and 8 were recorded. 9. As far as application under Order 13, Rule 10, Civil Procedure Code is concerned, petitioner requested the Court to call for the mutation case No. 668/69-70/A-6 in which statements of defendants No. 4, 5, 6, 7 and 8 were recorded. Learned trial Court has recorded that the said case was decided by the Naib Tehsildar on 16-7-1975 and the suit land was recorded as that of the defendant No. 1/company as Bhumiswami. Thereafter the then manager of defendant No. 1 Omprakash Sharma wanted to manipulate such order and include his name in which regard case No. 01/B/121/83-84 was registered in which defendant Nos. 4 to 8 were party and finally Collector, Gwalior had passed order dated 10-11-1987 treating the land to be that of company i.e. Gwalior Dairy Ltd. Against this order, petition was filed before the High Court which was registered as case No. 560/88 which was dismissed by the High Court vide order dated 12-5-1988. Thereafter, SLP No. 16052/88 was filed which was dismissed by the Supreme Court. Thus, it is apparent that this issue that the suit land belongs to defendant No. 1/Gwalior Dairy Ltd has already been decided up to the level of Supreme Court. Therefore, in the light of this fact that land has been declared to be that of defendant No. 1 up to the Supreme Court, no justification was shown by the plaintiff to call for the Revenue record from the Court of Naib Tehsildar and accordingly the said application was dismissed as no justification could be furnished for calling of such record. 10. Order 13, Rule 10, Civil Procedure Code vests the Court with discretion to send for papers from its own record or from other Courts. Such discretion has been bestowed upon the Court to do complete justice between the parties and the person making such application is required to show on affidavit that how the record is material to the suit in which the application is made. In the present case, since such justification could not be given by the plaintiff to show that the record is material to the suit specially when the trial Court has recorded a finding that the title of defendant No. 1 has been established up to the Supreme Court, there is no fault, shortcoming or imperfection in rejecting the application under Order 13, Rule 10 read with section 151, Civil Procedure Code. Thus, this petition is partly allowed. It is directed that application under Order 1, Rule 10, Civil Procedure Code is allowed and the necessary party may be impleaded in the suit in place of Thakurdas as his legal heir. Order of the trial Court in regard to other two applications; under Order 7, Rule 14(3), Civil Procedure Code and Order 13, Rule 10, Civil Procedure Code, does not call for any interference and to that extent the petition is dismissed.