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2017 DIGILAW 1642 (RAJ)

MANNA LAL v. BHURALAL

2017-07-25

DINESH CHANDRA SOMANI

body2017
ORDER : Dinesh Chandra Somani, J. The instant petition under Article 227 of the Constitution of India has been filed by the plaintiff-petitioner assailing the order dated 13.7.2010 passed by the Civil Judge (Junior Division), Behror, District Alwar in Civil Suit No. 34/157/2003 titled as Manna Lal v. Bhura Lal & Ors., whereby the learned trial Court has dismissed the application filed by the plaintiff-petitioner under Order 7, Rule 14 (3) and Order 18, Rule 17 read with section 151 CPC. 2. Skeletal material facts necessary for disposal of this petition are that the plaintiff-petitioner filed a civil suit against the defendant-respondents for permanent injunction stating therein that the plot in dispute belongs to his ancestors and he is peacefully using the same for his personal use, but now the defendant/respondents are trying to interfere in the peaceful possession and prayed to restrain the defendant/respondents by issuing permanent injunction. The defendant/respondents filed written statement denying averments made in the plaint and stated that the disputed property belongs to one Prahlad Balmiki, who sold the plot to Satyapal and Satyapal sold the same to Sunil Dhanka and handed over the possession to him. It is also stated that the defendant/respondents have no concern with the disputed property. After completion of pleadings of the parties, the learned trial Court framed issues on 27.4.2006. The plaintiff examined himself as PW.1 and produced affidavits of two witnesses Shyodayal and Kalicharan, but failed to produce the witnesses for cross-examination, therefore, the learned trial Court closed the plaintiff's evidence on 21.5.2008 and fixed the case for defendants' evidence. After completion of defendant's evidence, the case was fixed for final arguments. At the stage of final arguments, the plaintiff/petitioner filed an application under Order 7, Rule 14 (3) and Order 18, Rule 17 read with section 151 CPC, which came to be dismissed vide impugned order. Being dissatisfied with the impugned order, the plaintiff/petitioner has approached this Court by way of this petition. 3. At the stage of final arguments, the plaintiff/petitioner filed an application under Order 7, Rule 14 (3) and Order 18, Rule 17 read with section 151 CPC, which came to be dismissed vide impugned order. Being dissatisfied with the impugned order, the plaintiff/petitioner has approached this Court by way of this petition. 3. Learned counsel for the petitioner submits that the learned trial Court has not appreciated the fact that as soon as the petitioner received the documents, which he wanted to place on record, he gave the same to his earlier counsel but his earlier counsel could not place the same on record, which fact came to his knowledge after engaging another counsel and thereafter he moved an application for taking documents on record without any further delay. Learned counsel also submits that the documents i.e. affidavit of Prahlad executed on 11.3.2008, the will executed on 8.5.2009 and photographs of the property in dispute annexed with the application, are relevant documents and have important bearing on the matter in issue and prayed to quash and set aside the impugned order and allow the application moved by the plaintiff/petitioner for taking documents on record and to give opportunity to the petitioner to produce evidence. 4. Per contra, learned counsel for the defendant/respondents opposed the arguments of learned counsel for the petitioner and submits that the documents intended to be produced by the plaintiff, pertains to the year 2008 & 2009 and were in the power and possession of the plaintiff/petitioner, but he did not file the same in time, therefore, the plaintiff is guilty of latches and supported the impugned order passed by the learned trial Court and prayed to dismiss the petition being devoid of substance. 5. The plaintiff/petitioner moved an application under Order 7, Rule 14 (3) and Order 18, Rule 17 read with section 151 CPC mentioning therein that he handed over the documents to earlier counsel to be placed on record, but he did not file the same and this fact came to his knowledge when he engaged another counsel. The defendant/respondents have not rebutted the facts mentioned in the application filed by the plaintiff/petitioner. The defendant/respondents have not rebutted the facts mentioned in the application filed by the plaintiff/petitioner. The documents pertain to the year 2008 & 2009 and the application for taking the documents on record and giving one more opportunity to produce evidence was filed on 29.3.2010 thus, the delay caused in filing the application for taking the documents on record, cannot be termed as inordinate and unexplained delay. 6. Looking to the averments made by the defendant/respondents in their written statement, no prejudice will cause to them, if the application of the plaintiff/petitioner is allowed and the documents annexed with the application are taken on record and one more opportunity to lead evidence is granted to the plaintiff/petitioner. The defendant/respondents can be compensated with cost for the inconvenience caused to them due to said delay in filing the application. 7. In view of the discussions made above, if the impugned order passed by the learned trial Court is allowed to continue, it will be a manifest failure of justice. 8. In view of above, the petition is allowed and the impugned order dated 13.7.2010 passed by Civil Judge (J.D.), Behror is quashed and set aside and the application filed by the plaintiff/petitioner under Order 7, Rule 14 (3) and Order 18, Rule 17 read-with section 151 CPC dated 29.3.2010 for taking on record the aforesaid documents and providing one more opportunity to lead his evidence, is allowed on cost of Rs. 2500/-. The plaintiff/petitioner will produce his witnesses Shyodaylal and Kalicharan for cross-examination on their affidavits on the date to be fixed by the learned trial Court for this purpose. The defendant/respondents may also produce any documents in rebuttal of the documents filed by the plaintiff/petitioner with his application dated 29.3.2010. It is made clear that the payment of cost would be condition precedent and no further opportunity will be granted to the plaintiff/petitioner to produce his evidence. No order as to costs. 9. In view of above, the stay application also stands disposed of.