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Madhya Pradesh High Court · body

2017 DIGILAW 599 (MP)

Dheeraj Singh v. Komal Singh

2017-05-02

ANAND PATHAK

body2017
ORDER 1. The present petition has been preferred by the plaintiff being crestfallen by the order dated 10.7.2015 Annexure P-1 passed by the trial Court, whereby the application preferred by the petitioner under Order 13 rule 10 CPC has been rejected. 2. Facts in brief are that petitioner/plaintiff has instituted a suit for declaration of title and permanent injunction with respect to suit property. Written statement has been filed by the respondents and contested the claims made by the petitioner. 3. In earlier round of litigation, wherein the present respondent No.1- Komal was also part of the suit proceedings (Civil Suit No.4-A/2005) as defendant and wherein the present respondent No.1 has admitted certain facts in the written statement regarding execution of sale deed and petitioner is the beneficiary of said sale deed. Therefore, it assumes significance if petitioner leads that admission of respondent No.1 in the present suit proceedings. Therefore, petitioner obtained certified copy of the written statement and his testimony in the earlier Civil Suit No.4-A/2005 and now, he wants to place those documents before this Court in original through bringing the said documents from the said suit proceedings (the said suit has been disposed of) to this Court and, therefore, application under Order 13 rule 10 CPC has been preferred. 4. According to the learned counsel for the petitioner, once the petitioner has filed the certified copy of the order but the execution of the same has been rebutted by the respondent No.1. Therefore, it is imperative for the petitioner to bring the relevant documents from the said trial Court (Civil Judge, Class II, Khaniyadana) to confront the respondent No.1 at the time of evidence. 5. According to him, plaintiff's evidence has completed and its the turn of the defendant to lead evidence and, therefore, petitioner wants to bring the relevant record of Civil Suit No.4-A/2005 dated 8.3.2006. 6. He further clarifies that the Court is same because earlier the Civil Judge, Class II had decided the Civil Suit vide No.4-A/2005 and in the same Court present suit is underway. Therefore, it is only calling record from same Court but of different civil suit proceedings. 7. He relied upon the judgment rendered by this Court in the matter of “Mangilal Gamerji v. Mangilal Chandulal Ji [ 1984 MPWN 491 ].” 8. Therefore, it is only calling record from same Court but of different civil suit proceedings. 7. He relied upon the judgment rendered by this Court in the matter of “Mangilal Gamerji v. Mangilal Chandulal Ji [ 1984 MPWN 491 ].” 8. On the other hand, learned counsel for the respondent submits that order impugned does not deserve any interference. According to him, petitioner has already submitted certified copy of the order, and therefore, no need exists for calling the record under jurisdiction as referred above. 9. He relied upon the judgment rendered by Rajasthan High Court in the matter of “Paryavaran Avm Manav Vikas Sansthan, Udaipur v. Hindustan Agro Chemicals Ltd. and others [2011 (55) R.C.R.(Civil) 284].” 10. Heard the counsel for the parties at length and perused the record. 11. Petitioner/plaintiff has filed a suit for declaration of title and permanent injunction. He is seeking declaration of tittle on the basis of sale deed dated 8.6.2005 executed by Maradan Singh, Ramswaroop, Betibai and Rabudibai as well by Komal, respondent No.1. 12. According to the petitioner, the respondent No.1- Komal had 1/4th (one fourth) share in the said suit property and all the four persons as mentioned above have engaged in a litigation vide Civil Suit No.4-A/2005 at an earlier point of time. In the said proceedings, present respondent No.1 admitted the execution of sale deed dated 8.6.2005 in favour of present petitioner (in his written statement as well as his testimony). The relevant testimony of the respondent No.1 finds place as Annexure P-5. 13. Petitioner has already filed the certified copy of written statement and testimony of respondent No.1, in which respondent No.1 has taken an ambivalent approach, thus precipitating cause of action for the petitioner to file an application under Order 13 rule 10 CPC, so that facts can be confronted with the respondent No.1 at the time of his deposition. Plaintiff can always confront the witness by showing necessary documents to him in accordance with law at the time of deposition. Similarly, respondent No.1 had executed the document, therefore if the documents in original are shown to him then things would be crystallized and controversy can be settled conclusively. Therefore, Chapter V of the Madhya Pradesh Civil Courts Act, 1958 have also provided the mechanism in this regard. Similarly, respondent No.1 had executed the document, therefore if the documents in original are shown to him then things would be crystallized and controversy can be settled conclusively. Therefore, Chapter V of the Madhya Pradesh Civil Courts Act, 1958 have also provided the mechanism in this regard. Thus, in the given fact situation of the case, the contentions raised by the petitioner gains grounds and, therefore, the order under challenge deserves to be set aside. Despite due diligence, the petitioner could not lay hands over the record in original and therefore, he produced the relevant record through certified copy. Therefore, in the given fact situation of the case, petition is allowed and resultantly, application preferred by the petitioner is treated as allowed with the further direction to the trial Court to proceed in respect of compliance of the order to call for the relevant record from the same Court pertaining to Civil Suit No.4-A/2005 before the next date of hearing which is fixed for evidence. 14. With the aforesaid direction, petition stands allowed.