Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 1703 (JHR)

Uma Devi v. Raghubir Singh

2018-08-02

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - Sudarshan Shrivastava, the learned counsel appears for the petitioners. 2. Mr. Ashutosh Kumar Singh, the learned counsel appears for respondent nos.1,2,4,5,7,9,10,12,14 & 17, Mr. Tejo Mistry, the learned counsel appears for respondent no.18 and Md. Abdul Wahab, the learned counsel appears for respondent nos.19 and 20. 3. The petitioners have filed an affidavit on service of Dasti summons upon the respondents. It is stated that respondent nos.1 to 17 have refused to accept Dasti summons, however, respondent nos.18, 19 and 20 have accepted Dasti summons. 4. The petitioners, who are defendants in Title Suit No.24 of 2002, are aggrieved of order dated 13.03.2018 by which the trial court has declined to permit the defendants to examine one Md. Sagil Khan as one of their witnesses. 5. Title Suit No.24 of 2002 was instituted for a decree for declaration that the plaintiffs have valid title over schedule-B land, a part of the schedule ''A'' land and for a declaration that sale-deed dated 13.12.1993 executed by the proforma-defendant no.5 in favour of defendant nos.1 to 4 in respect of schedule-A land is ineffective and never acted upon and, thus, no title has passed on to them and for a declaration that order dated 23.05.2002 passed in Rent Assessment Case No.1 of 2001-2002 is illegal. 6. Mr. Sudarshan Shrivastava, the learned counsel for the petitioners submits that Md. Sagil Khan who is son of late Jahangir Khan, vendor of the defendant nos. 1 to 4, is a witness on the point of payment of consideration money by the defendant no.1 to Jahangir Khan for purchase of the suit land comprised under plot no.704 area about 4 acres and, therefore, he is a material witness for the defendants. Referring to order dated 13.03.2018 the learned counsel for the petitioners submits that on the ground that father of Md. Sagil Khan was debarred from filing written statement the defendants cannot be denied permission to examine Md. Sagil Khan as one of their witnesses. 7. Order XVI Rule 1 CPC provides that on or before the date fixed by the court and not later than 15 days after the date on which the issues are settled, the parties shall present in the court the list of witnesses whom they propose to call either to give evidence or to produce documents. 7. Order XVI Rule 1 CPC provides that on or before the date fixed by the court and not later than 15 days after the date on which the issues are settled, the parties shall present in the court the list of witnesses whom they propose to call either to give evidence or to produce documents. Sub-rule (3) to Rule 1 of Order XVI CPC, however, provides that the court may, for the reasons to be recorded, permit a party to call any witness other than those whose name appear in the list referred to in Sub-rule(1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. In their application dated 26.02.2018 the petitioners have not shown a good cause why Md. Sagil Khan was not made a witness previously; there is absolutely no reason disclosed by the petitioners in the application. A list of witnesses was submitted by the defendant nos. 1 to 4 on 12.02.2008. In this list the said Md. Sagil Khan is not a witness. By that time his father namely, Jahangir Khan who was proforma-defendant no.5 had already died on 26.09.2004. Now, in the aforesaid facts stand taken by the defendant nos.1 to 4 that Md. Sagil Khan is a witness on payment of consideration money by the defendant no.1 and, therefore, they may be permitted to examine him is not a ground for exercise of powers under Order XVI Rule 1(3) CPC to include the said Md. Sagil Khan as one of the witnesses. On the stand of the petitioners that Md. Sagil Khan is an important witness it needs to be indicated that this, in fact, is the stand of the plaintiffs who apparently do not wish to examine him as their witness and after all in the year 2008 also this plea was available to the defendants still the said Md. Sagil Khan was not made a witness by the defendants. Stand taken by the plaintiffs is that Jahangir Khan was not paid consideration amount and that is why before he cancelled sale-deed dated 13.12.1993 had gone to defendant no.1 and demanded the consideration amount in presence of his son Md. Sagil Khan. May be the trial Judge has declined permission to the defendants to examine Md. Stand taken by the plaintiffs is that Jahangir Khan was not paid consideration amount and that is why before he cancelled sale-deed dated 13.12.1993 had gone to defendant no.1 and demanded the consideration amount in presence of his son Md. Sagil Khan. May be the trial Judge has declined permission to the defendants to examine Md. Sagil Khan on the ground that his father was debarred from filing written statement, on merits, when it is found that the defendants have not shown sufficient cause for the omission to mention his name as one of their witnesses, I am not inclined to interfere with the impugned order dated 13.03.2018. 8. The writ petition stands dismissed.