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2019 DIGILAW 1470 (JHR)

Jasim Ansari v. Habib Ansari

2019-08-26

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : 1. This writ petition is under Article 227 of the Constitution of India whereby and whereunder the order dated 26.03.2019 passed in Title Suit No. 93 of 1996 has been assailed by which the petition filed by the defendant Nos. 1 to 3, the petitioners herein, has been rejected by which the prayer has been made to recall PW-7 namely, Vijay Krishna Vidhyarthi for further cross-examination. 2. The brief facts of the case of the petitioners as would appear from the material available on record is that a suit has been filed being Title Suit No. 93 of 1996 for declaration of the sale-deed No. 1065 dated 24.08.1936 executed by Rahmat Ali as illegal, inoperative and void document, obtained by fraud and also for permanent injunction. 3. The plaintiffs have filed a petition on 22.02.2011 for comparison of thumb impression appearing in the impugned sale deed dated 24.08.1936 with that of appearing in the sale deed dated 20.02.1970 executed by late Rahmat Ali but was dismissed vide order dated 24.03.2011 against which the plaintiffs have preferred a writ petition being W.P. (C) No. 2014 of 2011 which was allowed vide order dated 21.12.2011 directing the trial Court to get the thumb impression compared by expert, accordingly, PW-7 examined the thumb impression appearing in the aforesaid sale deed and submitted his report, the said report has been marked as Exhibit-5. 4. The petitioners have also filed a petition for getting the photographs of the LTI of Rahmat Ali appearing in the sale deed No. 1065 dated 24.08.1936 and the thumb impression appearing in the registered sale deed of the year 1970 for the purpose of examination of the same by an expert but vide order dated 05.10.2012 which was rejected by the trial Court, against which a writ petition was filed being W.P. (C) No. 6583 of 2012 which was disposed of vide order dated 20.03.2013 with an observation that one last opportunity to the petitioners is required to be given to adduce evidence in rebuttal. 5. 5. The petitioners have filed a petition on 13.11.2013 for comparison of the thumb impression appearing in the sale deed dated 24.08.1936 to that of appearing in the sale deed dated 14.05.1979 but was dismissed vide order dated 28.11.2013 against which a writ petition has been filed before this Court being W.P. (C) No. 7674 of 2013 which was disposed of vide order dated 25.02.2014 and accordingly, the petitioners have preferred two applications, one dated 03.04.2014 and another dated 22.05.2014 and vide order dated 25.03.2015, the trial court has allowed the petition filed on 03.04.2014 and held the second petition dated 22.05.2014 as infructuous, feeling aggrieved with the same, the plaintiffs have filed a writ petition being W.P. (C) No. 1347 of 2015 which was disposed of vide order dated 07.12.2016. 6. Subsequently, the trial Court has passed an order on 01.05.2017 by dismissing the prayer for issuance of summons of Sita Ram Prasad Sharma, an expert, as not maintainable and granted liberty to the petitioners to produce the said witness as expert at their own cost and vide order dated 19.05.2018, the plaintiffs were allowed to examine Sita Ram Prasad Sharma as expert witness at their own cost, the same was challenged before this Court vide W.P. (C) No. 2751 of 2018 which was disposed of on 17.12.2018 by not interfering with the order passed by the trial court on 19.05.2018 and directed the trial court to post the matter for examination of the said witness namely, Sita Ram Prasad Sharma within four weeks and to decide the suit within a period of three months without granting any adjournment to any of the parties but for just excuse. Thereafter, in pursuance to the order dated 19.05.2018, Sita Ram Prasad Sharma, examination has been conducted but was not cross-examined on that day on behalf of defendants Nos. 1 to 3, the petitioners herein, rather a time petition has been filed which was allowed on a cost of Rs. 1,000/- subsequent thereto, he was cross-examined on 25.06.2012 and again a time petition was filed which again was allowed on cost of Rs. 1 to 3, the petitioners herein, rather a time petition has been filed which was allowed on a cost of Rs. 1,000/- subsequent thereto, he was cross-examined on 25.06.2012 and again a time petition was filed which again was allowed on cost of Rs. 1,000/- and lastly he was cross-examined on 17.07.2012 and was discharged and at that juncture, petition has been filed on 26.02.2019 and as would appear from the petition as annexed as Annexure-3 seeking a relief from the trial court to recall the PW-7 since due to oversight some of the relevant questions in regard to examination of disputed and admitted thumb impressions could not be put to him, the same having been rejected vide order dated 26.03.2019 (impugned), the present writ petition has been filed. 7. Mr. A.K. Sahani, learned counsel for the petitioners has fairly submitted that although no reason has been expressed in the petition filed by the petitioners on 26.02.2019 but the fact remains that certain questions are required to be put to PW-7 and for that the aforesaid petition was filed and if it would not be allowed, the petitioners’ case will be prejudiced. 8. This court after going across the pleadings made in the writ petition as also the findings recorded therein, has gather therefrom that under Order XVIII Rule 17 of the Code of Civil Procedure, the provision of recall of the witnesses has been provided subject to the discretion of the Court, however, the same can also be exercised by the party by making an application in this regard. 9. 9. As would appear from the discussion made hereinabove that series of petitions have been filed before the trial court which have also been made the subject matter of various litigations before this Court under Article 227 of the Constitution of India and the last one is against the order dated 19.05.2018 preferred before this Court in W.P. (C) No. 2751 of 2018 and prior to that the petitioners have also filed writ petition before this Court against the order dated 05.10.2012 for getting the LTI of Rahmat Ali appearing in the sale deed No. 1065 dated 24.08.1936 which was rejected against which writ petition was filed and at that time, this Court while disposing of the writ petition being W.P. (C) No. 6583 of 2012 has allowed a chance as last opportunity to the petitioners to adduce evidence in rebuttal. Again a petition has been filed by the petitioners on 13.11.2013 for comparison of the thumb impression appearing in the sale deed on 24.08.1936 with that of appearing in the sale deed dated 14.05.1979 but was dismissed against which again writ petition has been filed being W.P. (C) No. 7674 of 2013. 10. This Court while disposing of the writ petition being W.P. (C) No. 2751 of 2018 has declined to interfere with the order dated 19.05.2018 with a direction to post the matter for examination of PW-7 namely, Sita Ram Prasad Sharma within four weeks and to conclude the trial within a period of three months without granting any adjournment but for just excuse, in pursuance thereto, affidavit of PW-7 has been filed but was not cross-examined but time petition was filed which was allowed on a cost of Rs. 1000/- again on 25.06.2012 a time petition was filed which again was allowed on cost of Rs. 1,000/- and lastly he was cross-examined on 17.07.2012 and was discharged. 11. The petitioners now seeks to recall the PW-7 in the guise of an order passed by this Court in W.P. (C) No. 2751 of 2018 whereby and whereunder the trial court has permitted the defendants to examine finger print expert, Sita Ram Prasad Shama as witness to prove the report. 11. The petitioners now seeks to recall the PW-7 in the guise of an order passed by this Court in W.P. (C) No. 2751 of 2018 whereby and whereunder the trial court has permitted the defendants to examine finger print expert, Sita Ram Prasad Shama as witness to prove the report. The same has been allowed to be proved within four weeks and after his examination, petition has been filed on 26.02.2019 stating therein that due to inadvertence and oversight, some of the relevant questions in regard to examination of disputed and admitted thumb impression could not be put, question herein is that the examination of handwriting expert has been directed to be concluded within a period of four weeks with a further direction to conclude the trial within a period of three months without granting any unnecessary adjournment, whether rejection of the petition dated 26.02.2019 can be said to be improper that too without assigning any reason for recall as would appear from petition dated 26.02.2019. 12. It is not in dispute while adjudicating an issue the substantial justice is the parameter but on the garb of substantial justice, the delay cannot be allowed to be done. 13. The handwriting expert has been examined by the petitioners as would appear from the impugned order and on the behest of the petitioners, PW-7 has been recalled vide order dated 19.05.2018 and was cross-examined and again on the excuse that certain questions have not been put due inadvertence and oversight is nothing but a protracting practice by the petitioners to linger the suit. 14. However, the Order XVIII Rule 17 of C.P.C. provides power for recall of the witness but it can only be exercised on the basis of valid and cogent reasons which is to be reflected from the petition but as would appear from petition dated 26.02.2019, no such reason has been assigned, save and except, that due to oversight and inadvertence some important questions have been left to be cross-examined. 15. The trial court after taking into consideration these aspects of the matter has declined to entertain the petition dated 26.02.2019 and while doing so, basing upon the reason recorded therein and as discussed hereinabove it cannot be said that any infirmity has been committed warranting any interference under Article 227 of the Constitution of India. 16. 15. The trial court after taking into consideration these aspects of the matter has declined to entertain the petition dated 26.02.2019 and while doing so, basing upon the reason recorded therein and as discussed hereinabove it cannot be said that any infirmity has been committed warranting any interference under Article 227 of the Constitution of India. 16. In view thereof, there is no merit in the writ petition, accordingly, the writ petition fails and is dismissed.