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2019 DIGILAW 472 (MP)

SHIVCHARAN v. RAMPRASAD

2019-07-02

G.S.AHLUWALIA

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ORDER/JUDGMENT – Shri Abhishek Bindal, Counsel for the petitioner. Shri Anil Kumar Shrivastava, Counsel for the respondents No. 1 and 2. This petition under Article 227 of the Constitution of India has been filed against the order dated 11-3-2019 passed by Third Additional Civil Judge Class II, Shivpuri in Civil Suit No. 85-A/2017 by which the application filed by the petitioner under Order 8, Rule 1-A(3) of Civil Procedure Code for filing additional documents has been rejected on the ground that the said documents have been filed after the evidence of the plaintiff is over and the documents were in the knowledge of the petitioner and they were not filed at the earlier stage without any reasonable reason. 2. Challenging the order passed by the trial Court, it is submitted by the counsel for the petitioner that the respondents No. 1 and 2 have filed a suit for declaration of title and permanent injunction. On 12-9-2018, an application under Order 7, Rule 14(3) of Civil Procedure Code was filed by the respondents No. 1 and 2 seeking permission to file additional documents. The said application was filed on 12-9-2018 which was allowed by order dated 29-10-2018 on payment of cost of Rs. 100/- and a liberty was also granted to the respondents to file the documents in rebuttal of the documents filed by the respondents No. 1 and 2. It is further submitted that accordingly the petitioner had filed an application under Order 8, Rule 1-A(3) of Civil Procedure Code which has been allowed on the grounds mentioned above. 3. It is submitted that so far as the knowledge of the orders on which the petitioner wants to place reliance is concerned, the same would not apply to the facts and circumstances of the case. In a revenue proceedings, two interim orders dated 10-10-2016 and 22-12-2016 were passed in favour of the respondents No. 1 and 2. 3. It is submitted that so far as the knowledge of the orders on which the petitioner wants to place reliance is concerned, the same would not apply to the facts and circumstances of the case. In a revenue proceedings, two interim orders dated 10-10-2016 and 22-12-2016 were passed in favour of the respondents No. 1 and 2. Although these documents were in the knowledge of the respondents No. 1 and 2 but in spite of that, they did not file the same till 12-9-2018 and since the documents filed along with an application under Order 7, Rule 14(3) of Civil Procedure Code were not on record, therefore, the petitioner in his wisdom did not choose to file the documents which were passed in subsequent proceedings and, therefore, it cannot be said that the petitioner deliberately did not file those documents in spite of having full knowledge of those documents. It is further submitted that by order dated 30-8-2016, an order of partition was passed in favour of respondents No. 1 and 2 and in that partition proceedings, the interim orders dated 10-10-2016 and 22-12-2016 were passed which were filed along with the application filed under Order 7, Rule 14(3) of Civil Procedure Code. 4. Being aggrieved by the order dated 30-8-2016, the petitioner had filed an appeal which was allowed by SDO, Shivpuri by order dated 29-12-2016 in Case No. 10/2016-17/Appeal. The order of the SDO, Shivpuri was challenged by the respondents No. 1 and 2 and their revision has been dismissed by the Additional Commissioner, Gwalior Division, Gwalior by order dated 22-8-2017 passed in Case No. 156/2016-17/Appeal. 5. It is submitted by the counsel for the petitioner that in fact the respondents No. 1 and 2 had relied upon certain documents which had already lost their legal sanctity. As the final order passed in their favour has already been set aside by the SDO, Shivpuri and thus the documents filed by the petitioner along with an application under Order 8, Rule 1(3) of Civil Procedure Code cannot be said to be irrelevant. Since the respondents No. 1 and 2 themselves had created such situation by filing the non-existing interim orders along with an application filed under Order 7, Rule 14(3) of Civil Procedure Code, therefore, the petitioner cannot be made to suffer. Since the respondents No. 1 and 2 themselves had created such situation by filing the non-existing interim orders along with an application filed under Order 7, Rule 14(3) of Civil Procedure Code, therefore, the petitioner cannot be made to suffer. Furthermore, it is submitted by the counsel for the petitioner that in fact the respondents No. 1 and 2 had suppressed the material fact because the order of partition dated 30-8-2016 which was passed in favour of respondents No. 1 and 2 was already set aside by the SDO, Shivpuri by order dated 29-12-2016 but still the respondents No. 1 and 2 filed those documents in respect of which the proceedings had already come to an end. Thus in order to explain the suppression of material facts by the respondents No. 1 and 2, it is necessary for the petitioner to place the subsequent documents on record. 6. Per contra, it is submitted by the counsel for the respondents No. 1 and 2 that it is true that the orders dated 10-10-2016 and 22-12-2016 were passed in the partition proceedings and the partition proceedings were decided in their favour by final order dated 30-8-2016 and the order of partition has already been set aside by the SDO, Shivpuri by order dated 29-12-2016 and the appeal filed by the respondents No. 1 and 2 has also been dismissed, however, it is submitted by the counsel for the respondents No. 1 and 2 that since the order of Additional Commissioner, Gwalior Division, Gwalior is under challenge before the Board of Revenue, therefore, the orders on which the petitioner has relied upon had no relevance. 7. Heard the learned counsel for the parties. 8. If the contention of the petitioner that the orders on which petitioner wants to place reliance have no relevance, then it is clear that the respondents No. 1 and 2 have also filed the orders dated 10-10-2016 and 22-12-2016 which had already lost their relevance. In fact, the respondents No. 1 and 2 had filed irrelevant orders along with the application under Order 7, Rule 14(3) of Civil Procedure Code by suppressing the subsequent order of SDO by which the order of partition was already set aside. Under these circumstances, the contention of the counsel for the respondents No. 1 and 2 that the petitioner has filed the irrelevant documents cannot be accepted. 9. Under these circumstances, the contention of the counsel for the respondents No. 1 and 2 that the petitioner has filed the irrelevant documents cannot be accepted. 9. So far as the delay in filing the application by the petitioner is concerned, undisputedly the respondents No. 1 and 2 were also aware of the order dated 30-8-2016 as well as order dated 29-12-2016 which was passed by the SDO, Shivpuri. Although the order of partition was already set aside by the SDO, Shivpuri and the appeal filed by the respondents No. 1 and 2 was pending but still the respondents No. 1 and 2 suppressed the fact of dismissal of their partition proceedings by order dated 29-12-2016 passed by the SDO, Shivpuri and deliberately filed copies of interim orders in order to mislead the Court. Thus, under these circumstances this Court is of the considered opinion that unless and until the true and correct facts are brought on record, the Trial Court would not be in a position to adjudicate the matter effectively. Under these circumstances, this Court is of the considered opinion that neither the application under Order 8, Rule 1-A(3) of Civil Procedure Code was filed belatedly nor the documents which have been filed along with the said application are irrelevant. 10. Accordingly, the order dated 11-3-2019 passed by Third Additional Civil Judge Class II, Shivpuri in Civil Suit No. 85-A/2017 is hereby set aside. The application filed by the petitioner under Order 8, Rule 1-A(3) of Civil Procedure Code is hereby allowed. 11. At this stage, it is submitted by the counsel for the respondents No. 1 and 2 that since the application under Order 8, Rule 1-A(3) of Civil Procedure Code was filed subsequent to closure of their right to lead their evidence therefore now they would not be in a position to give an evidence in rebuttal of the documents which have been filed by the petitioner. 12. Accordingly, it is directed that in case if the respondents No. 1 and 2 file an application for their re-examination, then that application shall be considered in accordance with law. 13. Accordingly, the petition is allowed with cost of Rs. 5000/- to be payable by plaintiffs to the petitioner, by the next date of hearing/listing before the trial Court.