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Madhya Pradesh High Court · body

2020 DIGILAW 459 (MP)

Munni Bai v. Kubra Bee

2020-03-20

VIVEK RUSIA

body2020
ORDER 1. The petitioners/defendants No. 1 to 3 have filed the present petition being aggrieved by order dated 6.3.2020 whereby the application filed under Order 17 Rule 1 of CPC has been dismissed. 2. Respondents/plaintiffs have filed the suit for declaration, permanent injunction and cancellation of ‘Hiba’ against the present petitioners in respect of land bearing Survey Nos. 56+64/2, 57, 58/2 and 60/1 of Village Sutarkhedi, Tehsil Mhow, District Indore (hereinafter referred to as “the suit property”). The suit property was initially owned by Ismail and the plaintiffs are claiming their right and title over the suit property by virtue of succession. The suit property has been mutated in the name of defendants by virtue of oral ‘Hibanama’, which gave the cause of action to the plaintiffs for filing the suit challenging the ‘Hibanama’. 3. The plaintiffs filed the suit on 15.2.2018. After receipt of the summons, the defendants appeared and filed the written statement on 11.7.2018. Thereafter, the trial Court framed the issues on 18.7.2018. The plaintiffs have concluded their evidence and at present, evidence of defendants is going on. Along with the written statement, the defendants have filed an affidavit of Ismail in original executed in respect of ‘Hibanama’ and also filed photocopy of another affidavit of Ismail bearing Notary No. 133/2007 dated 19.6.2007. The original affidavit was marked as Ex. D/6 and at the time of tendering photocopy of the affidavit in evidence, the defendants came up with the plea that by mistake, the said affidavit was filed and the same is not related with the subject matter of the suit. The plaintiffs, after filing of photocopy of the affidavit of Ismail along with the written statement by defendants, immediately filed the application under Order 7 rule 12 of CPC seeking production of the original of the said affidavit by the defendants. The defendants filed an affidavit on 26.2.2020 that the original document is not in their possession. Thereafter, the plaintiffs filed another application u/ss. 63 & 65 of the Indian Evidence Act seeking permission to prove the affidavit of Ismail as secondary evidence. Said application was opposed by the defendants on the ground that the property mentioned in the said affidavit are different and not related to the suit property. Thereafter, the plaintiffs filed another application u/ss. 63 & 65 of the Indian Evidence Act seeking permission to prove the affidavit of Ismail as secondary evidence. Said application was opposed by the defendants on the ground that the property mentioned in the said affidavit are different and not related to the suit property. Learned trial Court, vide order dated 28.2.2020, has allowed the application by placing the reliance over the judgment of apex Court in the case of J. Yashoda v. K. Shobharani [ (2007) 5 SCC 730 ]. 4. After passing the aforesaid order dated 28.2.2020, the petitioner filed an application under Order 7 Rule 14 of CPC seeking adjournment in order to challenge order dated 28.2.2020 before this Court. Learned trial Court fixed the case on 26.2.2020 and thereafter fixed the case on 5.3.2020. On the said date, plaintiffs filed an application seeking permission to produce Hindi translation of ‘Nikahnama’. They also filed an application under Order 7 Rule 14 of CPC. The defendants sought time to file reply to the said application. Vide order dated 5.3.2020, learned trial Court has allowed the application under Order 8 Rule 1 read with section 151 of CPC with cost of Rs. 200/-. By the said order, learned trial Court has closed the right of defence of the defendants due to non-appearance of the defendants’ witnesses – Hamidullah Qureshi and Akbar Ghosi, hence the present petition before this Court. 5. The petitioners/defendants challenged the order dated 28.2.2020 by way of M. P. No. 1505/2020. Today, said petition has been dismissed. 6. On 5.3.2020, the plaintiffs filed an application under Order 7 rule 10 of CPC seeking permission to file Hindi translation of ‘Nikahnama’. The defendants sought time to file reply to the said application. Therefore, there was no occasion to examine the witnesses, hence, the presence of defendants’ witnesses was immaterial. On the said date, the trial Court was required to decide the application under Order 7 Rule 14 of CPC, therefore, the trial Court has wrongly closed the right of defence of the defendants. Hence, the order dated 5.3.2020 is hereby set aside. 7. Shri Jitendra Verma, learned counsel appearing for the petitioners/defendants, submits that the trial Court is taking day to day trial in this case and not giving proper opportunity to the defendants to conclude their evidence. Hence, the order dated 5.3.2020 is hereby set aside. 7. Shri Jitendra Verma, learned counsel appearing for the petitioners/defendants, submits that the trial Court is taking day to day trial in this case and not giving proper opportunity to the defendants to conclude their evidence. The suit is not very old and the defendants are duly cooperating for early disposal. 8. The plaintiffs filed the suit on 15.2.2018 and immediately thereafter the defendants have filed the written statement. Thereafter, the trial Court has framed the issues. The plaintiffs have concluded their evidence and now the case is fixed for defendants’ evidence. No party is trying the delay the suit proceedings. The plaintiffs are challenging the ‘Hibanama’ dated 19.6.2007. There are two affidavits of Ismail. The parties have to examine the documents for their valuable rights. The suit is not under the category of “5 years old”, therefore, the trial Court should not impose heavy cost while granting time to respond to the application filed by each other. On 5.3.2020, an application was filed by the plaintiffs to produce ‘Nikahnama’ and the defendants sought time to examine the same whether the Hindi translation is proper or not. On the said date, the trial Court has closed the right of defence of the defendants. In the opinion of this Court, the trial Court should not proceed so fast so that the parties may get proper opportunity to contest their case. 9. With the aforesaid, this petition stands disposed of.