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2022 DIGILAW 977 (RAJ)

Vinod Kumar v. Kishan Chand

2022-03-24

VINIT KUMAR MATHUR

body2022
ORDER 1. The case comes up on an application filed under Article 226 (3) of the Constitution of India for vacating the ex-parte interim order passed by this Court on 03.11.2016, however, with the consent of learned counsel for the parties, the writ petition is being heard and decided finally. 2. The present writ petition has been filed by the petitioner against the order dated 14.09.2016 (Annexure-7) passed by Additional District Judge, Anoopgarh, whereby, the application preferred by the petitioner under Order 8 Rule 1 (3) read with Section 151 C.P.C. for taking certain documents on record was rejected. 3. Heard learned counsel for the parties. 4. Learned counsel for the petitioner submits that the petitioner wanted to bring on record the Power of Attorney dated 14.07.1981 and a Sale Register before the learned trial court, which were received by him after filing of the written statement. He further submits that in the application preferred before the learned trial court, by a bona-fide typographical error, word ugha could not be typed in the second paragraph and it was stated in the application as under: 2& ;g fd izekf.kr izfr eq[kR;kjsvke fnukad 14&7&1981 ,oa izekf.kr izfr lSy jftLVj iwoZ esa izkIr gqbZ FkhA 5. He contended that in this sentence, instead of izkIr ugha gqbZ Fkh , by a typographical error, izkIr gqbZ Fkh was inscribed. He further submits that in the next sentence, it was stated that the documents were received by him from the Sub Registrar, Kangra and Tehsildar Anoopgarh subsequently. However, the learned trial court while taking into consideration the contents of the application, decided the same and held that the documents were already in possession of the petitioner and the same were not produced by him at the relevant time along with the written statement and the counter claim, therefore, the application preferred by the petitioner was rejected. Learned counsel submits that the order dated 14.09.2016 is erroneous and the learned trial court should have appreciated the fact that not mentioning the word ugha in the first sentence of the second paragraph of the application cannot be a ground for rejection of his application and the entire contents of the application should have been considered while deciding the same and also, the typographical error should not have been made the basis for deciding the application. He, therefore, prays that order dated 14.09.2016 may be quashed and set aside. 6. Per contra, learned counsel for the respondents submits that the reply filed by the respondents clearly shows that the documents which were sought to be brought on record could not be brought on record on account of the fact that plaintiff's evidence in the case had already been completed. He submits that the counter claim by a defendant is not maintainable against the co-defendant. Learned counsel further submits that the order passed by the learned trial court on 14.09.2016 does not disclose the discussions with respect to the points raised by the respondents in the reply and merely on the ground of the application preferred by the petitioner and contents of the said application, it has been decided. He, therefore, prays that even on merit, the rejection of the application by the learned trial court is just and proper. 7. I have considered the submissions made at the Bar and have gone through the application preferred by the petitioner (Annexure-4). The paragraph 2 of the application reads as under : 2& ;g fd izekf.kr izfr eq[kR;kjsvke fnukad 14&7&1981 ,oa izekf.kr izfr lSy jftLVj iwoZ esa izkIr gqbZ FkhA vc izkFkhZ us mi iath;d dkaxM+k o rglhynkj vuwix<+ ls mijksDr nLrkost dh izekf.kr izfr izkIr dh gS tks fd mDr nkok ds vge nLrkost gSA ftUgs izkFkhZ dh lk{; esa is'k dj iznfZr djok;k tkuk vfr vko';d gSA 8. A plain reading of the application shows that if the meaning of the first sentence is construed in the correct sense and read with the second sentence, the word izkIr gqbZ Fkh should actually have been izkIr ugha gqbZ Fkh . The logical outcome of this application clearly shows that the documents which were sought to be brought on record were not within the possession of the petitioner and, therefore, the same could not be produced. However, the typographical error of not inscribing the word ugha could not be taken to be a fact that despite those documents were within the possession of the petitioner, the same were not produced before the trial court. However, the typographical error of not inscribing the word ugha could not be taken to be a fact that despite those documents were within the possession of the petitioner, the same were not produced before the trial court. Since this court is satisfied that by a typographical error, the word ugha has not been inscribed in the application, the rejection of the application by the learned trial court vide its order dated 14.09.2016 is improper and incorrect and the same deserves to be quashed and set aside. 9. Accordingly, the writ petition is allowed and the order dated 14.09.2016 passed by learned Additional District Judge, Anoopgarh, District Srigangangar is quashed and set aside. The case is remanded back to the learned trial court for deciding afresh the application preferred by the petitioner under Order 8 Rule 1 (3) read with Section 151 of C.P.C. 10. Needless to say, the contentions raised by the respondents shall also be taken into consideration by the learned trial court while deciding the application preferred by the petitioner. 11. Since the matter is pending consideration since the year 2008, the learned trial court is expected to decide the application as well as the suit itself at the earliest convenience.