Shailesh Shastri v. Avdhesh (Since Deceased) Now LRs Smt. Rama @ Pavitra Shastri
2023-01-18
SUBODH ABHYANKAR
body2023
DigiLaw.ai
ORDER 1. Heard on IA No.484 of 2023 which is an application for amendment in the memo of petition. Keeping in view the reasons mentioned in the application, the same is allowed. 2. Necessary amendment be carried out in the memo of petition during the course of the day. Accordingly, IA No.484/2023 stands disposed of. 3. This miscellaneous petition under Article 227 of the Constitution of India has been filed against the orders dated 23.7.2021, and 3.8.2021, passed in Civil Suit No.99-A/2018 and Civil Suit No.100-A/2018 as both the suits have been consolidated in the trial Court by First Civil Judge, Senior Division, Badnagar, District - Ujjain (MP). 4. By order dated 23.7.2021, the learned Judge of the trial Court has recalled its earlier order dated 7.12.2019 whereby, at the instance of the plaintiffs, it was directed to produce the service record of one Prabhakar Shastri, and vide order dated 3.8.2021, the plaintiffs right to lead further evidence has been closed on the ground that the suit is pending since last more than 20 years and the plaintiffs have still not completed their evidence. 5. In brief, the facts of the case are that the present civil suit was filed by the original plaintiffs as regards partition, declaration and permanent injunction, and when the suit was fixed for plaintiffs evidence in the year 2019, an application was filed on their behalf seeking production of certain documents under Order 16 rule 1 of Code of Civil Procedure, 1908 for 6 calling the record of plaintiff's ancestor namely; Shri Prabhakar Shastri who was a Class-3 employee according to the plaintiff as the said Shri Shastri could not have purchased the property from his own funds. The aforesaid application was allowed by the learned Judge of the trial Court on 7.12.2019, and the matter was fixed before the trial Court for production of the aforesaid record. Thereafter, the matter was fixed before the trial Court on many occasions for production of the aforesaid document but till date they have not been produced despite process-fee has been paid by the plaintiffs. 6.
Thereafter, the matter was fixed before the trial Court on many occasions for production of the aforesaid document but till date they have not been produced despite process-fee has been paid by the plaintiffs. 6. The learned judge of the trial Court, taking note of the directions issued by this Court regarding expeditious disposal of old civil suits, vide its order dated 23.7.2021, has decided to recall its earlier order dated 7.12.2019 for calling of record of Shri Shashtri, and directed the plaintiffs to submit certified copies of the record as the record which is being called is also a public document. Subsequently, vide order dated 3.8.2021 right of the plaintiff to led evidence has also been closed taking into consideration the fact that the case is pending since last 20 years. 7. Counsel for the petitioners has assailed both the aforesaid orders on the ground that the impugned order dated 23.7.2021 is virtually the orders of review of Civil Court's earlier order which is not permissible under the law. It is submitted that only on the ground that the High Court has directed the Civil Court to expedite the matter, such an illegal order of recalling earlier order cannot be passed by the civil court especially when it was not even challenged by the defendants. It is also submitted that similarly, order dated 3.8.2021 closing the right of the plaintiff to lead evidence is also bad in law as the matter was pending before the Civil Court for production of certain document and in the midway, without any error on the part of the plaintiff, even when the documents have not been produced before the Civil Court, the right of plaintiffs to lead further evidence has been closed. Thus, it is submitted that both the orders are liable to be set-aside. 8. Counsel for the respondents, on the other hand, has vehemently opposed the application and submits that no illegality has been committed by the Courts below for the reason that the defendants seek to examine only two witnesses namely Manorama @ Seema Rani and Bhagwati Prasad.
Thus, it is submitted that both the orders are liable to be set-aside. 8. Counsel for the respondents, on the other hand, has vehemently opposed the application and submits that no illegality has been committed by the Courts below for the reason that the defendants seek to examine only two witnesses namely Manorama @ Seema Rani and Bhagwati Prasad. The age of Seema Rani is mentioned as 58 years in the present petition, whereas her present age is 88 years and the age of Bhagwati Prasad is mentioned as 63 years in the petition, whereas his current age is 90 years, due to pendency of petition, thus it is submitted that the intention of petitioners is only to further prolong the matter so that both these material witnesses could not be examined in the trial Court as they are nearing the fag end of their lives due to their old age. Counsel has also submitted that the respondents are also ready to admit the documents, if the certified copies of the same are filed on record, and the trial Court may be directed to expedite the matter. 9. Heard counsel for the parties and perused the record. 10. From the record it is apparent that the learned Judge of the trial Court has recalled its own order dated 7.12.2019, whereby the application filed by the plaintiffs to call for certain documents of their ancestor was allowed. The reason for such recall is stated to be to expedite the trial as it is pending since long and as per the directions issued by the High Court, these matters have to be disposed of at an early date. In the considered opinion of this Court only for disposal of a case, which is pending since long, no such order can be passed by the Civil Court by adopting a shortcut method, even if there are directions issued by the High Court to expedite the trial. In case of any difficulty, the learned Judge of the trial Court was expected to take guidance from the High Court, but to resort to such measure, i.e., to recall its own order and snap the further right of the plaintiffs to lead evidence only for the disposal's sake, is a procedure alien to the CPC and by no stretch of imagination, can be said to be legal, just or proper. 11.
11. In such circumstances, impugned orders dated 23.7.2021, and 03.08.2021 are hereby set aside. However, taking note of the admission on the part of the learned counsel for the respondents that he would admit the documents, which the plaintiffs seeks to place on record, if the certified copies of the same are filed in the Civil Court and the counsel for the petitioners/plaintiffs has also submitted that he would file certified copies of the documents, if the same are provided to him by the concerned Department, this Court is inclined to dispose of this petition with a direction to the plaintiffs to produce the certified copies of the documents, if available, within a period of three weeks from the week commencing 30.1.2023 and notwithstanding the production of such documents, the plaintiffs shall also be allowed to lead their evidence within further one month's time. Thereafter, the defendants may lead their evidence and the learned Judge of the trial Court is requested to proceed further with the case expeditiously, in accordance with law. 12. It is made clear that this Court has not reflected upon the merits of the case. 13. With the aforesaid, the petition stands allowed and disposed of.