Aaseen and Another vs Ram Vilas Mittal

R.S. Chauhan, J.—The petitioners-defendants are aggrieved by the order dated 10.3.2014 passed by the Additional Chief Judicial Magistrate No. 1, Bari, District Dholpur whereby the learned Magistrate has allowed the application filed by the respondent-plaintiff under Order 13, Rule 10 CPC and has summoned the court file from another court.

The brief facts of the case are that the respondent-plaintiff filed a suit for eviction and for recovery of rent against the petitioners before the learned Magistrate. The petitioners, while filing their written statement, had claimed that the suit is not maintainable as two other brothers of the plaintiff, namely Subhash Chandra and Kedar Nath, have not been impleaded as a party as the property in dispute is co-jointly owned by the petitioner and his brothers. In rejoinder filed by the respondent-plaintiff, he clearly claimed that there was a partition suit which has been filed. The said partition suit was decreed by judgment and decree dated 23.9.1999 on the basis of a compromise which was entered between the brothers. While examining himself as a witness, the plaintiff wanted to mark a certified copy of the compromise dated 23.9.1999, entered between him and his brothers, as an exhibit. However, the learned counsel for the petitioner objected that since the document has not been mentioned in the list of documents, and since the original document was filed in the partition suit which had to be summoned before the certified copy could be marked as an exhibit, no exhibit could be marked on the said document by the court. Due to this objection raised by the learned counsel for the petitioner, the respondent-plaintiff filed an application under Order 13, Rule 10 CPC wherein he prayed that the original record of the aforesaid suit be summoned from the District Judge, Jaipur. After hearing both the parties, by impugned order dated 10.3.2014, the learned Magistrate has allowed the application. Hence, this petition before this court.

Mr. B.K. Sharma, the learned counsel for the petitioner, has raised the following contentions before this court: firstly, no reason has been given by the respondent-plaintiff in his application praying that the record of the partition suit should be called for. In absence of any reason given in the application, the learned Magistrate was not justified in allowing the application. In order to buttress this contention, the learned counsel has relied on the case of LRs. of Nasar Khan Vs. Merajudin, and on the case of Papanna and Others Vs. H. Dodde Gowda and Others, . Thus, according to the learned counsel, the impugned order deserves to be set aside.

Heard the learned counsel for the petitioner and perused the impugned order and considered the case laws cited at the Bar.

A bare perusal of the application (Annex. 5) filed by the respondent-plaintiff clearly reveals that he has mentioned the reasons for calling the record of the case. According to the respondent-plaintiff, when he was deposing before the court as a witness, he had submitted a certified copy of the compromise. At that moment the learned counsel for the petitioner has raised an objection and had claimed that it could not be marked as an exhibit until and unless the record of the case is called for and original copy of the compromise is available before the court. It is for this reason that the respondent-plaintiff had prayed in his application that the record be summoned. Thus, obviously, the contention raised by the learned counsel that no reason has been given in the application for summoning the record is clearly untenable.

In the case of LRs. of Nasar Khan (supra), this court, too, has held that a reason should have been indicated in the application for calling of the record. According to this court, the trial court would have been justified in dismissing the application in case no cogent reason was given. However, in the present case, a cogent reason has been given by the respondent-plaintiff in his application for calling of the record. The principle laid down by the Hon''ble Karnataka High Court in the case of Papanna & Ors. (supra) cannot be doubted that the court must consider the reasons given and be satisfied that there is a need to call for the record.

However, in the present case, the petitioner cannot be permitted to blow hot and cold simultaneously. On the one hand, he has raised objection to marking of the document as an exhibit on the ground that the record of the case is unavailable, and original copy of the compromise has not been submitted; yet, on the other hand, he claimed that an illegality has been committed by the learned Magistrate while calling for the record of the case. Naturally, once an objection has been raised by the learned counsel for the petitioner and an application has been filed by the respondent-plaintiff, the learned Magistrate was justified in calling for the record and to proceed further.

For the reasons stated above, this court does not find any illegality, or perversity in the impugned order. This petition being devoid of any merit, is hereby dismissed. The stay application also stands dismissed.