Abdul Gaffar Khan Khokhar vs Mohammed Raza @ Munna Miyan

This Petition has been filed under Article 227 of the Constitution of India being aggrieved by the order dated 15.12.2022 passed by the Additional District Judge, Pendra Road in Civil Suit No.7-A/2016 whereby, the application filed by the Petitioner/Plaintiff for recalling the Notary Advocate BL Yadav (PW-13) to prove the notary register, was disallowed.

Brief facts of the case are that the Petitioner/Plaintiff has filed a suit for specific performance of the agreement of sale against the Respondent before the Court below in which, the Notary Advocate Shri BL Yadav was examined as PW-3 on 08.12.2022. On the same day, as the said notary Advocate could not bring the relevant register in which the entry of agreement of sale was attested as the same was not traceable, therefore, the entry could not be proved and copy thereof was filed during his evidence. Later on, the witness informed the Counsel for the Petitioner that his register has been traced, therefore, the Petitioner/Plaintiff has filed an application on 13.12.2022 to recall the witness to prove the entry of attestation of agreement of sale, which was dismissed by the order impugned. Hence this Petition.

Shri Ansari, learned Senior Advocate for the Petitioner submits that the order impugned is not sustainable and to meet the ends of justice, the said witness is required to be recalled and therefore, prays to allow the Petition by providing him an opportunity to prove the relevant register by recalling the said witness i.e. Notary Advocate BL Yadav (PW-3).

Heard learned Senior Advocate for the Petitioner and also perused the documents annexed with the Petition carefully.

It is well settled that the judiciary is respected not on account of its power to legalize on technical grounds but on its capacity of removing injustice and it is expected to do so. It is also well settled that the Courts are meant to do substantial justice between the parties and the procedure of removing technical latches should not be given precedence. Justice according to law does not mean technical justice but the law has to be administered to advance justice. Here in the instant case, Notary Advocate BLYadav (PW-3) was called by the Petitioner/Plaintiff to prove the relevant register but on the said date, he was not present with the required document when his examination was being done and immediately after 4 days, when an application was moved by him as the relevant register was available with the Notary Advocate, the same was dismissed by way of the impugned order.

Having considered the submissions made and having gone through the relevant documents, this Court finds that the course adopted by the Court below is not proper. Accordingly, the order impugned is hereby quashed subject to cost of Rs.1,000/- payable to the legal heirs of Defendant No.1 to be deposited within 15 days of the receipt of copy of this order by the Petitioner/Plaintiff failing which, this order shall lose its efficacy. It is directed that upon depositing the said cost, the Court below shall provide at least one opportunity to the Petitioner /Plaintiff to prove the relevant register in accordance with law.

With the aforesaid observation, the instant Petition stands disposed of.