Bala Pati vs Civil Judge Mohanlalganj

Ritu Raj Awasthi, J.—Mr. P.S. Mehra, Advocate has put in appearance on behalf of opposite party no.2, whereas Mr. K.C. Nigam, Advocate has put in appearance on behalf of opposite parties no.3 and 4 and filed vakalatnama, same is taken on record.

Heard learned counsel for parties and perused the records.

The instant writ petition has been filed challenging the order dated 31.3.2017, passed by opposite party no.1 in Regular Suit No.382 of 2010; Bela Pati v. Ramzan Ali and others on the application filed by petitioner to examine the witnesses of opposite parties under Order 16, Rule 14 CPC.

Learned counsel for the petitioner submits that the petitioner has preferred a suit for cancellation of sale deed dated 14.10.2010 executed by opposite party no.4 in favour of opposite party no.2. The petitioner has submitted a list of witnesses which included name of opposite party no.4. Under Order 16, Rule 1 and 2 CPC the opposite parties had also produced a list of witnesses which included the name of opposite party no4. The Court considering this aspect of the matter had disposed of the application preferred by petitioner with respect to examination of opposite party no.4 as witness considering the fact that name of opposite party no.4 itself finds place in the list of witnesses given by opposite parties.

Learned counsel for the petitioner submits that without getting the opposite party no.4 examined, the Court has closed the evidence of opposite parties and has decided to proceed further. The petitioner therefore has moved an application under Order 16, Rule 14 CPC to examine opposite party no.4 as court witness. Learned court below considering the order passed by High Court dated 27.4.2011 that is to decide the suit itself in a time bound manner within two years has proceeded to observe that the petitioner is delaying the proceedings and, as such, has rejected the application. Learned counsel for the petitioner submits that in the given facts and circumstances, it is necessary to examine opposite party no.4 and record his statement for the purpose of coming to right conclusion.

Mr. P.S. Mehra, learned counsel for opposite party no.2 submits that it is not necessary to examine opposite party no.4 as he has executed the alleged sale deed through his attorney who is opposite party no.3 in the present writ petition.

Mr. K.C. Nigam, learned counsel appearing on behalf of opposite parties no.3 and 4, on the other hand, submits that opposite party no.3 and opposite party no.2 have been examined and, as such, opposite party no.4 is not required to be examined by the court below. The application preferred under Order 16, Rule 14 CPC was moved in order to delay the proceedings and frustrate the High Court''s order dated 27.4.2011.

I have considered the submissions made by parties'' counsel and gone through the records.

I am of the considered opinion that since opposite party no.4 is very much available and it is opposite party no.4 who had executed the alleged sale deed in favour of opposite party no.2 and the entire bone of contention between the parties is with respect to alleged sale deed which was allegedly executed by opposite party no.4 in favour of opposite party no.2, as such, in the given facts and circumstances the learned Court below should have examined the opposite party no.4. Moreover, it is also to be noted that in the list of witnesses given by petitioner-plaintiff as well as opposite parties the name of opposite party no.4 was mentioned, as such, he ought to have been examined by learned court below.

In this view of the matter the impugned order dated 31.3.2017, passed by opposite party no.1 in Regular Suit No.382 of 2010; Bela Pati v. Ramzan Ali and others is hereby set aside with observation that the learned Court below shall summon the opposite party no.4 as a court witness and examine and record his statement before proceeding any further. It is also to be noted that there is already an order of this Court to decide the suit in a time bound manner and therefore the learned court below shall make all possible endeavour to record the statement of opposite party no.4 who is already represented through his counsel in the court below on the next date fixed and do not adjourn the proceedings on an application preferred by any of the parties. The learned Court below shall make all possible endeavour to decide the suit in accordance with law, giving opportunity of hearing to the parties concerned expeditiously.

With the aforesaid observations, writ petition is allowed.