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Judgment
1/ By this miscellaneous petition under Article 227 of the Constitution, defendants in the suit have challenged order of the trial Court dated 2.2.2019 rejecting the petitioner's application under Order 16 Rule 1 read with Section 151 of the CPC.
2/ Learned counsel appearing for the petitioners submits that the trial Court has committed an error in rejecting the petitioner's application without assigning any proper reason and that since several transactions had taken place, therefore, it was necessary to call the Registrar in witness to prove the conveyance deeds and the certified copies which are available with the petitioner, are secondary evidence.
3/ Learned counsel for the respondent No.3 has opposed the petition.
4/ Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the respondent No.1 has filed the suit for declaration, partition and possession. In the said suit the petitioners had filed the application under Order 16 Rule 1 of the CPC with a prayer to summon the Dy. Registrar (Registration), Indore as witness for the purpose of exhibiting and proving the sale deeds and lease deeds to be produced by the petitioners in respect of the suit property. The trial Court has rejected the application simply by mentioning that the prayer is not acceptable on the facts and grounds mentioned by the petitioners. The order in this regard passed by the trial Court is a cryptic order. In terms of Order 16 Rule 1(3) of the CPC, the trial Court is required to examine if the party concerned has shown the sufficient cause for the omission to mention the name of such witness in the list and if the condition is duly proved, then the appropriate order is required to be passed but in the present case the trial Court has failed to carry out the said exercise.
5/ Counsel for the petitioner has also placed reliance upon the judgment of this Court in the matter of Ramsiya Vs. Anuradha and others reported in 2016(I) MPWN 45, wherein it has been held that every litigant ought to be afforded an opportunity of deciding the issue involved on merit, without the same being scuttled on mere technicalities, unless the technicalities are so predominant that they overshadow the merits of the matter. He has also placed reliance upon the judgment in the matter of Mandir Shri Hanuman Murti and another Vs. Collector Mahoday, Datia and another reported in 2015(3) JLJ 396, wherein it has been held that a witness can be brought by party even if no list is filed earlier or name of said witness does not figure in the said list and the trial Court is not required to take a hyper technical view in the matter. He has also placed reliance upon the judgment of this Court in the matter of Rekha and others Vs. Smt. Ratnashree reported in 2006(2) JLJ 275, wherein the Division Bench of this Court has held that the registered sale deed is a private document, hence the sale was required to be adequately proved.
6/ In view of the aforesaid analysis, I am of the opinion that the impugned order passed by the trial Court cannot be sustained and is hereby set aside with a direction to the trial Court to re-decide the application under Order 16 Rule 1 of the CPC in accordance with law after duly considering the observations made above.
7/ The miscellaneous petition is accordingly disposed off.