Jharkhandi Mahto vs Mangar Mahto And Ors

This writ petition has been filed under Article 227 of the Constitution of India whereby and whereunder order dated 22.01.2019 passed by Munsif, Giridih in Title Suit No. 200 of 1993, is under challenge, by which the petition filed by the petitioner/defendant dated 05.01.2019 under Section 151 of the Code of Civil Procedure for recall of order dated 09.09.2005 to expunge the evidence of plaintiff/respondent's witness, namely Ganesh Ram, has been rejected.

Brief facts of the case, as per the pleadings made in the writ petition, is that the respondent/plaintiff has filed the Title Suit No. 200 of 1993 against the respondent/defendant praying therein a decree for adjudication of his raiyati occupancy right over the suit lands, which he is claiming by virtue of settlement made by the ex-landlord on payment of salami. The petitioner/defendant has filed written statement contestingtheclaim.Afterappearancethe petitioner/defendant had to produce evidence but the defence evidence has been closed on 09.09.2005.

The petitioner has filed a petition on 05.01.2019 by invoking the jurisdiction conferred under Section 151 of the Code of Civil Procedure but the same has been rejected by taking into consideration the order passed by this Court in W.P. (C) No. 4177 of 2005 which was disposed of vide order dated 29.08.2011, wherein this Court, in exercise of power conferred under Article 227 of the Constitution of India, has directed to expedite the trial since the suit is of the year 1993.

Mr. Kundan Kumar Ambasta, learned counsel for the petitioner has submitted that closure of the evidence, to be presented on behalf of defendant/petitioner, has caused serious prejudice and, therefore, the trial Court ought to have taken into consideration the aforesaid aspect of the matter but having not considered so, illegality has been committed.

Having heard learned counsel for the petitioner and on going across the impugned order, wherefrom it is evident that a title suit being Title Suit No. 200 of 1993 has been filed in the year 1993 against the petitioner/defendant. The petitioner/defendant has put his appearance and filed written statement but after appearance, on 09.09.2005 the plaintiff has presented a witness for his examination-in-chief, namely Ganesh Ram and the petitioner/defendant has sought for time to allow him to bring some order from the High Court against the closure of the evidence to be presented on behalf of defendant vide order dated 09.09.2005. The petitioner has filed a writ petition being W.P. (C) No. 4177 of 2005, questioning the order by which the petition filed under Order VI Rule 17 C.P.C has been rejected but the said writ petition was allowed permitting the petitioner to make amendment in written statement and directed the trial Court to expedite the trial for its conclusion.

It is the specific case of the petitioner that the evidence of the defendant was closed on 09.09.2005 prior to order dated 9.09.2005, which has been allowed but the petitioner has not taken endeavour to recall order dated 09.09.2005 fairly for a long period of more than 13 and ½ years and thereafter a petition has been filed in the year 2019 on 5.01.2019 invoking the jurisdiction of the Court conferred under Section 151 of the Code of Civil Procedure but the same has been disallowed by the trial Court.

This Court is of the view that the order as has been passed by the trial Court which is impugned in the writ petition does not require any interference by this Court for the following reasons:

(I).The petitioner has put his appearance and also has filed written statement prior to 09.09.2005 as also petition under Order VI Rule 17 of the Code of Civil Procedure was filed prior to order dated 09.09.2005. However, the prayer for amendment, which was subject matter of W.P.(C) No. 4177 of 2005, has been allowed vide order dated 29.08.2011 but thereafter also no endeavour has been taken by the petitioner for recalling of the order dated 09.09.2005 that is fairly for a long period of 11 years.

(ii).The conduct of the petitioner reflects that he is no more interested in early disposal of the suit otherwise when he was pursing the application under Article 227 of the Constitution of India before this Court, he ought to have made an application for recall of the order passed on 09.09.2005 immediately thereafter. But having chosen not to do so, it is evident that it is nothing but a delaying tactics for not early disposal of the said suit.

(iii).It is also evident from the impugned order that this Court while disposing of the writ petition vide order dated 29.08.2011 has directed for early disposal of the suit and even after the order passed in the said writ petition the petitioner has not filed any petition for recall of the order dated 09.09.2005 fairly for a long period of about more than 7 years.

Looking to the aforesaid facts, this Court is of the view that the order passed by trial Court is not warranting any interference by this Court under Article 227 of the Constitution of India.

Accordingly, writ petition is dismissed.