Munni Bai & Others. vs Smt. Kubra Bee & Others

The petitioners/defendants No.1 to 3 have filed the present petition being aggrieved by order dated 6.3.2020 whereby the application filed under

Order 17 Rule 1 of C.P.C. has been dismissed.

Respondents/plaintiffs have filed the suit for declaration, permanent injunction and cancellation of 'Hiba' in respect of land bearing Survey Nos.

56+64/2, 57, 58/2 and 60/1 of Village Sutarkhedi, Tehsil Mhow, District Indore (hereinafter referred to as “the suit propertyâ€). The suit property

was initially owned by Ismail and the plaintiffs are claiming their right and title over the suit property by virtue of succession. The suit property has

been mutated in the name of defendants by virtue of oral 'Hibanama', which gave the cause of action to the plaintiffs for filing the suit challenging the

'Hibanama'.

The plaintiffs filed the suit on 15.2.2018. After receipt of the summons, the defendants appeared and filed the written statement on 11.7.2018.

Thereafter, the trial Court framed the issues on 18.7.2018. The plaintiffs have concluded their evidence and at present, evidence of defendants are

going on. Along with the written statement, the defendants have filed the original affidavit of Ismail executed in respect of 'Hibanama' and also filed

photocopy of another affidavit of Ismail bearing Notary No.133/2007 dated 19.6.2007. The original affidavit was marked as Ex. D/6 and at the time of

marking the photocopy of the affidavit in evidence at the instance of plaintiffs, the defendants came up with the plea that by mistake, the said affidavit

has been filed and the same is not related with the subject matter of the suit, hence the same be ignored. The plaintiffs, after getting the photocopy of

the affidavit of Ismail along with the written statement by defendants, immediately filed the application under Order 7 Rule 12 of C.P.C. seeking

production of the original of the said affidavit by the defendants. The defendants filed an affidavit on 26.2.2020 that the original document is not in

their possession. Thereafter, the plaintiffs filed another application u/s. 63 & 65 of the Indian Evidence Act seeking permission to prove the affidavit of

Ismail as secondary evidence which was opposed by the defendants on the ground that the property mentioned in the said affidavit are different and

not related to the suit property. Learned trial Court vide order dated 28.2.2020 has allowed the application by placing the reliance over the judgment of

apex Court in the case of J. Yashoda V/s. K. Shobharani : (2007) 5 SCC 730.

After passing the aforesaid order dated 28.2.2020, the petitioner filed an application under Order 7 Rule 14 of C.P.C. seeking adjournment in order

to challenge order dated 28.2.2020 before this Court. Learned trial Court has fixed the case on 26.2.2020 and thereafter fixed the case on 5.3.2020.

On the said date, plaintiffs filed an application seeking permission to produce Hindi translation of 'Nikahnama'. Defendants also filed an application

under Order 7 Rule 14 of C.P.C. for adjournment as witnesses were not The defendants sought time to file reply to the said application. Vide order

dated 5.3.2020, learned trial Court has allowed the application under Order 8 Rule 1 read with section 151 of C.P.C. with cost of Rs.200/-. By the said

order, learned trial Court has closed the right of defence of the defendants due to non-production of the defendants' witnesses â€" Hamidullah Qureshi

and Akbar Ghosi, hence the present petition before this Court.

The petitioners/defendants challenged the order dated 28.2.2020 by way of M.P. No.1505/2020. Today, said petition has been dismissed today

itself.

On 5.3.2020, the plaintiffs filed an application under Order 7 Rule 10 of C.P.C. seeking permission to file Hindi translation of 'Nikahnama'. The

defendants sought time to file reply to the said application. Therefore, there was no occasion to call the witnesses for cross examination, hence, the

trial Court ought to have given adjournment. Defendants were not given time to verify as to plaintiffs have filed correct Hindi Translation or not? On

the said date, the trial Court was required to decide the application under Order 7 Rule 14 of C.P.C., therefore, the trial Court has wrongly closed the

right of defence of the defendants. Hence, the order dated 5.3.2020 is hereby set aside so far it relates to closing of right to give evidence.

Shri Jitendra Verma, learned counsel appearing for the petitioners/defendants, submits that the trial Court is proceeding with the trial in hasty

manner without giving proper opportunity to the defendants to contest the case effectively. The suit is not very old and the defendants are cooperating

for early disposal.

Shri Sanjay Sharma, learned counsel appearing for respondents/plaintiffs opposes such prayer by submitting that after granting 10 opportunities to

produce evidence, now the trial Judge has rightly closed the right, hence no interference is called for with the impugned order.

The plaintiffs filed the suit on 15.2.2018 and immediately thereafter the defendants have filed the written statement. Thereafter, the trial Court has

framed the issues. The plaintiffs have concluded their evidence and now the case is fixed for defendants' evidence. No party is trying the delay the

suit proceedings. The plaintiffs are challenging the 'Hibanama' dated 19.6.2007. There are two affidavits of Ismail. The parties have to examine the

documents for their valuable rights. The suit is not under the category of “5 years oldâ€. On 5.3.2020, an application was filed by the plaintiffs to

produce Hindi translation of 'Nikahnama' and the defendants sought time to examine the same whether the Hindi translation is proper or not. On the

said date, the trial Court has closed the right of defence of the defendants. In the opinion of this Court, the trial Court should not proceed in such a

manner so that the parties may get proper opportunity to contest their case. Civil Court is a fact finding Court. It is the duty of the Court that by

seeking unnecessary adjournment, opposite party should not suffer irreparable loss. The conclusion of proceedings of civil suit within short time is the

need of time, but the party should not have impression that proper opportunities are not being given to them to protect its interest. This Court hopes

and trust that learned trial Judge will keep this in mind while deciding the suit.

With the aforesaid, this petition stands disposed of.