Smt Tapan Tomar vs Danish Grih Nirman Sah. Samiti Maryadit, Bhopal and others

This petition has been filed under Article 227 of the Constitution of India by the petitioner-defendant No.15 against the order dated 29.4.2017

(Annexure P/1) passed in RCS No.11-A/2001 (old No.109-A/98) passed by XIV Additional District Judge, Bhopal whereby the petitioner''s

applications one filed under Order VIII Rule 1(3) read with Section 151 of CPC for production of certain documents has been dismissed and

another application filed under Order XVI Rule 1 and 3 read with Section 151 of CPC for calling the witnesses to prove the said documents has

also been dismissed.

The petitioner''s case is that a civil suit was filed by the respondent No.1/plaintiff claiming specific performance of contract and permanent

injunction stating that the plaintiff had executed an agreement with the defendant No.1 and also paid the part consideration, however the defendant

No.1 sold the property to other persons, hence the plaintiff filed the suit. The petitioner/defendant No.15 denied the plaint averments and the case

was listed for evidence.

In the aforesaid suit an application was filed by the petitioner under Order VIII Rule 1(3) read with Section 151 of CPC for taking certain

documents on record. Similarly an application under Order XVI Rule 1 and 3 read with Section 151 of CPC was also filed for calling the

witnesses to prove the said documents. The aforesaid applications have been rejected by the learned Judge of the Trail Court and being aggrieved

of the same, this petition has been filed.

Counsel for the petitioner submits that the learned Judge has erred in dismissing the aforesaid applications despite the fact that the documents

were relevant and were necessary for the appropriate adjudication of the controversy involved in the case. It is further submitted that the

petitioner''s application to call the witnesses has also been dismissed on the ground that since the application to take the documents on record has

already been dismissed.

From the reply to the application filed under Order VIII Rule 1 (3) of CPC submitted by the plaintiff, it appears that the plaintiff has raised an

objection that no justifiable reasons have been assigned by the petitioner-defendant No.15 to file such application at a belated stage despite the

fact that the petitioner has pleaded in the written statement that certain houses have already been constructed on the disputed land and despite the

fact that the petitioner had filed the written statement in the year 2011. Thus, it is submitted that the application be dismissed.

So far as the reply to the application filed under Order XVI Rule 1 and 3 is concerned, it is stated by the plaintiff that the documents sought to

be produced through the witnesses is merely a pretext to further delay the matter. It is further stated that on the last date of hearing i.e. on

20.04.2017, the learned trial court had already directed the petitioner to do the needful to call the witnesses by taking the Hamdast notices on the

next date of hearing i.e. on 27.04.2017 but the petitioner, instead of taking any steps in this behalf, has filed the aforesaid applications which

deserve dismissal.

Heard learned counsel for the petitioner and perused the record.

From the record, this Court finds that the civil suit was filed by the respondent No.1/plaintiff in the year 1998 as the old number is 109-A/98,

thus already 20 years have already passed since the filing of the aforesaid civil suit. The petitionerdefendant No.15 appears to have been arrayed

as defendant subsequently in the year 2011 only and filed its written statement on 20.10.2011, but even after filing of the written statement by the

petitioner in the year 2011 she did not file the list of witnesses or the documents relied upon along with her written statement and filed the

application on 27.4.2017 under Order VIII Rule 1(3) read with Section 151 of CPC for taking certain documents on record, another application

under Order XVI Rule 1 and 3 read with Section 151 of CPC was also filed for calling the witnesses to prove the said documents. In the aforesaid

application, it is stated that the defendant No.15 had purchased the property from their respective owners and also got the possession of the same

but the original sale deeds were misplaced, hence the same could not be furnished to the counsel in time and no sooner the aforesaid documents

were obtained by the petitioner/defendant No.15 the same were submitted in the court. It is further stated in the aforesaid application that the

documents are relevant and would be necessary for the proper adjudication of the trial. So far as the order passed on the application under Order

XVI Rule 1 and 3 of CPC is concerned, it is apparent that since the Court has already dismissed the petitioner''s application for taking additional

documents on record, hence there was no necessity to call the witnesses who were to be examined for proving the aforesaid documents.

From the written statement submitted by the petitioner, it is found that the petitioner''s case was that there are various houses already

constructed on the disputed land, hence there was no reason for the plaintiff to enter into an agreement in respect of the disputed property. In such

circumstances, it was necessary for the petitioner to corroborate the aforesaid contention with the relevant documents and although it was

necessary for her to produce the relevant documents at the initial stage while filing the written statement, however the aforesaid documents were

not filed and for which reason the aforesaid applications have been filed.

Although no illegality has been committed by the learned Judge of the Trial Court in passing the impugned order and the negligence on the part

of the petitioner is also apparent on the face of record but still, in the considered opinion of this Court looking to the fact that the petitioner was

impleaded in the year 2011 in a suit filed in the year 1998, the plaintiff is also equally responsible for procrastinating the civil suit, even in the

present writ petition, no special efforts appears to be taken by the plaintiff to get it disposed of at the earliest after the proceedings of the Trial

Court were stayed by this court on 30.06.2017. This court is of the opinion that the documents as sought to be produced by the petitioner would

be necessary to corroborate her defence taken up in her written statement, thus, in the interest of justice the applications can be allowed at a cost.

In the circumstances, the impugned order dated 29.04.2017 (Annexure P/1) is hereby quashed subject to payment of cost of Rs.30,000/-

(Rupees Thirty Thousand Only) to be paid by the petitioner for her or her counsel''s negligent approach in prosecuting her case. Out of the

aforesaid amount of Rs.30,000/-, the petitioner is directed to pay a cost of Rs.15,000/- (Rupees Fifteen Thousand) to the plaintiff before the Trial

court and is further directed to deposit a cost of Rs.15,000/- (Rupees Fifteen Thousand) before the District Legal Services Authority, Bhopal.

Subject to the aforesaid deposit within a period of 10 working days from today, the learned judge of the Trial Court shall allow the petitioner

to place the documents on record as desired in the application filed under Order VIII Rule 1(3) of CPC and at her own cost allow the witnesses to

be examined as desired in the application filed under Order XVI Rule 1 & 3 of CPC. It is made clear that no adjournments shall be sought by the

petitioner and the trial shall be concluded by the learned Judge within a period of six months from the date of receipt of this order.

The writ petition stands allowed with costs as aforesaid.