Rajasthan High Court - Jodhpur
Maharana Mahendra Singh vs . Shri Arvind Singh & on 22 July, 2015
Author: P.K. Lohra
Bench: P.K. Lohra
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:: O R D E R ::
S.B. CIVIL WRIT PETITION No.5127/2015
Maharana Mahendra Singh V/s. Shri Arvind Singh &
Ors.
Date of Judgment ::: 22.07.2015
PRESENT
HON'BLE MR. JUSTICE P.K. LOHRA
Mr. Sandeep Shah, for the petitioner.
Mr. Manish Sisodia, for respondents No.1 & 2.
BY THE COURT
Petitioner-plaintiff has preferred this writ petition to challenge the order dated 6th of April 2015 passed by learned Additional District Judge No.2, Udaipur (for short, 'Court below'), whereby learned Court below has rejected his application under Order 16 Rules 1 & 6 read with Section 151 CPC.
The bare necessary facts, for the purpose of this petition, are that petitioner instituted a suit for partition before learned Court below, which is pending since 1986. 2 In terms of the pleadings of rival parties, learned trial Court settled 14 issues on 28th July, 2012. Subsequently, an endeavour was made by second respondent to seek amendment in issues and also made endeavour for impleadment of party-defendant under Order 1 Rule 10 CPC. That apart, certain applications were also laid at the behest of the petitioner. Ultimately, after decision on all the applications, matter was fixed for recording evidence of petitioner-plaintiff on 6th of March, 2014. From 6th of March, 2014 to 28th of January, 2015, matter was deferred on one pretext or other and the evidence of the petitioner-plaintiff was not recorded. In the interregnum, petitioner also moved an application under Section 65 of the Evidence Act, but the same was rejected by the learned Court below, and aforesaid order of the learned Court was affirmed by this Court also. It appears that neither the petitioner himself appeared in the witness-box, nor examined any of his witness, therefore, learned Court below closed his evidence on 28th January, 2015. Feeling aggrieved by aforesaid order of learned Court below, petitioner approached this Court by way of filing S.B. Civil Writ Petition No.1480/2015. This Court, after bipartite hearing, decided the said writ petition on 13th March, 2015. Operative portion of the order reads as under :-
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In view of the above statement made by learned counsel for the parties, the present petition is allowed subject to payment of Rs.5,000/- as cost, as under:-
(i) The order dated 28.1.2015 passed by Additional District Judge No2. Udaipur is set aside;
(ii) The petitioner shall produce his entire evidence and complete the same in two hearings within one month from the next date of hearing i.e. 17.3.2015;
(iii) No further opportunity shall be granted to the petitioner.
After passing the order dated 13th March, 2015, on 17th March 2015 neither the petitioner, nor his witness was present, and therefore, taking note of the order passed by this Court, learned Court below directed the petitioner to produce Hindi version of his affidavit, which was tendered in evidence. In terms of order dated 13th March, 2015, petitioner was required to produce his entire evidence on two hearings within one month, the learned Court below deferred the matter on 17th March, 2015 and fixed the next date of hearing as 1st of April, 2015 for recording his evidence. In the interregnum certain miscellaneous applications were considered by the learned Court below on 20th of March, 2015 as well as on 27th of March, 2015. On 1st of April 2015, on behalf of petitioner, certain documents were filed and statements of petitioner-plaintiff were recorded. A request was also made, at the behest of 4 petitioner, to produce one more witness and simultaneously an application under Order 16 Rule 1 read with Section 151 CPC is filed. The learned Court below deferred the matter for consideration of application of the petitioner as fixed next date as 3rd of April, 2015. On 3rd April, 2015 reply to application under Order XVI Rule 1 CPC is filed and arguments were heard by the Court. Therefore, on 6th April 2015 by the impugned order petitioner's application is rejected.
While rejecting the application of the petitioner, learned Court below has precisely relied on operative portion of the order dated 13th March, 2015 passed by this Court in SBCW No.5127/2015. In the order impugned, learned Court below also taken note of the fact that petitioner has not produced list of witnesses within 15 days from the date of framing of the issues as per Order XVI Rule 1 CPC. Learned Court below has also dilated on the conduct of the petitioner in prolonging the matter for tendering his evidence. Essentially, learned Court below, while construing the order passed by this Court on 13th March, 2015, has observed that as this fact was not brought to the notice of this Court at the time of disposal of the aforesaid writ petition, the endeavour made by the 5 petitioner through application under Order 16 Rules 1 & 6 read with Section 151 CPC is not bona fide. In that background, learned Court below declined the prayer of the petitioner to summon a witness or documents on which he wants to place reliance.
I have heard learned counsel for the parties, perused impugned order and certified copies of the order sheets placed on record by the learned counsel for the petitioner.
In support of his contentions, learned counsel for the petitioner has placed reliance on following decisions:
· Mange Ram V/s. Brij Mohan & Ors. [AIR 1983 SC 925].
· Kalu V/s. Chhitar (21) [1987 RLW 95]. · Satnam Transport Company V/s. Prakash Mal Surana (1980 RLW 213].
· Minor Dipika & Etc. V/s. C.G. State Electricity Board & Anr. [AIR 2007 Chh. 1].
· Eldhose V/s. Yacob & Ors. [AIR 2009 Ker 104].
· N. Balaraju & Anr. V/s. G. Vidhyadhar [AIR 2004 AP 516].
· Neel Kamal @ Rajoo V/s. Civil Judge (S.D.) Ghazipur & Anr. 2012 (2) CCC 803 (All.).
· Lalithaj. Rai V/s. Aithappa Rai [(1995) 4 SCC 244].6
· Chekka Krishna Prasad V/s. Kotha Appa Rao.
Upon perusal of the impugned order, in its entirety, in my considered opinion, learned Court below has not committed any error much less an error apparent on the face of record. The order passed by this Court on petitioner's earlier writ petition is clear and unequivocal and the true purport of the order enjoins upon the petitioner to produce/tender his entire evidence in two hearings within a month to be reckoned from 17th of March, 2015. From the order dated 13th of March, 2015 it is amply clear that at the time of passing of the said order, petitioner has not made any endeavour to apprise the Court to summon any witness or documents for substantiating his case and therefore Court has granted indulgence to the petitioner to produce at his own responsibility entire evidence in two hearings. It is also noteworthy that the said indulgence was granted to the petitioner on a concession being made by learned counsel appearing for the respondents subject to payment of cost of Rs.5,000/-. In such a situation, it cannot be said that while allowing the writ petition, Court has granted liberty to the petitioner to summon the witness or documents for supporting/strengthening his case. All that which can be deduced from the order dated 13th of March, 2015 is that 7 petitioner was obliged to produce his entire evidence within two hearings to be commenced from 17th March, 2015.
The judgments on which learned counsel for the petitioner has placed are clearly distinguishable as order passed by this Court in SBCW No.1480/2015 on 13.03.2015 is clear and unequivocal. Moreover, no list of witnesses was filed by the petitioner in terms of Order XVI Rule 1 CPC and as such in want of cogent reasons, the learned Court below has rightly declined prayer of the petitioner. It is trite that jurisdiction under Article 227 is not akin to appellate jurisdiction and the same has to be exercised with utmost care and circumspection. In view of the fact that suit filed by the petitioner is pending since last three decades and order passed earlier by the Court nowhere allows petitioner to summon witnesses or documents, there is no reason to interfere with the impugned order.
Therefore, in totality, I am unable to find any legal infirmity or any manifest error in the impugned order warranting interference in the limited scope of judicial review in exercise of supervisory jurisdiction enshrined under Article 227 of the Constitution. 8
Resultantly, present writ petition fails and same is, hereby, dismissed summarily.
(P.K. LOHRA) J.
a.asopa/-