Madhya Pradesh High Court
Krishnapal Singh vs Smt. Shakun Bai on 10 May, 2018
HIGH COURT OF MADHYA PRADESH
1 W.P.No.3494/2016
Krishnapal Singh Vs. Smt. Shakun Bai & Anr.
Gwalior Bench Dated: 10.05.2018
Shri Amit Lahoti, learned counsel for the petitioner.
Shri S.K. Khare, learned counsel for respondent No.1.
Shri B.M. Patel, learned Government Advocate for respondent No.2/State.
With consent heard finally.
The present petition under Article 227 of Constitution of India has been preferred by the petitioner as defendant No.1 being aggrieved by the order dated 31-03-2016 passed by the trial Court whereby the application preferred by defendant under Order XIII Rule 10 of CPC has been rejected.
As per submission, respondent No.1/plaintiff filed a suit for declaration with respect to the suit property in which it has been specifically submitted that after the death of husband of plaintiff, property came into the share of plaintiff whereas defendant No.1 (present petitioner) fraudulently got the aforesaid property mutated in his favour before the revenue Court vide order dated 07-05-2010. It was the specific allegation of the plaintiff that she never appeared before Tahsildar nor any consent has been given by her in favour of petitioner, therefore, mutation proceedings are sham transaction and void ab initio.
Petitioner filed written statement and contested the claim. To ascertain authenticity and veracity of the signature of the plaintiff, through application under Order XIII Rule 10 of CPC petitioner tried to requisition the record of Court of Naib Tahsildar, Kurwai District Vidisha, but the said application was turned down. Therefore, petitioner preferred this petition.
According to learned counsel for the petitioner, once the plaint has been filed by the plaintiff on the ground of fraud allegedly committed by the petitioner (as defendant No.1) therefore, it is imperative that original record of the Court of Naib HIGH COURT OF MADHYA PRADESH 2 W.P.No.3494/2016 Tahsildar Court be brought before the trial Court for ascertaining the veracity of respective claims of the parties. Therefore, trial Court erred in passing the impugned order whereby the application rejected.
Learned counsel for respondent No.1 opposed the prayer made by the petitioner and supported the impugned order. According to learned counsel for respondent No.2, petitioner has already filed certified copy of the order, therefore, the same can be taken on record. Thus, prayed for dismissal of petition.
Heard learned counsel for the parties and perused the documents appended thereto.
From perusal of pleadings inter se between the parties in the litigation, it appears that the suit has been filed on the basis alleged fraud committed by defendant No.1 in the Court of Naib Tahsildar, Kurwai. To reach out to the truth, one of the devices given in CPC is requisition of the original record as per Order XIII Rule 10 of CPC. Procedure is described in Rules 104 and 105 of Rules of M.P. Civil Courts Act, 1958 wherein record of an authority can be brought.
Considering the fact situation of the case as well as legal provisions, it appear that trial Court erred in passing the impugned order rejecting the application of the petitioner because requisition of the original record would ensure more transparency and reliability in evidence to crystalize the controversy in logical and meaningful manner. Although certified copy of the documents may be available but some of them may constitute as public document and some may not, therefore, later on, dispute may crop up in this regard. To facilitate the suit proceedings in an effective and meaningful manner, trial Court ought to have requisitioned the record of the Court of Naib Tahsilar, Kurwai. However, from perusal of application, it appears that same is not supported by affidavit HIGH COURT OF MADHYA PRADESH 3 W.P.No.3494/2016 which is the requirement under Order XIII Rule 10 of CPC. Only Court may take suo motu cognizance or dispense with the affidavit. Present case is not such, where court may dispense with such omission, however, interest of justice requires that petitioner be given a chance to renew his prayer with affidavit.
Therefore, in the fact situation of the case, petitioner is directed to file a fresh application along with affidavit for requisition of the record so as to comply the provisions of Order XIII Rule 10 of CPC and trial Court shall consider the same and take appropriate decision on the basis of discussion made above.
With the aforesaid directions, petition stands disposed of.
(Anand Pathak)
Anil* Judge
Digitally signed by ANIL
KUMAR CHAURASIYA
Date: 2018.05.16 13:42:59
+05'30'