Madhya Pradesh High Court
Vijay Kumar Jain vs Narendra Kumar Jain Judgement Given By: ... on 16 December, 2013
1
W.P. No. 20617/2013
16.12.2013
Shri Y.P. Sharma, learned counsel for the petitioner.
Heard.
Order dated 11.11.2013, passed in Civil Suit No. 3 A/2011 by
Additional Civil Judge Class II to the Court of Civil Judge Class 1,
district Katni is being assailed vide this petition under Article 227 of
the Constitution of India.
Vide impugned order an application under Order 8 Rule 1 (a),
Code of Civil Procedure, 1908, Order 18 Rule 17 Code of Civil
Procedure, 1908 and an application under Section 151 read with
Section 64 of Evidence Act filed by the petitioner has been rejected.
Suit at the instance of respondent Nos. 1 to 7 is for declaration,
partition, possession and permanent injunction regarding land bearing Patwari Halka No. 95/38 Khasra No. 546/2 area 0.405 hectare (new number 594 area 0.34 hectare) situated at village Sleemnabad, district Katni. Petitioner/ defendant denied the claim. Whereon, issues were framed. Parties to the suit closed their evidence and when the matter was posted for final arguments, petitioner/defendant filed three applications under Order 8 Rule 1
(a), under Order 18 Rule 17, CPC and under Section 151 CPC read with Section 64 of the Evidence Act. Vide this application petitioner/ defendant sought leave of the Court to produce certain documents said to be Batwaranama and also sought leave to adduce additional evidence to prove these documents as also the alleged will on the basis whereof the petitioner/defendant has pleaded the right over the suit property.
Trial Court taking into consideration the entire facts on record and on a finding that the document which the petitioner intended to produce being of a date much prior to filing of the suit and taking into 2 consideration that the plaintiff as well as defendants have closed the evidence and the matter is posted for final hearing declined to grant leave to the petitioner to produce additional documents and lead additional evidence.
The exercise of jurisdiction by the Trial Court when tested on the touchstone of order 8 Rule 1 (a) (3) and Order 18 Rule 17, Code of Civil Procedure, 1908 does not warrant any interference as it is within the jurisdiction of the Trial Court to refuse the exercise the discretion as conferred by subrule (3) of Rule 1 (a) of Order 8 CPC as the petitioner/defendant has failed to establish his bona fide. The Trial Court was well within its jurisdiction in declining the leave to the petitioner to adduce additional evidence.
Order 18 Rule 17 CPC provides for that the Court may at any stage of a suit recall any witness who has been examined and may put such question to him as the Court thinks fit. The provision cannot be allowed to be used to fill up the lacuna in evidence which the petitioner attempted by filing application for recalling the witness to exhibit certain documents which the petitioner proposed to file vide application under Order 8 Rule 1 (a) CPC.
In view whereof no interference is caused. Petition fails and is dismissed.
(SANJAY YADAV) JUDGE VT