Raju Paswan @ Raju Kumar Paswan vs Smt. Muni Devi & Others
2022 Latest Caselaw 1274 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Civil Writ Jurisdiction)
                W.P. (C) No. 3052 of 2012
                         ........

Raju Paswan @ Raju Kumar Paswan, son of Late Nageshwar Paswan, resident of Village - Kohbir, P.O. and P.S. - Basia, District

- Gumla, Jharkhand.

                                             ..... Petitioner
                             Versus
Smt. Muni Devi & Others                       ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :- Video Conferencing) ............

For the Petitioner : Mr. Arun Kumar, Advocate.

For the Respondent No. 1 : Mr. A.K. Sahani, Advocate.

........

11/30.03.2022.

Heard, learned counsel for the petitioner, Mr. Arun Kumar and learned counsel for the respondent no. 1, Mr. A.K. Sahani.

The petitioner / defendant has preferred this writ petition for quashing the order dated 27.04.2012 passed by Civil Judge, Junior Division, Gumla in Title Suit No. 16/1998, whereby the petition filed by the defendant under Section 61 of the Indian Evidence Act read with Section 151 of the C.P.C. has been rejected.

Learned counsel for the petitioner / defendant, Mr. Arun Kumar has submitted that the plaintiff / respondent no. 1, Muni Devi has filed Title Suit No. 16/1998 against the petitioner / defendant and others for following reliefs:-

(i) That on adjudication the plaintiff's title be declared over the suit land and confirm the possession of the plaintiff over the suit land.

(ii) That the sale Deed No. 2216/1986 executed by Dashrath Sahu in favour of Nageshwar Prasad Paswan be declared void, illegal and not binding upon the plaintiff.

(iii) That cost of suit may be awarded to the plaintiff.

(iv) That any other relief or reliefs to which Court found proper be also awarded to the Plaintiff.

Learned counsel for the petitioner / defendant, Mr. Arun kumar has further submitted, that plaintiff / respondent no. 1, Muni Devi has also filed a list of documents on 13.07.2004 stating therein that

these documents are being filed by the plaintiff, which are as follows:-

(1) Government rent receipt (7 sheets) (2) Certified copy of Patta No. 2216 of 1986 (6 pages) (3) Order Sheet of Cr. Revision No. 429/1963 (10 pages). (4) Certified Copy of Mutation Case No. 1R27/1962-63 (3 pages).

(5) Criminal Case No. 42/1942 (Most. Rukmini Vs. Ram Kishun) (1 page) (6) Certified copy of Patta No. 284/54 (5 page). (7) Khorposhnama dated 12.04.1925 (1 page).

Learned counsel for the petitioner / defendant has further submitted, that these documents have been filed by the plaintiff, when the defendant filed an application under Section 61 of the Evidence Act read with Section 151 of the C.P.C. before the court below to Exhibit the Sada Khorposhnama dated 12.04.1925. The same was initially rejected on 16.12.2011, then on 18.02.2012 and again on 27.04.2012, considering that earlier orders passed by learned Sub Judge on 16.12.2011, 18.02.2012 are res judicata for allowing such prayer of the defendant / petitioner.

Learned counsel for the petitioner / defendant has furhter submitted, that under Article 227 of the Constitution of India, this Court has superintendence power over the learned trial court and may consider that the document, which has been filed by the Plaintiff and also admitted by the plaintiff, and thus it would be proper for the Court, if, the defendant has no objection to mark the said document on behalf of the plaintiff as an Exhibit and if the plaintiff fails to do so, then it is incumbent upon the learned court below to exhibit said document on behalf of the defendant as exhibit in alphabet series, but non-exhibiting of such document on a frivolous plea shall cause miscarriage of justice and this Court under Article 227 of the Constitution of India is to look into such miscarriage of justice and pass necessary order.

Learned counsel, Mr. A.K. Sahani appearing for the plaintiff / respondent no. 1 has submitted, that apart from the issue of res judicata, this document has already been marked as Exhibit-9, which shall be apparent from page-3 of the impugned order dated 27.04.2012 and again exhibiting the same on behalf of the defendant is of no utility, rather document exhibited on behalf of the plaintiff or on behalf of the defendant is to be considered by the Civil Judge while pronouncing the judgment on the issue framed by him, as such, it would be unnecessary to keep this matter pending before this Court as the said document has already been exhibited as Exhibit-9. Apart from that, such finding of the learned Sub Judge is res judicata for petitioner / defendant to file the same petition once and repeatedly one after another, which may be deprecated by this Court.

Considering the rival submission of the parties, looking into facts and circumstances of the case, Section 11 of the C.P.C. defines res judicata according to which, no Court shall try any suit or issue in which matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

This Court is of the view that the principle of res judicata will not apply in the present case, as no earlier suit has been decided between the same parties with regard to the same issue, as such the impugned order passed on the basis of res judicata is not sustainable in the eye of law. Accordingly, the same is hereby set aside.

So far Article 227 of the Constitution of India is concerned, this Court is of the view that a document with regard to the Sada Khorposhnama dated 12.04.1925, which has been produced and filed by the plaintiff by way of list of document dated 13.07.2004 and the same has been exhibited as Exhibit-9 as per impugned order, if such prayer is made by the plaintiff that it is not required, but if defendant insist upon to mark the same, as an exhibit, the plaintiff should not

have opposed the same and the said document, which has been marked as Exhibit-9 can also be exhibited on behalf of defendant in alphabetic series to resolve the dispute.

Accordingly, the impugned order dated 27.04.2012 passed by learned Civil Judge, Junior Division, Gumla in T.S. No. 16/1998 is hereby set aside.

Learned trial court is directed to exhibit the document i.e. Sada Khorposhnama dated 12.04.1925 on behalf of the defendant in alphabetic series, as document is admitted between the parties and shall refer that the document at Exhibit-9 and Exhibit in alphabetic series are the same. Accordingly, the trial court is directed to proceed in accordance with law.

The writ petition is hereby allowed.

Let a copy of order be communicated to the learned trial court. The suit shall be decided expeditiously without giving unnecessary adjournment to any of the parties, as suit is pending since 1998.

(Kailash Prasad Deo, J.) Sunil/-