Geeta Mohite vs Jayshree Melani
2022 Latest Caselaw 6451 MP

                                                                          1
                                                 IN THE HIGH COURT OF MADHYA PRADESH
                                                               AT INDORE
                                                                      BEFORE
                                                          HON'BLE SHRI JUSTICE ANIL VERMA
                                                                ON THE 29th OF APRIL, 2022

                                                         MISC. PETITION No. 1309 of 2020

                                            Between:-
                                            GEETA MOHITE D/O SHRI DINKAR RAO MOHITE ,
                                            AGED ABOUT 46 YEARS, OCCUPATION: SERVICE
                                            R/O: SUB-SECTOR, PHUL-GAVDI, SARDARPUR,
                                            DISTT. DHAR (MADHYA PRADESH)

                                                                                                           .....PETITIONER
                                            (BY SHRI Harshwardhan Sharma Adv.)

                                            AND

                                            JAYSHREE MELANI W/O RAJKUMAR MELANI ,
                                            AGED ABOUT 48 YEARS, OCCUPATION: BUSINESS
                                            R/o: 155, GANDHI NAGAR, INDORE (MADHYA
                                            PRADESH)

                                                                                                         .....RESPONDENT
                                            (None for the respondent, despite notice has been served through publication
                                            in the local circulated newspaper)

                                         This petition coming on for orders this day, the court passed the following:
                                         Counsel for the petitioner heard finally.
                                                                           ORDER

1/ Petitioner has filed this petition under Article 227 of the Constitution of India being aggrieved by the impugned order dated 6.2.2020 passed by the 3rd Civil Judge Class-1, Depalpur in Civil Suit No.2A/2013, whereby an application under Order 7 Rule 14(3) read with Section 151 of CPC has been dismissed.

2/ The facts in brief are that petitioner/plaintiff has filed a civil suit for possession, mesne profit and issuing permanent injunction against the respondent/defendant before the trial Court. At the stage of defendant's evidence, plaintiff filed an application under Order 7 Rule 14(3) read with Section 151 of CPC. After hearing both the parties trial Court has rejected the same. Therefore, this petition has been filed before this Court.

3/ Learned counsel for the petitioner contended that the court below has erred in taking the document on record which is necessary for adjudication of the Signature Not Verified SAN

matter. The said document i.e. registered sale deed has direct nexus with the suit Digitally signed by TRILOK SINGH SAVNER Date: 2022.04.30 10:40:16 IST property. He submits that the said document was not available at the initial stage of

the suit but it was available later on, therefore, trial Court has committed an error in not considering the legal aspect. Hence, he prays that the impugned order be set aside.

4/ No one has appeared on behalf of the respondent/defendant after service

of the notice.

5/ Counsel for the petitioner heard at length and also perused the documents filed by him.

6/ After perusal of the record it appears that although petitioner has filed an application under Order 7 Rule 14(3) read with Section 151 of CPC at the stage of defendant's evidence, but the document i.e. copy of the sale deed is necessary for the proper adjudication of the dispute between both the parties. It was also mentioned that the aforesaid document was not available at the initial stage of the civil suit and later on during the search it was found and thereafter immediately it was filed before the trial Court along with the aforesaid application. The factum of the same was supported by affidavit of the plaintiff. Defendant did not file any counter affidavit in rebuttal.

7/ The coordinate Bench of this Court in the case of Smt. Kalpana Devi Bhatjiwale and others vide order dated 25.4.2016 passed in WP No.6463/2013 has held that:-

"In view of the law laid down by the Supreme Court in the case of (1994) 4 SCC 659 (Billa Jagon Mohan Reddy Vs. Billa Sanjeeva Reddy), the impugned order passed by the trial Court suffers from error apparent on the face of the record. It is accordingly quashed. Taking into account the delay in filing the application, the same is allowed subject to payment of cost of Rs.2,500/-. The aforesaid amount shall be deposited by the petitioners before the trial Court within a period of two weeks from the date of receipt of certified copy of this order and shall be payable to the respondents."

8/ The coordinate Bench of this Court in the case of Ramchandra Vs. Prem Bai and others reported in 1999(2) MPLJ 499 has held that:-

"7. Learned counsel for the petitioner then placed reliance upon the Signature Not Verified SAN judgment in the case of Billa Jagan Mohan Reddy and another Vs. Billa Digitally signed by TRILOK SINGH Sanjeeva Reddy and others, reported in (1994) SCC 659 and submitted that condonation of delay in filing documents need not be as rigorous SAVNER Date: 2022.04.30 10:40:16 IST

as required under Section 5 of Limitation Act, and it is held that even at the delayed stage refusal by trial Court is an error. Learned counsel then placed reliance upon the judgment in the case of Puny Vs. Shankar, reported in 1961 MPLJ Note 185 = 1960 JLJ 1184, and submitted that this is the duty of the Court to take further evidence suo motu, if evidence is necessary for just decision of the case."

9/ In the light of the aforesaid judgment, it appears that trial Court has not considered the legal aspects. Therefore, the impugned order passed by the trial Court is erroneous and also bad in law and it deserves to be set aside.

10/ Resultantly, this miscellaneous petition is allowed and the impugned order dated 6.2.2020 passed by the trial Court is hereby set aside and the application under Order 7 Rule 14(3) read with Section 151 of CPC filed by the petitioner is hereby allowed and the trial Court is directed to take the concerned document on record and also provide sufficient opportunity to the petitioner to prove the document by adducing evidence. Same opportunity be also provided to the defendant.

C.C. as per rules.

(ANIL VERMA) JUDGE trilok

Signature Not Verified SAN

Digitally signed by TRILOK SINGH SAVNER Date: 2022.04.30 10:40:16 IST