Ashok Kumar vs Rakesh Kumar
2022 Latest Caselaw 9800 MP

                                                                    1
                                               IN THE HIGH COURT OF MADHYA PRADESH
                                                            AT JABALPUR
                                                                BEFORE
                                         HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                            ON THE 18th OF JULY, 2022

                                                      MISC. PETITION No. 2886 of 2022

                                          Between:-
                                          ASHOK KUMAR S/O SHRI BUDDHU LAL SARAF ,
                                          AGED   ABOUT    57  YEARS, OCCUPATION:
                                          SHOPKEEPER MADIYA WARD BINA, TEHSIL-
                                          BINA, DISTRICT- SAGAR, M.P. (MADHYA
                                          PRADESH)

                                                                                                 .....PETITIONER
                                          (BY SHRI AJAY SEN - ADVOCATE)

                                          AND

                                  1.      RAKESH KUMAR S/O SHRI GULABCHAND
                                          SARAF , AGED ABOUT 48 YEARS, MADIYA
                                          WARD BINA, TEHSIL BINA, DISTRICT- SAGAR,
                                          M.P. (MADHYA PRADESH)

                                  2.      ANKIT KUMAR S/O LATE SANTOSH SARAF ,
                                          AGED ABOUT 20 YEARS, R/O MADIYA WARD
                                          BINA, TEHSIL BINA, DISTRICT SAGAR
                                          (MADHYA PRADESH)

                                                                                               .....RESPONDENTS
                                          (NONE FOR THE RESPONDENTS)

                                        This petition coming on for admission this day, th e court passed the
                                  following:
                                                                     ORDER

Heard on I.A.No.9163/2022, which is an application for stay. This petition has been filed under Article 227 of the Constitution of India assailing the order dated 25.06.2022 (Annexure P/3) as well as order dated Signature Not Verified SAN 30.06.2022 (Annexure P/6) passed in RCSA/300090/2013 by the Additional Digitally signed by VINAY KUMAR BURMAN Civil Judge to the Civil Judge Senior Division, Bina District Sagar whereby the Date: 2022.07.19 19:02:42 IST

application under Order 17 rule 1 of the CPC filed by the petitioner has been rejected.

Brief facts leading to filing of this petition are that the petitioner/plaintiff has filed a civil suit seeking the relief of declaration of title in respect of 1238 Sq. Ft. area out of Survey No.422/65 area 2475 Sq. Ft. situated at Veer Sawarkar Ward, Patwari Halka No. 51 Ra. Ni. Man Bina, Tehsil- Bina, District Sagar (M.P.). Relief of possession has also been sought in the plaint. Written statement was filed by the respondents and thereafter issues were framed. Matter was thereafter posted for plaintiff's evidence. The plaintiff prayed for adjournments on several dates to produce the witness but could not produce

the witness before the trial Court and finally the trial Court directed to produce the witness on 25.06.2022. On 25.06.2022, the petitioner filed an application under Order 17 rule 1 of CPC praying for short adjournment to produce the witness on the ground that the counsel for the petitioner is not well. After hearing both the parties, learned trial Court not only dismissed the application under Order 17 rule 1 of the CPC but also closed the right to produce plaintiff's evidence and the matter was fixed for recording of defendant's evidence. Again on 30.06.2022, the petitioner filed an application under Section 151 of CPC along with affidavit under Order 18 rule 4 of CPC and all the witnesses were present before the Court. However, the trial Court rejected the application under Section 151 of CPC. Being aggrieved by the order dated 25.06.2022, the present writ petition has been filed.

From perusal of the order dated 25.06.2022, it is seen that the suit is pending since 2013 and was fixed for the first time for recording of evidence of Signature Not Verified SAN

plaintiff's witness on 03.09.2014. Thereafter, on number of occasions, the Digitally signed by VINAY KUMAR BURMAN

matter was adjourned to produce plaintiff's evidence. Even cost was imposed Date: 2022.07.19 19:02:42 IST

but the witness could not be produced by the petitioner. Even in the application, the petitioner is unable to show any cogent reason seeking adjournment. The discretion to deal with the prayer for adjournment has been exercised by the trial Court on the sound principles of law.

Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution of India, can not be exercised to correct all errors of a judgment of a court acting within its limitation. It can be exercised where the orders are passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. In the instant case, the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution of India. In spite of having been granted time for number of occasions, the petitioner failed to produce the witness.[See: Jai Singh and others vs. M.C.D. and others (2010) 9 SCC 385 and Shalini Shyam Shetty Vs. Rajendra Shankar Patil (2010) 8 SCC 329].

In view of the preceding analysis, the writ petition fails and is hereby dismissed.

The trial Court is directed to proceed in accordance with law as expeditiously as possible.

(S. A. DHARMADHIKARI) JUDGE vinay*

Signature Not Verified SAN

Digitally signed by VINAY KUMAR BURMAN Date: 2022.07.19 19:02:42 IST