Vijay Pandey vs Shri Shiv Singh (Shiv Narayan) ...
2022 Latest Caselaw 3231 MP

        HIGH COURT OF MADHYA PRADESH
1                                                            MP No.1433/2021

                               BEFORE
              HON'BLE SHRI JUSTICE ANIL VERMA

                     ON THE 8th OF MARCH, 2022

                MISC. PETITION No. 1433 of 2021

    Between:-
    VIJAY PANDEY S/O LATE SHRI SURAJPAL PANDEY , AGED
    ABOUT 63 YEARS, OCCUPATION: BUSINESS 57/1 BIYABANI
    MAIN ROAD, INDORE (MADHYA PRADESH)
                                                    .....PETITIONER
    (BY SHRI Vinay Saraf Senior Adv. With Shri Rizwan Khan Adv.)

    AND

    SHRI SHIV SINGH (SHIV NARAYAN) GAUD S/O SHRI
    SHANKAR SINGH GAUD OCCUPATION: BUSINESS 94,
    BIYABANI MAIN ROAD, INDORE (MADHYA PRADESH)
                                                 .....RESPONDENTS
    (BY SHRI T.K. Modi Adv.)
This miscellaneous coming on for orders this day, the court

passed the following:


         Both the parties are heard finally.


                               ORDER

1/ The petitioner has filed this miscellaneous petition under Article 227 of the Constitution of India being aggrieved by the impugned order dated 20.1.2020 and 6.3.2021, whereby petitioner's right to adduce evidence has been closed and his application under Order 47 Rule 1 of CPC has been dismissed.

2/ Brief facts of the case are that petitioner/plaintiff has filed a civil suit against the defendant, inter-alia, seeking specific performance of the contract dated 4.6.2015. The respondent/defendant had filed written statement before the learned trial Court. After framing the issues trial Court has fixed the case for plaintiff's evidence and petitioner/plaintiff had HIGH COURT OF MADHYA PRADESH

examined three witnesses. Petitioner moved an application dated 17.10.2019 to lead the evidence but by the impugned order dated 20.1.2020 trial Court has closed the plaintiff's evidence and case is fixed for defendant's evidence. On the next date trial Court has rejected his application under Order 18 Rule 17 of CPC and also dismissed his review petition under Order 47 Rule 1 of CPC. Hence petitioner has filed this petition before this Court.

3/ Learned counsel for the petitioner submits that petitioner had duly tendered the evidence affidavit of Shri Mridul Pandey (PW-4) dated 27.11.2019 and declared that petitioner will not examine any other witness after PW-4, but learned trial Court without considering the same vide order dated 20.1.2020 allowed the application filed by the respondent and closed the right of the petitioner to lead evidence. He further submits that trial Court has wrongly assumed that petitioner has obtained 20 opportunities for leading evidence, which is contrary to the record of the case. Trial Court without taking into consideration that petitioner has timely and duly filed the affidavit before the trial Court, has passed the impugned order in a very mechanical and arbitrary manner. No prejudice will be caused to the respondent if the said application is allowed and, therefore, he prays that both the impugned orders be set aside and petitioner be permitted to lead evidence of PW-4 before the trial Court.

4/ Per contra, learned counsel for the respondent opposes the prayer and prays for its rejection by supporting the impugned order passed by the court below. He has also placed reliance upon the judgment of the Apex Court in the case of Salem Advocate Bar Association, T.N. Vs. Union of India reported in (2003) 1 SCC 49, wherein it has been held that:-

"21. We find that in the Code of Civil Procedure, 1908, a provision similar to Rule 17-A did not exist. This HIGH COURT OF MADHYA PRADESH

provision, as already noted, was inserted in 1976. The effect of the deletion of this provision in 2002 is merely to restore status quo ante, that is to say, the position which existed prior to the insertion of Rule 17-A in 1976. The remedy, if any, that was available to a litigant with regard to adducing additional evidence prior to 1976 would be available now and no more. It is quite evident that Rule 17-A has been deleted with a view that unnecessarily applications are not filed primarily with a view to prolong the trial."

5/ Learned counsel for both the parties heard at length and perused all the relevant documents filed by the parties before this Court.

6/ After perusal of the impugned order passed by the court below it reveals that petitioner has filed his civil suit before the trial Court in the year 2016 and the case was first time fixed for plaintiff's evidence on 11.11.2016. Trial Court has dismissed the petition by stating that more than 20 opportunities have been given to the petitioner/plaintiff to adduce his evidence. Counsel for the petitioner contended that it is a wrong assumption of the trial Court and also contrary to the law. However, more than 12 opportunities have been given to the petitioner to adduce the evidence. Petitioner did not file any witness list before the trial Court, therefore, some negligence of the petitioner appears from the record but petitioner has filed an affidavit of witness Mridul Pandey before the trial Court. Therefore, it also reflects that petitioner is eager to examine the said witness.

7/ The Hon'ble Apex Court in the case of Ashok Kumar Kalra Vs. Wing CDR. Surendra Agnihotri and others reported in (2020) 2 SCC 394 has held as under:-

"50. It is well settled that procedural rules should not be interpreted so as to defeat justice, rather than furthering it. This is because procedural law is not meant to serve as a tyrant against justice, but to act as a lubricant in its administration. Thus, when courts HIGH COURT OF MADHYA PRADESH

set out to do justice, they should not lose sight of the end goal amidst technicalities. In some cases, this means that rules that have traditionally been treated as mandatory, may be moulded so that their object and substantive justice is not obstructed. It would be apposite to remember that equity and justice should be the foremost considerations while construing procedural rules, without nullifying the object of the legislature in totality. Thus, rules under the Limitation Act which may allow for filing of a belated counterclaim up to a long period of time, should not be used to defeat the ends of justice."

8/ Hence, the impugned orders dated 20.1.2020 and 6.3.2021 are set aside and this miscellaneous petition is allowed by directing that the trial Court shall give one last opportunity to the petitioner to examine its witness Mridul Pandey on any fixed date, subject to payment of cost of Rs.7,000/- by the petitioner to the respondent on the next date before the trial Court. It is made clear that if petitioner fails to examine the said witness on the fixed date given by the trial Court, then no further adjournment shall be granted to the petitioner. Parties are directed to appear before the trial Court on 31.3.2022.

9/ With the aforesaid directions, this miscellaneous petition stands disposed off.

C.C. as per rules.

(Anil Verma) Judge trilok/-

Digitally signed by TRILOK SINGH SAVNER Date: 2022.03.08 19:42:34 +05'30'