Madhya Pradesh High Court
Hrnarayan vs Dinesh Kumar on 25 November, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 25th OF NOVEMBER, 2022
MISC. APPEAL No. 2116 of 2020
BETWEEN:-
HRNARAYAN S/O GOKUL PRASAD VISHNOI,
AGED ABOUT 61 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE KHAMLAY TEHSIL
KHIRKIYA DISTT. HARDA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI AVINASH ZARGAR, ADVOCATE)
AND
1. DINESH KUMAR S/O CHAMPALAL JI SONI,
AGED ABOUT 47 YEARS, GADIPURA MOHALLA
WARD NO.7 HARDA (MADHYA PRADESH)
2. RADHAMOHAN S/O RAMBHAROS VISHNOI,
AGED ABOUT 42 YEARS, VILLAGE KHAMLAY
TAH. KHIRKIYA (MADHYA PRADESH)
3. STATE OF M.P. THR. COLLECTOR DISTT.
HARDA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANIKANT SHARMA, ADVOCATE FOR RESPONDENTS
NO.1 AND 2)
(BY SHRI SOURABH SONI, PANEL LAWYER FOR STATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This Miscellaneous Appeal is filed by the defendant No.1 being aggrieved
of judgment dated 25.02.2020 passed by learned District Judge, Harda in RCA
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No.24/2019 allowing an application under Order 6 rule 17 read with Section 151
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Date: 2022.11.28 18:55:11 IST
CPC and another application under Order 41 Rule 27 CPC taking a Will on
record.
Shri Avinash Zargar submits that in cross-examination plaintiff had
admitted knowledge of the Will. This fact is corroborated from Annexure P-7
which is the application under Order 41 Rule 27 read with Section 151 CPC as
was filed by the plaintiff/appellant before the Appellate Court. He had admitted
that date of Will is 24.10.2009, he had filed a Revenue Case No.02-A/06-year
2010-2011 in which orders were passed on 15.03.2011 and on the basis of Will
mutation was carried out in favour of the plaintiff/appellant.
Thus, it is submitted that plaintiff/appellant had knowledge of the Will at
the time of filing of the suit which was filed in the year 2017, it is not a
subsequent event and this application is not based on a document which was
not within the knowledge of the plaintiff/appellant.
Similarly, it is pointed out by Shri Avinash Zargar that application under
Order 6 Rule 17 is not only cryptic but no reason has been assigned for
converting a suit for possession into one of declaration of title and possession.
All the facts were within the knowledge of the plaintiff and a traditional alibi of
counsel being responsible for not producing the documents as were filed by the
plaintiff has been taken in the application which in the absence of the affidavit of
the counsel or in absence of disciplinary proceedings being undertaken by the
plaintiff against the said counsel before the State Bar Council is not
maintainable.
Shri Manikant Sharma, reading provisions contained in Order 41 Rule 27
(1)(AA) submits that plaintiff had exercised due diligence to produce the Will
before the Trial Court but could not produce it and, therefore, his case will fall
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within Clause AA of Order 41 Rule 27(1) of CPC.
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.28 18:55:11 IST
After hearing learned counsel for the parties and going through the
record, it is evident that there was no pleading in regard to the Will in the suit. It
is admitted fact as is evident from Annexure P-7 to the present appeal that
plaintiff had knowledge of Will and had obtained mutation from the Revenue
Authorities, Khirkiya on 15.03.2011. Thus, if he was a beneficiary of the Will
then this description should have been mentioned in the suit itself. This would
have been mentioned in the suit then filing of document could have been
allowed by the Appellate Court for the reason of inadvertence or over site
whatever may be the cause. There is no justification for not mentioning the fact
of plaintiff claiming title on the basis of a Will which was very much within his
knowledge. Secondly, it is submitted that Will was executed by Smt. Mitthu Bai
and Smt. Ratan bai as is mentioned in para 3 of the application under Order 41
Rule 27 read with 151 CPC as was filed by the plaintiff Dinesh Kumar in Civil
Appeal No.24-A/2019.
It is pointed out that one of the executants of the Will is still alive i.e.
Smt. Ratan Bai. Therefore, Will has yet not become operational being a joint
Will. Learned first Appellate Court has passed impugned order in a mechanical
manner without application of mind. It has not adverted to proviso below Order
6 Rule 17 CPC which provides for not accepting an application for amendment
after commencement of the trial and though it is true that such application could
have been allowed at the appellate stage but for the cogent reasons and for the
cause of actions which may accrue after the filing of the suit or after decision in
the suit.
When it is admitted by the plaintiff himself that Will is of the year 2009,
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he acted upon that Will he presented it before the Tehsildar and obtained
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mutation in March, 2011 then both Will and its contents were within the
Date: 2022.11.28 18:55:11 IST
knowledge of the plaintiff and for the fault of the plaintiff to not to plead such
specific material in his pleadings, he could not take advantage of his own
mistakes and seek amendment. Similarly, plaintiff cannot seek advantage of his
own mistakes in not producing a document which was within his knowledge on
an alibi that it was given to the counsel for the reasons elaborated by Shri
Avinash Zargar during his arguments.
Thus, impugned order being cryptic, having been passed without
application of mind deserves to be set aside and is quashed.
Appeal is allowed. Parties to be their own cost.
(VIVEK AGARWAL)
JUDGE
Tabish
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.28 18:55:11 IST
