Madhya Pradesh High Court

Paraschand vs Rao Rajendra Singh on 6 July, 2023

Author: Vijay Kumar Shukla

1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 6 th OF JULY, 2023
MISC. PETITION No. 5655 of 2022

BETWEEN:-
1. PARASCHAND S/O BHERULAL, AGED ABOUT 69
YEAR S, OCCUPATION: BUSINESS R/O VILLAGE
TANODIYA, TEHSIL AGAR, DISTRICT AGAR
MALWA (SHAJAPUR) (MADHYA PRADESH)

2. MAHENDRA KUMAR S/O BHERULAL, AGED
ABOUT 54 YEARS, OCCUPATION: BUSINESS R/O
VILLAGE TANODIYA TEHSIL AGAR DIST. AGAR
MALWA (MADHYA PRADESH)

3. RAJENDRA KUMAR S/O BHERULAL, AGED ABOUT
48 YEARS, OCCUPATION: BUSINESS R/O VILLAGE
TANODIYA TEHSIL AGAR DIST. AGAR MALWA
(MADHYA PRADESH)

4. AJEET KUMAR S/O BHERULAL, AGED ABOUT 46
YEAR S, OCCUPATION: BUSINESS R/O VILLAGE
TANODIYA TEHSIL AGAR DIST. AGAR MALWA
(MADHYA PRADESH)

5. SANJAY KUMAR S/O BHERULAL, AGED ABOUT 42
YEAR S, OCCUPATION: BUSINESS R/O VILLAGE
TANODIYA TEHSIL AGAR DIST. AGAR MALWA
(MADHYA PRADESH)

.....PETITIONERS
(BY SHRI VIJAY PRABHAKAR SARAF - ADVOCATE)

AND
1. RAO RAJENDRA SINGH S/O RAO SAJJAN SINGH,
AGED ABOUT 69 YEARS, OCCUPATION: NIL R/O
VILLAGE TANODIYA, TEHSIL AGAR, DISTRICT
AGAR MALWA (MADHYA PRADESH)

2. THAKUR NARENDRA SINGH S/O RAO SAJJAN
SINGH, AGED ABOUT 67 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE TANODIYA TEHSIL
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 07-07-2023
18:31:05
2
AGAR DIST. AGAR MALWA (MADHYA PRADESH)

3. THAKUR DEVENDRA SINGH S/O RAO SAJJAN
SINGH, AGED ABOUT 65 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE TANODIYA TEHSIL
AGAR DIST. AGAR MALWA (MADHYA PRADESH)

4. SMT. MOTI KUNWAR D/O RAO SAJJAN SINGH,
AGED ABOUT 80 YEARS, OCCUPATION:
HOUSEHOLD R/O RAJ BHAWAN H.NO. 10 CIVIL
LINE KOTA (RAJASTHAN)

5. SMT. KRISHNA KUMARI D/O RAO SAJJAN SINGH,
AGED ABOUT 79 YEARS, OCCUPATION:
HOUSEHOLD R/O IRRIGATION COLONY JIRAPUR
DIST. RAJGARH (MADHYA PRADESH)

6. SMT. SNEHLATA D/O RAO SAJJAN SINGH, AGED
ABOUT 77 YEARS, OCCUPATION: HOUSEHOLD R/O
POST GHODA SARWAYA MEHMDABAD DISTT.
KHEDA (GUJARAT)

7. SMT. PADMINI KUMRI D/O RAO SAJJAN SINGH,
AGED ABOUT 72 YEARS, R/O GUMANPURA
INFRONT OF OLD LIQUOR THEKA KOTA
(RAJASTHAN)

8. THE STATE OF MADHYA PRADESH COLLECTOR
DISTT. AGAR MALWA (MADHYA PRADESH)

9. DHARAMCHAND S/O BASANTILAL JAIN, AGED
ABOUT 52 YEARS, OCCUPATION: BUSINESS R/O
BUS STAND CHOMAHALA DIST. JHALAWAD
(RAJASTHAN)

10. RAMESHCHANDRA S/O CHAMPALAL, AGED
ABOUT 60 YEARS, OCCUPATION: BUSINESS R/O
KOTA (RAJASTHAN)

11. DEVILAL S/O CHAMPALAL, AGED ABOUT 57
YEAR S , OCCUPATION: BUSINESS R/O BAROD
TEHSIL BAROD DISTT. AGAR MALWA (MADHYA
PRADESH)

12. OMPRAKASH S/O CHAMPALAL, AGED ABOUT 53
YEAR S , OCCUPATION: BUSINESS R/O BAROD
TEHSIL BAROD DISTT. AGAR MALWA (MADHYA
PRADESH)

.....RESPONDENTS
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 07-07-2023
18:31:05
3
(BY SHRI ABHAY CHAND JAIN - ADVOCATE FOR THE RESPONDENT
NOS.1-7.
MS. BHARTI LAKKAD - G.A. FOR THE RESPONDENT NO.8)

T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER

The present petition is filed under Article 227 of the Constitution of India being aggrieved by the order dated 14/11/2022 passed by Civil Judge, Senior Division, Agar, Judicial District Shajapur (M.P.) in case No.RCSA/200019/2014. The Trial Court vide order dated 14/11/2022 exhibited the document which was not earlier filed by the plaintiff and on earlier occasion the application under Order VII Rule XIV CPC was dismissed by the Trial Court but subsequently during the examination of the plaintiff the same document was adduced and the Trial Court despite objection in this regard, marked the aforesaid document as exhibit in the statement of PW-1, Rao Rajendra Singh.

2. The facts of the case are that the respondent Nos.1-7 (original plaintiffs) filed a suit for declaration, possession and mense profit alleging the fact that the ancestral land belonging to the plaintiff is situated in village Tanodiya, admeasuring toal area 13 Bigha 11 Biswa. It was also alleged that earlier the disputed land was recorded in the name of Rao Raghunath Singh the ancestor of the plaintiffs, who was erstwhile Jagirdar of the village and was

free to lease out the land as per his wishes.

3. Counsel for the petitioner submits that the Trial Court has erred while permitting to exhibit the sale deed despite objection. Earlier the plaintiff filed an application under Order VII Rule XIV CPC for bringing the documents of certified copy of the sale deed, 2/11/1979 and other sale deed on record and the Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 07-07-2023 18:31:05

said application was rejected by the Trial Court and, therefore, the same could not have been subsequently exhibited in the statement of PW 1. He submits that as per Section 64 of the Indian Evidence Act, the petitioner had a right to object the admissibility of the said document which has been got exhibited during course of examination in chief of the plaintiff. In absence of any objection thereto admissibility of document cannot be questioned at a later stage as held in the case of Rakesh Kumar Sundrani & another Vs. Jagdish Prakash Angal & others reported in 2017 (1) MPLJ 448.

4. The respondents supports the impugned order and submits that the plaintiff can always be permitted to exhibit a document which is not taken on record merely to refresh his memory. He further submitted that under the provisions of Order VII Rule XIV (4) the word "plaintiff's witnesses" has been wrongly mentioned by the legislature instead of "defendant's witnesses". He has relied on para 37 of the judgment passed by the Apex Court in the case of Salem Advocate Bar Association Vs. Union of Indi a reported in AIR 2005 SC 3353. Para 36 and 37 of the said judgment reads as under:-

36. In the aforesaid Rule, it is evident that the words 'plaintiff's witnesses' have been mentioned as a result of mistake seems to have been committed by the Legislature. The words ought to be 'defendant's witnesses'. There is a similar provision in order VIII Rule 1A(4) which applies to a defendant. It reads as under:

"Nothing in this rule shall apply to documents-

(a) produced for the cross-examination of the plaintiff's witnesses, or

(b) handed over to a witness merely to refresh his memory.

37. Order VII relates to the production of documents by the plaintiff whereas Order VIII relates to production of documents by the defendant. Under Order VIII, Rule 1A(4) a document not produced by defendant can be confronted to Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 07-07-2023 18:31:05

the plaintiff's witness during cross-examination. Similarly, the plaintiff can also confront the defendant's witness with a document during cross-examination. By mistake, instead of "defendant's witnesses", the words "plaintiff's witnesses have been mentioned in Order VII Rule (4). To avoid any confusion, we direct that till the Legislature corrects the mistake, the words "plaintiff's witnesses" would be read as "defendant's witnesses" in Order VII, Rule 4. We, however, hope that the mistake would be expeditiously corrected by the Legislature.

5. There is no dispute to the law laid down by the Apex Court that a document which has not been taken on record can be got exhibited to refresh the memory of the witness. In the present case, upon perusal of the impugned order, it is noted that the Trial Court has recorded the objection of the petitioners/defendants that the aforesaid documents are not public documents and they cannot be exhibited. However, without deciding the objection raised by the petitioners, the document has been allowed to be exhibited in cross- examination of the plaintiffs evidence. The Trial Court ought to have first decided the objection of the petitioner that whether the aforesaid documents could have been exhibited as per provisions of Order VII Rule XIV CPC or not and whether the documents sought to be adduced in the evidence comes within the purview of public documents or not. It is informed by the parties that the case is fixed for defendants evidence.

6. In view of the aforesaid, it is directed that before proceeding further with the suit, the Trial Court shall first decide the objection raised by the petitioners in respect of exhibition of document and only after deciding the objection, the Trial Court shall proceed in the matter.

7. With the aforesaid, the petition is disposed off.

Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 07-07-2023 18:31:05

(VIJAY KUMAR SHUKLA) JUDGE Pramod

Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 07-07-2023 18:31:05