Madhya Pradesh High Court
Sushila Mishra vs Bhupendra Singh on 3 May, 2023
Author: Gurpal Singh Ahluwalia
1 M.P.NO.2052/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 3rd OF MAY, 2023
MISC. PETITION No. 2052 of 2023
BETWEEN:-
1. SUSHILA MISHRA W/O LATE SHRI
NEMIKA PRASAD MISHRA, AGED
ABOUT 64 YEARS, R/O GRAM
MOHANIYA TEH. KOTHAR DISTT.
SATNA M.P. (MADHYA PRADESH)
(LATE SHRI NEMIKA PRASAD
MISHRA THROUGH LRS.)
2. HEMANT KUMAR MISHRA S/O LATE
SHRI NEMIKA PRASAD MISHRA,
AGED ABOUT 35 YEARS, R/O GRAM
MOHANIYA TEHSIL KOTHAR,
DISTRICT SATNA (MADHYA
PRADESH) (LATE SHRI NEMIKA
PRASAD MISHRA THROUGH LRS)
3. SADHNA TIWARI D/O LATE SHRI
NEMIKA PRASAD MISHRA, AGED
ABOUT 41 YEARS, R/O GRAM
BAKCHERA, TEHSIL RAIPUR
KARCHULIYAN, DISTRICT REWA,
M.P. (LATE SHRI NEMIKA PRASAD
MISHRA THROUGH LRS)
4. SUMAN TIWARI D/O LATE SHRI
NEMIKA PRASAD MISHRA, AGED
ABOUT 37 YEARS, R/O GRAM
BAKCHERA, TEHSIL RAIPUR
KARCHULIYAN, DISTRICT REWA,
M.P. (LATE SHRI NEMIKA PRASAD
MISHRA THROUGH LRS)
2 M.P.NO.2052/2023
5. ANJANA MISHRA D/O LATE SHRI
NEMIKA PRASAD MISHRA, AGED
ABOUT 31 YEARS, R/O GRAM
MOHANIYA TEHSIL KOTHAR,
DISTRICT SATNA M.P. (LTE SHRI
NEMIKA PRASAD MISHRA
THROUGH LRS)
6. RAMBIHARI MISHRA S/O LATE
SHRI RAMLAKHAN MISHRA, AGED
ABOUT 55 YEARS, R/O GRAM
KATHWARIYA HAL, NAI BASTI,
DISTRICT SATNA (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI NITYANAND MISHRA - ADVOCATE )
AND
1. BHUPENDRA SINGH S/O LATE SHRI
VASHUDEV SINGH, AGED ABOUT 75
YEARS, R/O GRAM BIRTI POST HATI
TEH. RAGHU NAGAR DISTT. SATNA
(MADHYA PRADESH)
2. JANAKRAJ SINGH S/O LATE SHRI
VASHUDEV SINGH, AGED ABOUT 75
YEARS, R/O GRAM BIRTI POST HATI
TEH. RAGHU NAGAR DISTT. SATNA
(MADHYA PRADESH)
3. RAJBHAN SINGH S/O LATE SHRI
VASHUDEV SINGH, AGED ABOUT 60
YEARS, R/O GRAM BIRTI POST HATI
TEH. RAGHU NAGAR DISTT. SATNA
(MADHYA PRADESH)
4. SURENDRA SINGH S/O LATE SHRI
VASHUDEV SINGH, AGED ABOUT 60
3 M.P.NO.2052/2023
YEARS, R/O GRAM BIRTI POST HATI
TEH. RAGHU NAGAR DISTT. SATNA
(MADHYA PRADESH)
5. RAJBAHADUR SINGH S/O LATE SHRI
VEERDEV SINGH, AGED ABOUT 70
YEARS, R/O GRAM BIRTI POST HATI
TEH. RAGHU NAGAR DISTT. SATNA
(MADHYA PRADESH)
6. MADHAVINDRA SINGH S/O NOT
MENTION, AGED ABOUT 85 YEARS,
R/O GRAM BIRTI POST HATI TEH.
RAGHU NAGAR DISTT. SATNA
(MADHYA PRADESH)
7. DAANBAHADUR SINGH S/O JAIDEV
SINGH, AGED ABOUT 72 YEARS, R/O
GRAM BIRTI POST HATI TEH.
RAGHU NAGAR DISTT. SATNA
(MADHYA PRADESH)
8. MAHINDRA SINGH S/O LATE SHRI
JAIDEV SINGH, AGED ABOUT 68
YEARS, R/O GRAM BIRTI POST HATI
TEH. RAGHU NAGAR DISTT. SATNA
(MADHYA PRADESH)
9. RAMNIRANJAN MISHRA S/O
RAMSWAROOP MISHRA, AGED
ABOUT 76 YEARS
10. RAMSUKH MISHRA S/O
RAMSWAROOP MISHRA, AGED
ABOUT 76 YEARS
4 M.P.NO.2052/2023
11. LATE SHRI RAMROOP MISHRA S/O
RAMDAS MISHRA THROUGH LRS
a) SHIVMANGAL PRASAD MISHRA
S/O LATE SHRI RAMROOP MISHRA,
AGED ABOUT 70 YEARS, R/O GRAM
KATHWARIYA TEHSIL KOTHI
DISTRICT SATNA (MADHYA
PRADESH)
b) MAHESH PRASAD MISHRA S/O
LATE SHRI RAMROOP MISHRA,
AGED ABOUT 66 YEARS, R/O GRAM
KATHWARIYA TEHSIL KOTHI
DISTRICT SATNA (MADHYA
PRADESH)
c) BRIJKISHOR MISHRA S/O LATE
SHRI RAMROOP MISHRA, AGED
ABOUT 57 YEARS, R/O GRAM
KATHWARIYA TEHSIL KOTHI
DISTRICT SATNA (MADHYA
PRADESH)
d) PESUNIYA D/O LATE SHRI
RAMROOP MISHRA W/O
RAJENDRA PRASAD TIWARI, AGED
ABOUT 64 YEARS, R/O GRAM
KHADORI TEHSIL BIRSINGHPUR
DISTRICT SATNA (MADHYA
PRADESH)
BERANIYA D/O LATE SHRI
e) RAMROOP MISHRA, AGED 69
YEARS, W/O RAJENDRA PRASAD
TIWARI, R/O GRAM AMILPUR,
THE.BIRSINGHPUR, DISTT.SATNA,
M.P.
12. BRIJESH TIWARI S/O LATE SHIR
RAMUDAR TIWARI AGED 53 YEARS
5 M.P.NO.2052/2023
13. HANSRAJ TIWARI S/O LATE SHRI
RAMUDAR TIWARI, AGED 42
YEARS
14. RAJESH TIWARI S/O LATE SHRI
RAMUDAR TIWARI, AGED 36
YEARS
(ALL R/O GRAM AMILPUR,
THE.JAITWARA, DISTT.SATNA,
M.P.)
15. SMT.KAUSHLYA D/O LATE SHIR
RAMJAS AGED 75 R/O GRAM
KATWARIYA POST HATI,
THE.RAGHUNAGAR DISTT. SATNA,
M.P.
16. LATE SHRI RAMSHARAN S/O
RAMKRIPAL R/O GRAM
MOHANIYA POST TEHAI
THE.KOTHAR DISTT.SATNA M.P.
a)
RAMDULARI MISHRA W/O LATE
SHRI RAMSHARAN AGED 70 YEARS
R/O GRAM MOHANIYA POST
TEHAI THE.KOTHAR DISTT. SATNA
M.P.
b) HARISHANKAR MISHRA S/O LATE
SHRI RAMSHARAN AGED 53 YEARS
R/O GRAM MOHANIYA POST
TEHAI THE.KOTHAR DISTT.SATNA,
M.P.
c) PANKAJ MISHRA S/O LATE SHRI
RAMSHARAN, AGED ABOUT 35
YEARS, R/O GRAM MOHANIYA
POST TEHAI TEHSIL KOTHAR
DISTRICT SATNA (MADHYA
PRADESH)
6 M.P.NO.2052/2023
d) DWARIKA PRASAD MISHRA S/O
LATE SHRI RAMSHARAN, AGED
ABOUT 45 YEARS, R/O GRAM
MOHANIYA POST TEHAI TEHSIL
KOTHAR DISTRICT SATNA
(MADHYA PRADESH)
17. RAMPAL MISHRA S/O LATE SHRI
CHUNNILAL MISHRA, AGED
ABOUT 73 YEARS, R/O GRAM
KATWARIYA POST HATI, TEHSIL
RAGHUNAGAR DISTRICT SATNA
(MADHYA PRADESH)
18. RAMSUNDAR S/O LATE SHRI
CHUNNILAL MISHRA, AGED
ABOUT 68 YEARS, OCCUPATION:
GOVERNMENT EMPLOYEE R/O
DEVIJI ROAD, HOUSING BOARD
MAIHAR DISTRICT SATNA
(MADHYA PRADESH)
19. RAMPRAKASH MISHRA S/O LATE
SHRI CHUNNILAL MISHRA, AGED
ABOUT 60 YEARS, OCCUPATION:
FARMER R/O GRAM KATWARIYA
POST HATI, TEHSIL RAGHUNAGAR
DISTRICT SATNA (MADHYA
PRADESH)
20. STATE OF MADHYA PRADESH
THROUGH COLLECTOR SATNA
(MADHYA PRADESH)
.....RESPONDENTS
(BY MS.SHANTI TIWARI - PANEL LAWYER FOR THE RESPONDENT/STATE )
This petition coming on for admission this day, the court passed the
following:
7 M.P.NO.2052/2023
ORDER
This petition, under Article 227 of the Constitution of India has
been filed against the order dated 14.03.2023 passed by 4th Civil Judge
Class-II, Satna in Civil Suit No. 25-A/2015 (Old No.22-A/2015).
2. The facts necessary for disposal of the present petition, in short are
that the petitioners have filed a civil suit for declaration of title as well as
for declaration that the mutation is null and void. The suit was filed on
17.01.2013.
3. It is submitted by the counsel for the petitioners that although the
affidavit of the plaintiffs and their witnesses have been filed under Order
18 Rule 4 of the C.P.C. but the plaintiffs' evidence is not over. The
plaintiffs filed an application under Order 26 Rule 10 of C.P.C. read with
Section 45 and 47 of the Evidence Act for sending the signatures of
plaintiffs Nemika and Rambihari to the expert for comparison with their
undisputed signatures.
4. It is the case of the petitioners that petitioners had never
participated in Revenue Case No. 83A/27/2001-02, but by order dated
25.07.2002, it was held that the plaintiffs have signed the proceedings of
the Revenue Authority. It is submitted that in fact the signatures in the
proceedings, which were taken by the Revenue Court in Case No. 83-
A/27/2001-02, are forged and accordingly, it was prayed that the
disputed signatures of the plaintiffs on the written statement as well as on
the public notice of the Revenue Proceedings be sent to the experts for
their comparison with their admitted signatures.
5. The trial Court held that the suit was filed in 2013. The case is
pending for recording of plaintiffs' evidence but the witnesses are not
8 M.P.NO.2052/2023
turning up. 10 long years have passed but still the case is at the stage of
plaintiffs' evidence. Therefore, the application has been filed with a
solitary intention to delay the proceedings and accordingly, the
application was rejected.
6. Challenging the order passed by the Court below, it is submitted by
the counsel for the petitioners that the application for sending the
signatures to the handwriting expert can be filed even at the fag end of
the trial. The law is not harsh so as to shut the doors of justice to the
parties and to buttress his contention the counsel for the petitioners has
relied upon a judgment passed by the Co-ordinate Bench of this Court in
the case of Asharam and Another Vs. Suraj Singh Baghel, reported in
ILR (2011) M.P. 684.
7. Heard the learned counsel for the petitioners.
8. It is true that an application under Section 45 of the Evidence Act
can be filed at the fag end of the trial but that cannot be used as a tool for
delaying the disposal of the suit. In the present case the suit was filed in
the year 2013. From the impugned order it is clear that the case was fixed
for the first time for recording of plaintiffs' evidence on 21.10.2016.
9. It is also clear that the affidavits of the witnesses under Order 18
Rule 4 of C.P.C.were filed sometime in the year 2016 but still the
plaintiffs' evidence has not been recorded. The petitioners have not filed
the copies of the ordersheets of trial court to show that they were
prosecuting the suit vigilantly. The proceedings dated 25.07.2002 of the
revenue authorities were well within the knowledge of the petitioners.
10. More than 6-1/2 years have passed from the date of affidavit of suit
for recording plaintiffs' evidence but the counsel for the petitioners could
9 M.P.NO.2052/2023
not point out any reasonable reason for not closing their case within a
reasonable time. If a suit has been filed, then the litigant must contest the
same sincerely and vigilantly. If the solitary intention of the litigant to
somehow delay the proceedings on one pretext or the other, then it
cannot be said that the application can be used as a tool for delaying the
suit.
11. It is true that the application can be filed even at the fag end of the
suit but the burden is on the plaintiff to prove that despite due diligence
he could not file the application at an early stage.
12. Under these circumstances, this Court is of the considered opinion
that the trial court did not commit any jurisdictional error in dismissing
the application.
13. Accordingly, the petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
TG/-
TRUPTI GUNJAL
2023.05.08
19:06:49 +05'30'
