Madhya Pradesh High Court
Yogendra Puri vs Smt. Sunitra Bai W/O Balram ... on 20 November, 2023
Author: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 20 th OF NOVEMBER, 2023
MISC. PETITION No. 2181 of 2019
BETWEEN:-
1. YOGENDRA PURI S/O SHRI DWARIKA PURI
GOSWAMI, AGED ABOUT 42 YEARS,
OCCUPATION: AGRUCULTURE GRAM TEHSIL
TENDUKHEDA (MADHYA PRADESH)
2. SMT KALPANA GOSWAMI W/O SHRI YOGENDRA
PURI GOSWAMI, AGED ABOUT 40 YEARS,
RESIDENT OF GRAM SARRA TEHSIL
TENDUKHEDA DISTT NARSINGHPUR MP
(MADHYA PRADESH)
.....PETITIONERS
(BY MS. SANJANA SAHNI - ADVOCATE)
AND
1. SMT. SUNITRA BAI W/O BALRAM GOSWAMI
DEAD THR LRS DHEERNDRAPURI S/O
JAGESHWARPURI, AGED ABOUT 30 YEARS, R/O
HOUSE NO 389 NARENDRANAGAR (MADHYA
PRADESH)
2. GYANENDRAPURI S/O SHRI DWARKAPURI, AGED
ABOUT 45 YEARS, RESIDENT OF GRAM SARRA
TEHSIL TENDUKHEDA DISTT NARSINGHPUR MP
(MADHYA PRADESH)
3. MAHENDRA KUMAR S/O BALRAM GOSWAMI,
AGED ABOUT 53 YEARS, RESIDENT OF HOUSE NO
389 NEHRU NAGAR BHOPAL MP (MADHYA
PRADESH)
4. SMT GAYATRI GOSWAMI D/O SHRI BALRAM
GOSWAMI, AGED ABOUT 50 YEARS, RESIDENT OF
HOUSE NO 389 NEHRU NAGAR BHOPAL MP
(MADHYA PRADESH)
5. SMT KAMLESH GIRI D/O SHRI BALRAM
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 11/24/2023
4:11:01 PM
2
GOSWAMI, AGED ABOUT 48 YEARS, RESIDENT OF
HOUSE NO 389 NARENDRA NAGAR BHOPAL MP
(MADHYA PRADESH)
6. VIMLESH GOSWAMI D/O SHRI BALRAM
GOSWAMI, AGED ABOUT 46 YEARS, RESIDENT OF
HOUSE NO 389 NEHRU NAGAR BHOPAL MP
(MADHYA PRADESH)
7. SMT GEETA GOSWAMI D/O SHRI BALRAM
GOSWAMI, AGED ABOUT 41 YEARS, RESIDENT OF
HOUSE NO 389 NEHRU NAGAR BHOPAL MP
(MADHYA PRADESH)
8. BALRAM GOSWAMI S/O LATE BABU PRASAD
GOSWAMI, AGED ABOUT 76 YEARS, RESIDENT OF
HOUSE NO 389NEHRU NAGAR BHOPAL MP
(MADHYA PRADESH)
9. STATE OF MADHYA PRADESH THROUGH
COLLECTOR DISTT NARSINGHPUR MP (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI ADITYA NARAYAN SHARMA - ADVOCATE)
This petition coming on for adnussuib this day, th e court passed the
following:
ORDER
This is a petition by the petitioner assailing the order dated 2.4.2019
(Annexure P-9) passed III Additional District Judge, Gadarwara, District
Narsinghpur by in Civil Suit No. 13-A/2014.
2. Counsel for the petitioners/defendants submits that original plaintiff
Sumitra Bai filed a suit before the Trial Court for declaration of title as regards
the property which are detailed in paragraph 1 of the plaint. The present
petitioners/defendants entered appearance and also filed a written statement and
submitted that the original plaintiff had executed a power of attorney on
26.10.2012 voluntarily in favour of the defendant No. 1 by which he was
authorized to alienate the property in question. In exercise of such powers
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 11/24/2023
4:11:01 PM
conferred on the basis of power of attorney, Defendant No. 1 executed the sale-
deed of the property in question on 1.11.2012. The Court below after framing
the issue proceeded with the trial of the matter and the evidence of the plaintiff
was recorded. The case was then fixed for evidence of the defendants. The
defendants at that stage moved three applications, i.e., an application under
Order 18 Rule 17, C.P.C, an application under order 13 Rule 10 C.P.C and an
application under Order 16 Rule 2 C.P.C. All three applications have been
rejected by a composite impugned order dated 2.4.2019 which is being assailed
in the present petition.
3. It is contended by the counsel that in the present case vide order
dated 19.11.2018 the Trial Court allowed an application filed by the present
petitioners/defendants under Order 8 Rule 1A (3), C.P.C. It is contended by
the counsel that while filing the said application under Order 8 Rule 1A (3) CPC
it was submitted by the present petitioners/defendants that an order was passed
by the Tahsildar, Tendukheda on 22.7.2013 on an application filed for mutation
in the name of Shri Dheerendra Puri and accordingly entire records pertaining to
the said order was allowed to be taken on record by the Trial Court vide order
dated 19.11.2018 which has been brought on record along with I.A No.
10141/2023 in the present case. It is thus contended by the counsel that once
the Trial Court allowed the said application and the aforesaid records were
allowed to be taken on record, all subsequent three applications being
consequential ought to have been allowed as well. The counsel submits that the
application filed under order 18 Rule 17 C.P.C could not have been rejected as
the Court was required to appreciate that Shri Dheerendra Puri was required to
be examined in view of subsequent interlocutory order dated 19.11.2018.
Signature Not Verified
Counsel in support of her contention has placed reliance on an order dated
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 11/24/2023
4:11:01 PM
16.11.2015 passed this Court in W.P. No. 6371/2014 - Sunil Kumar Garg v.
Sanjay Kumar Gupta. The counsel for petitioner has also placed reliance on
an order dated 9.7.2014 passed by this Court in W.P. No. 1069/2014 Kamla
Devi v. Smt. Sunita Devi and others and has submitted that as the application
was bona fide and the proposed evidence could have assisted the Court to
properly adjudicate the matter, therefore, the recall of witness was imperative.
The counsel for the petitioner has also placed reliance on an order passed by
this Court on 27th February, 2023 passed in M.P. No. 6463/2022 -
Hasananand v. Vinod and another and submitted that the application filed by
the petitioner under order 16 Rule 2 C.P.C (the provisions were incorrectly
quoted) ought to have been allowed, inasmuch as, the Dy. Registrar
Shahjahanbad, Bhopal was required to be examined as witness, inasmuch as,
the power of attorney was registered on 26.10.2012 by the Deputy Registrar
and, therefore, the said application also could not have been rejected by the
Trial Court. Thus, the counsel for the petitioner in nutshell submits that once
the Trial Court itself allowed the application filed under Order 8 Rule 1A (3)
CPC on 19.11.2002018, all aforesaid three interlocutory applications were also
required to be allowed by the Trial Court. Accordingly submits that the
impugned order deserves to be set aside.
4. Per contra counsel for the respondents submits that the order
impugned requires no interference, inasmuch as, just in order to drag the
proceedings unnecessarily applications were filed. The Trial Court while
dealing with each applications came to a categorical conclusion that the
applications did not satisfy the requirement of law and Trial Court having found
the applications to be misconceived rejected the same. It is also contended by
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 11/24/2023
4:11:01 PM
the counsel that the Trial Court has also taken into consideration the aspect that
the suit in question is pending since 2012 and after lapse of 7 years, the
aforesaid applications were filed by the defendants and, therefore, submits that
no interference with the order impugned is warranted.
5. Parties have not pressed or argued any other point.
6. In order to deal with the controversy, the order passed on all the three
applications are being dealt with herein.
7. The petitioners/defendants filed an application under Order 18 Rule
17 C.P.C read with Section 151 C.P.C. In the application under Order 18 Rule
17 (Annexure P-3), it was the contention of the defendants that the documents
pertaining to Revenue Case No. 21-A-6 (A) Year 2012-13 of the Court of
Tahsildar, Tendukheda have already been taken on record by an order dated
19.11.2018. The said documents pertained to plaintiffs' witness Dheerendra
Puri and, therefore, plaintiffs' witness Dheerendra Puri is required to be
recalled. To deal with the order passed by the Trial Court on application under
Order 18 Rule 17 C.P.C it is first important to consider the provisions of Order
18 Rule 17 C.P.C which is reproduced herein below:
17. Court may recall and examine witness.-The Court
may at any stage of a suit recall any witness who has
been examined and may (subject to the law of
evidence for the time being in force) put such
questions to him as the Court thinks fit.
8. A perusal of the provisions of Order 18 Rule 17 C.P.C makes it
abundantly clear that the Court may at any stage of suit recall any witness who
has been examined and may put such questions to him as the Court thinks fit.
Therefore, the provisions of Order 18 Rule 17 C.P.C can be invoked by the
Trial Court taking into consideration the lis before it. The provisions are
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 11/24/2023
4:11:01 PM
undoubtedly for the convenience of the Court and cannot be used to fill up the
lacuna in the case. In the present case, the defendants along with present
petition have not brought on record the written statement filed by the defendants
before the Trial Court. The Trial Court in the impugned order has categorically
observed that a written statement has already been filed by the present
petitioners/defendants and in the said written statement there are averments by
the present petitioners/defendants regarding the power of attorney dated
26.10.2012 and also the order of mutation passed by the authority concerned
thereon. Thus, in the present case it is undisputed that at the time of
examination of the plaintiff witness Dheerendra Puri, the defendants were
defending their stand on the ground of power of attorney dated 26.10.2012 and
subsequent alienation of the property on the basis of said power of attorney
dated 26.10.2012. The entire application which is contained in Annexure P-3
filed under Order 18 Rule 17 C.P.C nowhere reflects that which question could
not be put to plaintiff witness Dheerendra Puri pertaining to the records which
were directed to be taken on record by the Trial Court vide order dated
19.11.2018.
9. It is trite that the provision of Order 18 Rule 17 C.P.C cannot be
invoked to fill the lacuna. (please see Surinder Kaur v. Karanbir Singh -
AIR 2004 P and H 377). The Apex Court in K.K. Velusamy v. N.
Palanisamy [(2011) 11 Sc 275] has held as under:
"16. We may add a word of caution. The power under
Section 151 or Order 18 Rule 17 of the code is not
intended to be used routinely, merely for the asking .
It is so used, it will defeat the very purpose of various
amendments to the Code to expedite trials. ....."
10. In Bagai Construction, through its Proprietor lalit Bagai vs. Gupta
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 11/24/2023
4:11:01 PM
Building Material Store [(2013) 14 SCC 1] it is held that
"14. The perusal of the materials placed by the
plaintiff which are intended to be marked as bills have
already been mentioned by the plaintiff in its
statement of account but the original bills have not
been placed on record by the plaintiff till the date of
filing of such application. It is further seen that
during the entire trial, those documents have
remained in exclusive possession of the plaintiff but
for the reasons known to it, still the plaintiff has not
placed these bills on record. In such circumstance, as
rightly observed by the trial court at this belated
stage and that too after the conclusion of the evidence
and final arguments and after reserving the matter for
pronouncement of the judgment, we are of the view
that the plaintiff cannot be permitted to file such
applications to fill the lacunae in its pleadings and
evidence led by him. As rightly observed by the trial
court, there is no acceptable reason or cause which
has been shown by the plaintiff as to why these
documents were not placed on record by the plaintiff
during the entire trial. Unfortunately, the High Court
taking note of the words "at any stage" occurring in
Order 18 Rule 17 casually set aside the order of the
trial court, allowed those applications and permitted
the plaintiff to place on record certain bills and also
granted permission to recall PW 1 to prove those
bills. Though power under Section 151 can be
exercised if ends of justice so warrant and to prevent
abuse of process of court and court can exercise its
discretion to permit reopening of evidence or
recalling of witness for further examination/cross-
examination after evidence led by the parties, in the
light of the information as shown in the order of the
trial court, namely, those documents were very well
available throughout the trial, we are of the view that
even by exercise of Section 151 CPC, the plaintiff
cannot be permitted."
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 11/24/2023
4:11:01 PM
11. Thus, the Trial court did not commit any error while rejecting the
application under Order 18 Rule 17 C.P.C.
12. Other application which has been rejected by the Trial Court was
filed by the present petitioners/defendants under order 13 Rule 10 C.P.C. By
the said application it was submitted by defendants that in order to exhibit the
power of attorney dated 26.10.2012 the evidence of the then Deputy registrar
Bhopal was required to be adduced. The provisions of Order 13 Rule 10
C.P.C provides as under:
10. Court may send for papers from its own records
or from other Courts.- (1) The Court may of its own
motion, and may in its discretion upon the application
of any of the parties to a suit, send for, either from its
own records or from any other suit or proceedings,
and inspect the same.
(2) Every application made under this rule (unless the
Court otherwise directs) be supported by an affidavit
showing how the record is material to the suit in
which the application is made, and that the applicant
cannot without unreasonable delay or expense obtain
a duly authenticated copy of the record or of such
portion thereof as the applicant requires, or that the
production of the original is necessary for the
purposes of justice.
(3) Nothing contained in this rule shall be deemed to
enable the Court to use in evidence any document
which under the law of evidence would be
inadmissible in the suit.
1 3 . The aforesaid provisions deal with the power of Trial Court to
requisition the record from any other Court pertaining to any suit or
proceedings. The application which is filed under order 13 Rule 10 C.P.C
should contain an explanation that the said application is being moved without
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 11/24/2023
4:11:01 PM
unreasonable delay. If the application filed under Order 13 Rule 10 C.P.C
(Annexure P-5) is taken into consideration, the said application reveals that by
way of said application the record pertaining to the power of attorney dated
26.10.2012 and an ensued mutation were sought to be summoned. However, in
the entire application, which is filed under Order 13 Rule 10 C.P.C it was
nowhere stated by the defendants on affidavit that under what circumstances the
said application could not be filed by the defendants earlier. The application
filed under order 13 Rule 10 C.P.C (Annexure P-5) does not refer to the order
passed by the Trial Court dated 19.11.2018. Therefore, the contention of the
present petitioners that the application filed by the defendants were offshoot of
order dated 19.11.2018, is unsustainable. The Court below while dealing with
the application under order 13 Rule 10 has clearly observed that the defendants
herein have taken a stand in their written statement regarding the power of
attorney and also mutation on the property in question and yet after a lapse of 7
years the application under Order 13 Rule 10 C.P.C was filed. Thus, the Trial
Court did not commit any error while dismissing the application under Order 13
Rule 10 C.P.C as well.
14. So far as the application filed under order 16 Rule 2 C.P.C is
concerned, the said application according to the counsel for petitioner was filed
under Order 16 Rule 1 C.P.C. Contention of the counsel regarding this
application is also identical, inasmuch as, by this application summoning of
Deputy Registrar, Shahjahanbad, Bhopal was prayed as a witness. The
provisions of Order 16 Rule 1 (3) C.P.C provides that the Court may, for
reasons to be recorded, permit a party to call any witness, other than those
whose names appear in the list referred to in sub-rule (1) of Order 16, if such
party shows sufficient cause for the omission to mention the name of such
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 11/24/2023
4:11:01 PM
witness in the said list. Therefore, the provisions of Order 16 Rule 1 (3) C.P.C
only comes in operation when the party is in a position to show sufficient cause
for the omission to mention the name of such witness in the list of witnesses
which is required to be submitted in terms of Order 16 Rule 1 C.P.C. In the
entire application filed under Order 16 Rule 2 C.P.C the petitioners/defendants
have nowhere shown sufficient cause for the omission of the names of the
witnesses. The entire application is conspicuously silent as regards sufficient
cause for the omission. Therefore, the Trial Court again did not commit any
error in rejecting the application filed under Order 16 Rule 2 C.P.C as well.
15. Thus, this Court does not find any merit in the petition. The same
stands dismissed.
(MANINDER S. BHATTI)
JUDGE
vivek
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 11/24/2023
4:11:01 PM
