Chandra Gopal Hayaran vs Kirtesh Oswal
2023 Latest Caselaw 16221 MP

                                                          1
                           IN    THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                       BEFORE
                                       HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                             ON THE 4 th OF OCTOBER, 2023
                                             MISC. PETITION No. 4674 of 2023

                          BETWEEN:-
                          1.    CHANDRA    GOPAL  HAYARAN   S/O   SHRI
                                CHOTERAM HAYARAN, AGED ABOUT 82 YEARS,
                                OCCUPATION: SELF EMPLOYED R/O 67 LOHA
                                BAZAR BHOPAL DISTRICT BHOPAL (MADHYA
                                PRADESH)

                          2.    YOGESH KUMAR HAYARAN S/O SHRI CHANDRA
                                GOPAL HAYARAN, AGED ABOUT 51 YEARS,
                                OCCUPATION: SELF EMPLOYED R/O 67 LOHA
                                BAZAR BHOPAL DISTRICT BHOPAL (MADHYA
                                PRADESH)

                          3.    SHAILESH KUMAR HAYARAN S/O SHRI CHANDRA
                                GOPAL HAYARAN, AGED ABOUT 48 YEARS,
                                OCCUPATION: SELF EMPLOYED R/O 67 LOHA
                                BAZAR BHOPAL DISTRICT BHOPAL (MADHYA
                                PRADESH)

                                                                                     .....PETITIONER
                          (BY SHRI AVINASH ZARGAR-ADVOCATE)

                          AND
                          KIRTESH OSWAL S/O LATE SHRI L C OSWAL R/O 75
                          ZONE 2 MAHARNA PRATAP NAGAR BHOPAL DISTRICT
                          BHOPAL (MADHYA PRADESH)

                                                                                  .....RESPONDENTS
                          (BY SHRI SHUBHAM MISHRA-ADVOCATE)

                                This petition coming on for admission this day, th e court passed the
                          following:
                                                           ORDER

This petition has been filed assailing the order dated 03/08/2023 (Annexure P/1) in RCS 699A/2018 passed by Civil Judge, Junior Division, Signature Not Verified Signed by: ASTHA SEN Signing time: 10/7/2023 12:28:07 PM

Bhopal, (M.P.).

2. It is contended by the counsel that the petitioners/plaintiffs have filed a suit seeking relief of permanent and mandatory injunction in respect of property detailed in paragraph 1 of the plaint. The claim of the petitioners is based on a stand that the petitioners/plaintiffs are the owner of suit property and the defendant though entered into an agreement dated 06/05/2018 yet did not comply with the condition of the same and was making an effort to dispossess the petitioners/plaintiffs. It is contended by the counsel that the trial Court proceeded to try the suit. The parties adduced their evidence and the case was posted for final hearing. At that stage, the petitioners/plaintiffs realized that they

were required to adduce the evidence of plaintiff No.2 in whose favour a Will i.e Exhibit P/2 was executed under which he had derived the title in respect of the suit property; accordingly, an application under Section 151 of CPC was filed. The said application has been rejected by the trial Court while passing the impugned order dated 03/08/2023 (Annexure P/1).

3. It is contended by the counsel that the order impugned is unsustainable inasmuch as, the trial Court was required to appreciate that the petitioner No.2 had derived the title on the basis of a Will (Exhibit P/2), therefore, the evidence of the petitioner No.2 was required for proper adjudication of the matter. The petitioner while explaining the said need elaborately in application under Section 151 of CPC, made a prayer to the trial Court to permit the petitioner No.2 to adduce the evidence. However, the said application has been turned down by the trial Court and the trial Court merely turned down the said application while observing that the application has been submitted at a belated stage and the relief as prayed for in the application is

Signature Not Verified Signed by: ASTHA SEN Signing time: 10/7/2023 12:28:07 PM

covered under the provisions as mentioned in Order XVIII Rule 17 of CPC.

4. Learned counsel thus while placing reliance on the decision of the Apex Court in the case of Ram Rati Vs. Mange Ram (D) Thr. Lrs. & Ors. reported in 2016 160 AIC 10 and the decision of Bombay High Court in the case of Mukund Iron Staff Association Co-op, Housing Society Ltd. Vs. Vasant Ramchandra Patil (D) Thr. Lrs. & Ors. reported in 2016 (3) AIIMR 721 submits that the impugned order dated 03/08/2023 (Annexure P/1) deserves to be set aside.

5. Per contra, learned counsel for the respondent submits that the present petition deserves to be dismissed. It is contended by the counsel that the petitioners'/plaintiffs' evidence in the present case was completed way back on 20/01/2020 and it was expressed by the petitioners/plaintiffs that they were not willing to adduce any evidence. Later on, the evidence of the defendant was also completed on 26/02/2023. Then, the case was fixed for final argument on 20/07/2023 and thereafter the next date was fixed for 28/07/2023 and on that date the petitioners/plaintiffs filed an application under Section 151 of CPC. It is contended by the counsel that the aforesaid conduct of the petitioners/plaintiffs was taken note of by the trial Court and accordingly, the impugned order has been rightly passed.

6. To support his contention, learned counsel for the respondent has

placed reliance on the decision of Apex Court in the case of Bagai Construction Vs. Gupta Building Material Store reported in (2013) 14 SCC 1 and in the judgment of Delhi High Court in the case of Kenneth Loyal Vs. Vipon Vinod Lnind reported in 2005 Del 351. It is contended by the counsel that in terms of the law laid down by the Apex Court, the powers under Section 151 of CPC should be exercised with utmost caution and cannot be Signature Not Verified Signed by: ASTHA SEN Signing time: 10/7/2023 12:28:07 PM

exercised in a casual manner. It is contended by the counsel that if the statute contains specific provisions for a particular eventuality, the inherent powers under Section 151 of CPC cannot be exercised to supplant the said provisions, thus, submits that the present petition deserves to be dismissed.

7. No other point is pressed or argued by the parties.

8. Heard rival submissions of the parties and perused the record.

9. A perusal of the record reflects that the petitioners/plaintiffs herein have moved an application before the trial Court on 28/07/2023. The said application has been moved at a stage when the matter was posted for final hearing. The order impugned reflects that the petitioners/plaintiffs evidence was finished way back on 20/01/2020 and the petitioners/plaintiffs did not adduce the evidence of any other witness. Thereafter, on 26/02/2023, the evidence of defendant was also completed. The matter was then posted for final argument on 20/07/2023. Thereafter the matter was again posted for final argument on 28/07/2023 and on that date, the petitioners/plaintiffs filed an application under Section 151 of CPC. The trial Court while considering the aforesaid application has observed that the said application has been filed by the petitioners/plaintiffs with an object to fill up the lacuna in pleadings/evidence.

10. The application filed by the petitioners/plaintiffs under Section 151 of CPC reveals that an attempt was made by the petitioners/plaintiffs to demonstrate that there existed a Will in favour of plaintiff No.2 and plaintiff No.2 was the best witness to adduce the evidence. A perusal of application filed under Section 151 of CPC reflects that the said will has already been exhibited as Exhibit P/2 and therefore, this is a case where the petitioners/plaintiffs are making an effort to fill up the lacuna in evidence. The Apex Court in the case of

Signature Not Verified Signed by: ASTHA SEN Signing time: 10/7/2023 12:28:07 PM

Bagai Constructions (Supra) held in paragraph 15 as under:

"15. After change of various provisions by way of amendment in CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still the plaintiff has not placed those bills on record. It further shows that final arguments were heard on a number of times and the judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC."

11. The Apex Court also considered the subsequent amendments in the Code of Civil Procedures. The Apex Court also considered the aspect of completion of litigation within a reasonable time and there is further observation by the Apex Court that if the time schedule is not followed, the amendment in various provisions of the Code of Civil Procedure would be frustrated. The Apex Court also observed that the applications of adjournment, reopening and recalling should be so far as possible, avoided and only under compelling Signature Not Verified Signed by: ASTHA SEN Signing time: 10/7/2023 12:28:07 PM

circumstances, such applications are required to be entertained.

12. In the present case, there is failure on the part of the petitioners/plaintiffs to move the application for examination of plaintiff No.2 as witness for a period of more than 3 years and 6 months. The petitioners/plaintiffs evidence was closed way back on 20/01/2020, therefore, for a prolonged period of 3 years and 6 month, the petitioners/plaintiffs did not make any effort to approach the trial Court with a prayer to examine the plaintiff No.2 as a witness. Therefore, the said application filed under Section 151 of CPC at the fag end of litigation, was merely a device to fill up the lacuna and the trial Court has rightly dismissed the same as the said application has been moved at a belated stage just to fill up the lacuna in pleadings/evidence. Thus, in view of the law laid down by the Apex Court in the case of Bagai Construction (Supra), in the considered view of this Court, the impugned order passed by the trial Court requires no interference.

13. The reliance as placed by the petitioners/plaintiffs in the case of

Ram Rati (Supra) and Mukund Iron Staff Association (Supra) is misconceived inasmuch as, in the present case there is a finding by the trial Court that the application for re-opening of evidence has been filed with an object to fill up the lacuna.

14. Thus, this Court does not find any infirmity or perversity in the order impugned dated 03/08/2023 (Annexure P/1).

15. Accordingly, the petition stands dismissed.

16. No order as to costs.

(MANINDER S. BHATTI) JUDGE Signature Not Verified Signed by: ASTHA SEN Signing time: 10/7/2023 12:28:07 PM

Astha

Signature Not Verified Signed by: ASTHA SEN Signing time: 10/7/2023 12:28:07 PM