Madhya Pradesh High Court
Smt. Anita vs Maheshchandra on 8 September, 2023
Author: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 8th OF SEPTEMBER, 2023
MISC. PETITION No. 5769 of 2022
BETWEEN:-
SMT. ANITA W/O MAHSHCHANDRA
AGRAWAL, AGED ABOUT 44 YEARS,
OCCUPATION: HOUSEWIFE R/O 1/2
MALHARGANJ INDORE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SUMEET SAMVATSAR - ADVOCATE)
AND
1. MAHESHCHANDRA S/O
JAGDISHCHANDRA AGRAWAL, AGED
ABOUT 61 YEARS, R/O 1/2
MALHARGANJ INDORE (MADHYA
PRADESH)
2. RAJABABU S/O JAGDISHCHANDRA
AGRAWAL, AGED ABOUT 59 YEARS,
OCCUPATION: BUSINEESS R/O 85
JAGLILA JANKINAGAR INDORE
(MADHYA PRADESH)
3. DINESHCHANDRA S/O
JAGDISHCHANDRA AGRAWAL, AGED
ABOUT 56 YEARS, OCCUPATION:
BUSINESS R/O 85 JAGLILA
JANKINAGAR INDORE (MADHYA
PRADESH)
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 9/12/2023
6:46:19 PM
2
4. SURESHCHANDRA S/O
JAGDISHCHANDRA AGRAWAL, AGED
ABOUT 54 YEARS, OCCUPATION:
BUISNESS R/O 54 AGRAWAL NAGAR
INDORE (MADHYA PRADESH)
5. SMT. LAXMIBAI W/O GOPALDAS
AGRAWAL, AGED ABOUT 66 YEARS,
OCCUPATION: HOUSEWIFE R/O 50
RAJASWAGRAM CHATRIBAGH INDORE
(MADHYA PRADESH)
6. SMT. SAVITRIDEVI W/O SHRAWANLAL
AGRAWAL, AGED ABOUT 64 YEARS,
OCCUPATION: HOUSEWIFE R/O 30 M
KHATIWALA TANK INDORE (MADHYA
PRADESH)
7. SMT. GAYATRIDEVI W/O RATANLALJI
BANSAL, AGED ABOUT 57 YEARS,
OCCUPATION: HOUSEWIFE R/O
KADABEEN TELI BAKHAL INDORE
(MADHYA PRADESH)
8. SMT. SARLADEVI W/O
PRAKASHCHANDRA MANGAL, AGED
ABOUT 51 YEARS, OCCUPATION:
HOUSEWIFE R/O STAION ROAD
BAGANA NEEMUCH (MADHYA
PRADESH)
9. THE STATE OF MADHYA PRADESH
COLLECTOR INDORE (MADHYA
PRADESH)
10. SMT. USHADEVI W/O SHRI RAJABABU
AGRAWAL, AGED ABOUT 28 YEARS,
OCCUPATION: HOUSEWIFE R/O
JAGLILA 85 JANKINAGAR INDORE
(MADHYA PRADESH)
11. MANISH S/O SHRI RAJABABU
AGRAWAL, AGED ABOUT 31 YEARS,
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 9/12/2023
6:46:19 PM
3
OCCUPATION: BUSINESS R/O 85
JANKINAGAR INDORE (MADHYA
PRADESH)
12. ROOPESH S/O SHRI RAJABABU
AGRAWAL, AGED ABOUT 29 YEARS,
OCCUPATION: BUSINESS R/O 85,
JANKINAGAR INDORE (MADHYA
PRADESH)
13. SMT. MANISHA W/O SHRI MANISH
AGRAWAL, AGED ABOUT 29 YEARS,
OCCUPATION: HOUSEWIFE R/O 85,
JANKINAGAR INDORE (MADHYA
PRADESH)
14. ASHISH S/O SHRI DINESHCHANDRA
AGRAWAL, AGED ABOUT 25 YEARS,
OCCUPATION: BUSINESS R/O 85
JANKINAGAR INDORE (MADHYA
PRADESH)
15. ANOOP S/O SHRI DINESHCHANDRA
AGRAWAL, AGED ABOUT 25 YEARS,
OCCUPATION: BUSINESS R/O 85,
JANKINAGAR INDORE (MADHYA
PRADESH)
16. KU. NEHA D/O SHRI
DINESHCHANDRA AGRAWAL, AGED
ABOUT 21 YEARS, OCCUPATION:
HOUSEWIFE R/O 85, JANKINAGAR
INDORE (MADHYA PRADESH)
17. SMT. MAMTA W/O SHRI RISHI GARG
AGRAWAL, AGED ABOUT 33 YEARS,
OCCUPATION: HOUSEWIFE R/O
GHANSHYAM VILLA DEMPRELAR
NAGAR MATHURA (UTTAR PRADESH)
18. SMT. ANITA W/O SHRI
SURESHCHANDRA AGRAWAL, AGED
ABOUT 52 YEARS, OCCUPATION:
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 9/12/2023
6:46:19 PM
4
HOUSEWIFE R/O 54, JANKINAGAR
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VISHAL BAHETI - ADVOCATE FOR RESPONDENT NO.1 AND
SHRI NILESH AGRAWAL - ADVOCATE FOR RESPONDENT NO.2)
...............................................................................................................
This petition coming on for admission this day, the court
passed the following:
ORDER
1] This petition has been filed by the petitioner/defendant No.18
under Article 227 of the Constitution of India against the order
dated 10.11.2022, passed in Civil Suit No.44A/2012 by XI District
Judge, Indore whereby the application filed by the
petitioner/defendant No.18 under Order 11 Rule 12 and 14 of CPC
for production of a sale deed has been rejected.
2] In brief, the facts of the case are that the plaintiff/respondent
No.1 has filed a suit for declaration, partition, injunction and mesne
profit against defendants, as all the parties belong to the same
family. In the aforesaid suit, earlier, an application was filed by the
plaintiff on 30.11.2011, in which certain documents which were in
the possession of defendant No.1 were sought by the plaintiff
including a sale deed regarding the land situated at Village
Badiakima. In reply to the aforesaid application, the defendant No.1
although admitted the other documents to be in his possession,
however, the possession of this particular sale deed was denied by
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 9/12/2023
6:46:19 PM
him, and trial Court directed the defendant No.1 to produce the
other documents which were available with him, and regarding the
aforesaid sale deed since it was not in possession of defendant No.1,
the said prayer was denied by the trial Court vide order dated
07.08.2015.
3] Subsequently, the written statement was amended by the
defendant No.1 in the year 2021, in which he has admitted that the
aforesaid sale deed of Badiakima is in his possession. Thus, another
application under Order 11 Rule 12 and 14 was filed by the
defendant No.18/petitioner, who also happens to be the wife of the
plaintiff, seeking production of the aforesaid sale deed, which now
the defendant No.1 admitted that it is in his possession. Although no
reply was filed by the defendant No.1 to the said application,
however, the learned Judge of the trial Court has rejected the same
on the ground that since the defendant No.18 happens to be the wife
of the plaintiff, hence, the plaintiff is trying to make good of the
deficiency of the plaint by filing the aforesaid application through
his wife, the defendant No.18.
4] Counsel for the petitioner has submitted that the impugned
order is liable to be set aside for the reason that had it been
disclosed by the defendant No.1 in the earlier application filed by
the plaintiff for production of documents that the aforesaid sale
deed is also in his possession, the trial Court could have directed
him to produce the same in the earlier order dated 07.08.2015. It is
also submitted that a false statement was made by the defendant
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 9/12/2023
6:46:19 PM
No.1 on oath, and despite that, the Court has held that the plaintiff is
trying to fulfill the lacuna.
5] Counsel has also drawn the attention of this Court to a recent
decision of the Supreme Court in the case of Azgar Barid (Dead) by
Legal Representatives and others Vs. Mazambi Alias Pyaremabi
and others reported as (2022) 5 SCC 334 wherein the Supreme
Court has held that in a suit for partition, the position of the plaintiff
and defendant can be interchangeable, and each party adopts the
same position with other parties. It is submitted that the document
sought to be produced by the defendant No.18 was in line with the
aforesaid preposition of law as held by the Supreme Court. Thus,
the impugned order deserves to be set aside and the application filed
by this petitioner deserves to be allowed.
6] The application is opposed by the learned counsel for the
respondent No.2/defendant No.1 and it is submitted that no case for
interference is made out. It is also submitted that although the
application filed by the defendant No.18 has been dismissed, but the
Court has also observed that the aforesaid document can be proved
through the certified copy of the same.
7] Counsel for the respondent No.1 submits that he has no
objection if the petition is allowed.
8] Heard. Having considered the rival submissions, and on
perusal of the documents filed on record, it is found that so far as
the legal position concerning the plaintiff and defendant in a
partition suit is concerned, the Supreme Court in the case of Azgar
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 9/12/2023
6:46:19 PM
Barid (Dead) by Legal Representatives and others (supra) has
held as under:-
"12. Per contra, Shri Ananthamurthy submitted
that the trial court had rightly appreciated the
evidence. However, the First Appellate Court had
reversed the same on the basis of conjectures and
surmises. The High Court has therefore rightly
interfered with the same while reversing the
judgment of the First Appellate Court. He further
submitted that in a partition suit, all the parties
stand on a same pedestal and every party is a
plaintiff as well as a defendant.
13. We will first deal with the objection of the
appellant that since plaintiff Nos.4 to 8, whose
claim was denied by the trial court and who had
not challenged the same by way of appeal, are not
entitled to relief in the second appeal. This Court in
the cases of Bhagwan Swaroop and Others v.
Mool Chand and Others1 and Dr. P. Nalla
Thampy Thera v. B.L. Shanker and Others, has
held that in a suit for partition, the position of the
plaintiff and the defendant can be interchangeable.
Each party adopts the same position with the other
parties. It has 1 (1983) 2 SCC 132 2 1984 (Supp)
SCC 631 been further held that so long as the suit
is pending, a defendant can ask the Court to
transpose him as a plaintiff and a plaintiff can ask
for being transposed as a defendant.
14. This Court in the case of Chandramohan
Ramchandra Patil and Others v. Bapu Koyappa
Patil (Dead) Through LRs and Others, has held
thus: (SCC pp.558-59, paras 14-15).
"14. Order 41 Rule 4 of the Code enables
reversal of the decree by the court in appeal at
the instance of one or some of the plaintiffs
appealing and it can do so in favour of even
non-appealing plaintiffs. As a necessary
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 9/12/2023
6:46:19 PM
consequence such reversal of the decree can be
against the interest of the defendants vis-a-vis
non-appealing plaintiffs. Order 41 Rule 4 has to
be read with Order 41 Rule 33. Order 41 Rule
33 empowers the appellate court to do complete
justice between the parties by passing such order
or decree which ought to have been passed or
made although not all the parties affected by the
decree had appealed.
15. In our opinion, therefore, the appellate court
by invoking Order 41 Rule 4 read with Order 41
Rule 33 of the Code could grant relief even to
the non- appealing plaintiffs and make an
adverse order against all the defendants and in
favour of all the plaintiffs. In such a situation, it
is not open to urge on behalf of the defendants
that the decree of 3 (2003) 3 SCC 552 dismissal
of suit passed by the trial court had become final
inter se between the non-appealing plaintiffs and
the defendants."
(emphasis supplied)
9] Now coming to the facts of the present case, admittedly, the
defendant No.1, in the earlier application filed by the plaintiff, had
denied the possession of the sale deed in question, however,
subsequently he has admitted that the document is in his possession.
In such circumstances, this Court is of the considered opinion that
the trial Court ought to have imposed some costs on the defendant
No.1 while allowing the application filed by the defendant No.18
subsequently, for production of the document, instead, the
application was rejected vide the impugned order on some technical
ground without any formal reply by the defendant no.1, which
cannot be sustained in the eyes of law. Accordingly, the impugned
order dated 10.11.2022, is hereby set aside, and the application filed
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 9/12/2023
6:46:19 PM
by the petitioner/defendant No.18 under Order 11 Rule 12 and 14 of
C.P.C. is hereby allowed, and the defendant No.1 is directed to
produce the aforesaid document before the trial Court.
10] Since the defendant No.1 has made a false statement in the
trial Court on the earlier occasion, and in this Court also the
application has been vehemently opposed by the defendant No.1
despite the fact that no reply was filed by the defendant No.1 before
the trial Court of the application filed by the defendant No.18, a
cost of Rs.25,000/- is imposed on the defendant No.1 which shall be
paid to defendant No.18 in the trial court within two weeks time.
With the aforesaid, the petition stands disposed of.
(Subodh Abhyankar)
Judge
Pankaj
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 9/12/2023
6:46:19 PM
