Smt Alka Shrivastava D/O Late Shri ... vs Smt Bharti Jha
2023 Latest Caselaw 15874 MP

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                   AT GWALIOR
                                                       BEFORE
                                         HON'BLE SHRI JUSTICE ANAND PATHAK
                                             ON THE 26 th OF SEPTEMBER, 2023
                                               MISC. PETITION No. 2070 of 2023

                           BETWEEN:-
                           SMT ALKA SHRIVASTAVA D/O LATE SHRI PRAM
                           NARAYAN    SHRIVASTAVA   W/O  SHRI   DINESH
                           SHRIVASTAVA, AGED ABOUT 52 YEARS, JAGDISH
                           COLONY, HAAT ROAD, GUNA (MADHYA PRADESH)

                                                                                          .....PETITIONER
                           (BY SHRI RAJNISH SHARMA - ADVOCATE)

                           AND
                           1.    SMT BHARTI JHA W/O SHRI PRUSHOTTAM
                                 KUMAR JHA, AGED ABOUT 51 YEARS, R/O- PRAM
                                 AGENCY INFRONT OF INDIRA PARK SONI
                                 COLONY GUNA (MADHYA PRADESH)

                           2.    DINESH SHRIVASTAVA S/O LATE SHRI PREM
                                 NARAYAN SHRIVASTAVA, AGED ABOUT 60
                                 YEARS, OCCUPATION: ADVOCATE NOTARY R/O-
                                 JAGDISH COLONY HAAT ROAD GUNA (MADHYA
                                 PRADESH)

                                                                                        .....RESPONDENTS
                           (BY SHRI YOGESH CHATURVEDI - ADVOCATE)

                                 Th is petition coming on for hearing this day, th e court passed the
                           following:
                                                               ORDER

1. The present petition under Article 227 of the Constitution has been preferred by the petitioner taking exception to the order dated 04.03.2023 passed by Second Additional Judge to First Civil Judge, Junior Division, Guna, whereby the application preferred by the petitioner/plaintiff under Order XI Rule 12 readwith Section 151 of CPC and Section 66 of the Evidence Act has been Signature Not Verified Signed by: RASHID KHAN Signing time: 26-09-2023 07:22:51 PM

rejected.

2. It is the submission of the learned counsel for the petitioner that a suit for eviction and recovery of rent and mesne profit was filed at the instance of the petitioners/plaintiffs against the defendants with certain allegations as contained into the suit. Respondents/defendants contested the case by filing written statements. He raised the plea regarding a Will executed by mother of plaintiff No.1 namely Smt. Ramrati Bai in favour of husband of respondent on 05.11.2018. Prior to it, original owner of the suit property Satish Shrivastava executed an agreement to sale dated 12.12.1996 in favour of respondent No.1 for disposing of the suit property in favour of respondent No.1.

3. Thereafter, application was preferred by the petitioners under Order XI Rule 12 of CPC, which was rejected, therefore, this petition has been preferred.

4 . According to learned counsel for the petitioners, approach of trial court is arbitrary and illegal. Once agreement to sale dated 12.12.1996 was referred by the petitioners and the Will dated 06.11.2018 executed allegedly by Ramrati Bai in favour of husband of defendant No.1 then though the documents are required to be produced by the defendants before the Court. Trial Court did not consider this aspect and caused illegality.

5 . Learned counsel for the respondent No.1 opposed the prayer and submitted that he has referred execution of certain documents but how these documents are important for adjudication or for cause of plaintiff and relation with the pleading is not known. Therefore, in absence of any specific pleading in this regard, no case for interference is made out. He relied upon the judgment rendered by the Apex Court in the case of State of Madhya Pradesh Vs. Usha Devi reported in (2015) 8 SCC 672 and the judgment passed by this

Signature Not Verified Signed by: RASHID KHAN Signing time: 26-09-2023 07:22:51 PM

Court in the case of Indore Municipal Corporation and another Vs. S.B. Electricals reported in 2019 (3) MPLJ 663 in support of his submission.

6. Heard the learned counsel for the parties and perused the documents appended thereto.

7. This is a case where petitioner is seeking production of documents i.e. agreement to sale dated 12.12.1996 as available on record and through this application he is trying to bring that document on record. However; petitioner has not mentioned the reason to bring the such document on record from defendant no.1, because it does not affect the subject matter of the suit per se at the stage where at present the suit is. Pleadings in application do not suggest any such aspect where it can be inferred that it has the trappings of subject matter of suit. Defence of defendants cannot be the sole basis in the present case compelling him to bring those documents on record without any explanation for satisfaction of provisions of Order XI Rule 12 of the CPC. It is discretionary in nature.

8 . Perusal of order passed by the trial Court it appears that application stands dismissed on the ground that plaintiff intends to collect the evidence and in the present case apparently so because suit is in respect of eviction where parties are not required to go into such aspect prima facie.

9 . Under discretionary jurisdiction of Article 227 of the Constitution,

once trial court has taken a view, then this view cannot be disturbed without any cogent reason or impropriety / irregularity apparent on the face of record.

1 0 . With the aforesaid, the present petition sans merit and is hereby dismissed.

Signature Not Verified Signed by: RASHID KHAN Signing time: 26-09-2023 07:22:51 PM

(ANAND PATHAK) JUDGE Rashid

Signature Not Verified Signed by: RASHID KHAN Signing time: 26-09-2023 07:22:51 PM