Madhya Pradesh High Court
Shubham Khandelwal vs Dr. Vivek Malani on 2 February, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 2 nd OF FEBRUARY, 2024
MISC. PETITION No. 6600 of 2023
BETWEEN:-
1. SHUBHAM KHANDELWAL S/O SHRI SANTOSH
KHANDELWAL, AGED ABOUT 36 YEARS,
OCCUPATION: BUSINESS CHAWANI, TEHSIL
AGAR, DISTRICT AGAR MALWA (MADHYA
PRADESH)
2. SHILPA KHANDELWAL W/O SHUBHAM
KHANDELWAL, AGED ABOUT 31 YEARS,
OCCUPATION: HOUSEWIFE CHAWANI, TEHSIL
AGAR, DIST. AGAR MALWA (MADHYA PRADESH)
.....PETITIONER
( BY SHRI PRABUDDHA SINGH-ADVOCATE)
AND
1. DR. VIVEK MALANI S/O SHRI NANDKISHORE
MALANI, AGED ABOUT 52 YEARS, OCCUPATION:
DOCTOR SEVADHAM HOSPITAL, CHAWANI,
TEHSIL AGAR, DISTRICT AGAR MALWA
(MADHYA PRADESH)
2. DR. SUNITA MALANI S/O SHRI VIVEK MALANI,
AGED ABOUT 52 YEARS, OCCUPATION: DOCTOR
SEVADHAM HOSPITAL, CHAWANI, TEHSILA
AGAR MALWA (MADHYA PRADESH)
3. STATE OF MADHYA PRADESH THROUGH
COLLECTOR AGAR MALWA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SANJAY TIWARI-ADVOCATE)
(BY SHRI SANJAY TIWARI, ADVOCATE/RESPONDENT [R-2].
T h is petition coming on for orders this day, t h e cou rt passed the
following:
Signature Not Verified
Signed by: PRAVEEN
Signing time: 07-02-
2024 15:58:50
2
ORDER
The petitioners/defendant No.1 and 2 have filed present Misc. Petition
under Art. 227 of the Constitution of India challenging the order dated
10.10.2023 whereby an application under Order 8 Rule 1 of C.P.C. to bring
additional documents on record has been rejected.
[2] The respondent No.1 and respondent No.2 i.e. plaintiffs have filed
Civil Suit for declaration and permanent injunction in respect of land survey
No.341/1/2 area 0.064 hectare which they said to have purchased vide
registered sale deed dated 06.07.1998. According to the plaintiffs vide order
dated 28.05.1992 the Sub Divisional Officer has diverted the land for residential
purpose. The name of plaintiffs were mutated in record of Municipal Council,
Aagar. They obtained the permission for construction of house on 7025 sqft.
They constructed ground floor on area 1950 sqft and rest place left open. The
defendant No.1 purchased the land survey 341/2 MIN area 0.228 RA vide
registered sale deed dated 23.09.2009. According to the plaintiffs the
defendants in collusion with the Revenue Officers got demarcated the land
illegally and encroached land area 5780 sqft. by constructing wall. The
defendants got executed sale deed dated 07.03.2016 in the name of defendant
No.2 and changed the boundaries. The plaintiffs filed suit seeking relief of
declaration and permanent injunction and seeking declaration that the
proceedings of case No. 6A17/2017-2018 in the Court Tehsildar is void.
[3] The defendants filed the Written Statement on 08.03.2021, alongwith
Written Statement the defendants filed as many as 10 documents on
05.09.2021. Thereafter issues were framed. The plaintiffs examined their
witnesses and they were cross examined by the defendants. After closing the
plaintiffs evidence, the defendants filed an application under Order 8 Rule 1 of
C.P.C.seeking permission to file as many as 15 certified copy of documents for
taking them on record. According to the defendants these documents were not
in their possession at the time of filing of Written Statement and they are
necessary for adjudication of the Civil Suit.
[4] The said application was opposed by the plaintiffs that the Civil Suit
is fixed for defendants evidence since 27.08.2023 and after nine adjournments,
this application has been filed to delay the proceedings of the Civil Suit. All
these documents 15.02.2016, 22.10.2018, 29.11.2018, 13.11.2019 are prior to
date of framing of issues dated 16.09.2021. The defendants had certified copy
of these documents but same were not filed. After hearing learned counsel for
the parties, the learned Civil Court has dismissed the application, hence,
present Misc.Petition before this Court.
[5] Learned counsel for the petitioners/defendants has placed reliance on
the judgment passed by Apex Court in case of Sugandhi (Dead) by Legal
Representatives and another Vs. P. Rajkumar Represented by his Power
Agent Imam Oli reported in (2020) 10 SCC 706 in which the Apex Court
has held that if procedural violation does not seriously cause prejudice to
adversary party, courts must lean towards doing substantial justice rather than
relying upon procedural and technical violation and allowed the application filed
under Order 8 Rule 1-A (3) of C.P.C.
[6] Learned counsel for the respondents opposes the aforesaid prayer by
submitting that the defendants had an occasion to file these documents
alongwith Written Statement. After framing of the issues and tendering at the
time of plaintiffs' evidence under the provision of Rule 1(1) of Order 13 CPC.
Certified copies of these documents were in possession of the defendants. The
defendants have knowledge about these documents because they were party
before the Revenue Court. The defendants are delaying the proceedings and not
examining the witnesses since last eight occasions.
[7] In the application filed under Order 8 Rule 1 of C.P.C.the defendants
have not assigned any reason for not producing these documents alongwith
Written Statement or after framing of the issues. According to the defendants
these documents were not in possession and after receipt of certified copy,
these are being filed, whereas the counsel for the plaintiffs have pointed out that
the defendants have already obtained the certified copy of these documents
before filing the Written Statement. The defendants were party in all these
revenue proceedings before the Revenue Court. In case of Sugandhi (supra)
the defendants filed the application for taking documents on record which
recently tressed by them. The Apex Court has found that in the application,
cogent reasons were assigned for not producing the documents alongwith
Written Statement but in this case the defendants have not assigned any cogent
reason, therefore, the application has rightly been dismissed. However in the list
of documents filed alongwith Written Statement and present list filed under
Order 8 Rule 1 of C.P.C. only two documents are common, therefore, certified
copy of these two documents are liable to be taken on record.
[8] Thus, Misc. Petition is partly allowed. Certified copy of documents
filed alongwith an application under Order 8 Rule 1 of C.P.C. is allowed only in
respect of those documents which are in the index filed on 15.09.2021.
(VIVEK RUSIA)
JUDGE
Praveen
