Rajasthan High Court
Bhajan Lal S/O Govind Ram vs Radheyshyam Sharma S/O Nathulal ... on 1 July, 2022
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 6581/2022
Bhajan Lal S/o Govind Ram, Aged About 50 Years, R/o Village
Kapadiyavaas, Tehsil And District- Jaipur.
----Petitioner/Plaintiff/Non-Applicant
Versus
1. Radheyshyam Sharma S/o Nathulal Sharma, R/o Manda
Bheem Singh, Tehsil - Fulera, District Jaipur.
2. Gopal Lal S/o Shri Ghasiram, R/o Hatoj, Tehsil And
District Jaipur (Deceased During Trial Dated 20.03.2011)
2/1. Shrimati Prem Devi W/o Late Shri Gopal Lal, Aged About
73 Years, R/o Hatoj, Tehsil And District Jaipur.
2/2. Sita Devi D/o Late Shri Gopal Lal, Aged About 35 Years,
R/o Hatoj, Tehsil And District Jaipur.
2/3. Geeta Devi D/o Late Shri Gopal Lal, Aged About 33 Years,
R/o Hatoj, Tehsil And District Jaipur.
2/4. Phool Chand S/o Late Shri Gopal Lal, Aged About 31
Years, R/o Hatoj, Tehsil And District Jaipur.
2/5. Anita D/o Late Shri Gopal Lal, Aged About 29 Years, R/o
Hatoj, Tehsil And District Jaipur.
2/6. Bugali D/o Late Shri Gopal Lal, Aged About 27 Years, R/o
Hatoj, Tehsil And District Jaipur.
2/7. Billu S/o Late Shri Gopal Lal, Aged About 23 Years, R/o
Hatoj, Tehsil And District Jaipur.
3. Arjun Palsaniya S/o Shri Sadhuram, Age- Major, R/o
Maheshwaas Khurd, Tehsil Amer, District Jaipur.
Performa-Respondents-Defendants No.1 to 3
4. Arjun Singh Dhayal S/o Harbax Choudhary, Aged About
64 Years, R/o House No.9 Vikas Nagar, Kalwar Road,
Jhotwara, Jaipur.
----Contesting-Respondent-Defendant No.4-Applicant
For Petitioner(s) : Mr. Gaurav Sharma Saraswat
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
01/07/2022
(2 of 3) [CW-6581/2022]
This writ petition under Article 227 of the Constitution of
India has been preferred by the petitioner/plaintiff assailing the
legality and validity of the order dated 16.04.2022 passed by the
learned Civil Judge, Jaipur District, Jaipur whereby, while allowing
the application filed by the respondent No.4/defendant under
Section 151 CPC, he has been permitted to file additional affidavit
in his examination-in-chief.
The facts in brief are that in a suit filed by the petitioner for
permanent injunction, the learned trial Court was pleased, vide its
orders dated 01.10.2021 & 24.11.2021, to allow the applications
filed by the respondent No.4 under Order 8 Rule 1A(3) CPC and
documents appended with the applications were taken on record.
During the course of his examination, the respondent No.4 filed an
application for taking on record an additional affidavit seeking to
exhibit the documents taken on record, which has been allowed by
the learned trial Court vide its order dated 16.04.2022, subject
matter of challenge.
Assailing the order, learned counsel for the petitioner
contended that since the erstwhile provision under Order 18 Rule
17A CPC permitting such exercise has been deleted and hence, it
was not permissible for the learned trial Court to have allowed the
application filed by the respondent No.4 under Section 151 CPC
permitting additional affidavit to be taken on record. In support of
his submission, he relied upon the judgment of the Hon'ble Apex
Court of India in the case of K.K. Velusamy Vs. N. Palanisamy,
(2011) 11 SCC 275. He, therefore, prayed that the writ petition
be allowed and the order dated 16.04.2022 be quashed and set
aside.
Heard. Considered.
(3 of 3) [CW-6581/2022]
A perusal of the order dated 16.04.2022 reveals that the
learned trial Court has assigned cogent reasons while allowing the
application filed by the respondent No.4. It has been held by the
learned trial Court that vide its orders dated 01.10.2021 &
24.11.2021, while allowing the application filed by the respondent
No.4 under Order 8 Rule 1A(3) CPC, it has taken on record certain
documents and hence, it was in the interest of justice to permit
the respondent No.4 to exhibit the same as these were necessary
for just and effective disposal of the controversy involved in the
matter. This finding has not been assailed by the learned counsel.
Since, the orders dated 01.10.2021 & 24.11.2021 were passed
subsequent to the submission of the affidavit in evidence by the
respondent No.4, the learned trial Court permitted the additional
affidavit in examination-in-chief only to the extent of exhibiting
the documents taken on record vide orders dated 01.10.2021 &
24.11.2021. This Court finds no reason to interfere with the well
reasoned order passed by the learned trial Court in exercise of its
judicious discretion which advances the cause of justice.
This Court is in respectful agreement with the law laid down
by the Hon'ble Apex Court of India in case of K.K. Velusamy
(supra); but, it has no applicability in the facts and circumstances
of this case in as much as there is neither express nor any implied
provision in the Code of Civil Procedure barring taking additional
affidavit on record.
Resultantly, this writ petition is dismissed being devoid of
merit.
(MAHENDAR KUMAR GOYAL),J
Sudha/40
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