Wednesday, 5 June 2019

When court should not allow application for calling of original record?

The trial Court
has also observed that the certified copy of the documents are available
with the plaintiff since 25.09.2012 and first time he filed it before the
court on 25.01.2018. Since the plaintiff is in possession over the

property therefore, he is unnecessarily delaying the proceedings and
now he has filed the voluminous documents and seeking summoning of
the record to prove all these documents. Therefore, this Court is of the
opinion that it is not a fit case to interfere with the impugned order
under Article 227 of the Constitution of India.

HIGH COURT OF M.P. BENCH AT INDORE
M.P. No.5117/2018

(Rajesh Sharma V/s. Binod Mills & Ors.)

Indore dt. 26.10.2018
Citation: AIR 2019 (NOC) 143 (MP)



Heard on the question of admission.
2. The petitioner / plaintiff has filed the present petition, being
aggrieved by order dated 17.05.2018 and 25.09.2018, by which his
application under Order 13 Rule 10 of CPC, has been rejected.
3. The petitioner has filed a suit for declaration and permanent
injunction in the year 2011. The petitioner is seeking relief of
declaration of title over the house called Manik Bhawan, Shahid Park,
Freeganj, Ujjain area 1832.276 Sq fts., by way of adverse possession.
According to the plaintiff he is residing with his family in the said
house since 1950, peacefully and known to the actual owner of the suit
house, therefore, he has acquired the title by way of adverse possession.
Later on, by way of amendment, the petitioner has also challenged the
sale deed dated 04.07.1981, executed by defendant No.1 and sale deed
dated 05.12.1988, executed by defendant no.2 and further sale deed
dated 15.11.1988, 17.4.1989, 28.04.1989 and 30.10.2001 by the
defendant No.2.
4. On the pleading, the trial court framed 9 issues for adjudication
on 29.06.2013 and thereafter, a suit was fixed for plaintiff's evidence.
5. The plaintiff filed an application under Order 13 Rule 10 CPC,
seeking summoning of the record of civil suit No.11-A/2011 report of
Superintendent of Police dated 4/23.01.2018, FSL report gazette
notification dated 12.5.1988 and 11.11.1988. Thereafter, he filed
another I.A. under Order 13 Rule 10, seeking summoning of record in
respect of O.A.No.330/2000 from Debts Recovery Tribunal, Jabalpur.
The plaintiff has already filed a certified copy of these documents and

in order to prove them, he filed the aforesaid applications for
summoning the original record.
6. The aforesaid applications came up for consideration on
17.05.2018 and 25.09.2018 and the learned trial Court has rejected both
the applications. While rejecting the application, the learned trial court
observed that since 2013, the petitioner is taking time to submit
evidence and certified copy of the documents were available to him
since 29.05.2012 and today, the case is listed for evidence of the
plaintiff as on last occasion in order to delay the trial the plaintiff has
filed these applications. So far as the application for summoning of
record of the civil court No.11A/11 and record from the Superintendent,
Ujjain and the gazette notification are concerned, the court has observed
that the petitioner has failed to explain as to why these documents are
necessary.
7. I have heard Shri A.S. Kutumbale, learned Senior Advocate for
the petitioner and perused the record of the case.
8. Shri Kutumbale, learned Senior counsel for the petitioner submits
that the plaintiff must get full opportunity to establish his case. The
delay in trial ought not to have come in the way of adjudication of the
suit because the civil court is a fact finding court. The plaintiff has
challenged the various sale deeds executed by the defendants No.1 and
2 and in order to seek a declaration that the sale deeds are void, the
documents mentioned in the application are required to be proved by
way of summoning the original document.
9. It is correct that plaintiff must get ample opportunity to prove his
case before the fact finding court, but it is also required to be seen that
the Courts are flooded with the cases and have a limited time to
adjudicate them. The parties cannot take an undue adjournments in
order to waste the precious time of the court. In the present case, the
plaintiff has filed a suit for declaration of title by way of adverse

possession in the year 2011. The defendant immediately filed a written
statement and thereafter, the trial Court has framed the issues in the year
2013. Since 2013, the plaintiff is taking time to produce the evidence.
On various occasion, the trial court has granted opportunities by
imposing cost and when the case was fixed for plaintiff's evidence as a
last chance, he filed these two applications seeking summoning of the
record. The trial court has observed that the petitioner has not given any
reason as to why these documents are required to establish his title by
way of adverse possession. It is settled law that every order of the trial
court are not liable to interfere in the writ petition under Order 226/227
of the Constitution of India.
10. Even otherwise, the scope of interference in exercise of
jurisdiction under Article 227 of Constitution of India is limited.
The Supreme court in the matter of Shalini Shyam Shetty and
another Vs. Rajendra Shankar Patil, reported in (2010) 8 SCC
329 has held that High court in exercise of its power of
superintendence cannot interfere to correct mere errors of law or
fact or just because another view than the one taken by the
tribunals or courts subordinate to it, is a possible view. The High
court can exercise this power when there has been a patent
perversity in the orders of tribunals and courts subordinate to it or
where there has been a gross and manifest failure of justice or the
basic principles of natural justice have been flouted.
11. This court vide order dated 21.03.2018 in M.A.No.1893/2018,
has already directed the trial court to decide the suit within six months
and the said period has also been expired on 05.10.2018. The trial Court
has also observed that the certified copy of the documents are available
with the plaintiff since 25.09.2012 and first time he filed it before the
court on 25.01.2018. Since the plaintiff is in possession over the

property therefore, he is unnecessarily delaying the proceedings and
now he has filed the voluminous documents and seeking summoning of
the record to prove all these documents. Therefore, this Court is of the
opinion that it is not a fit case to interfere with the impugned order
under Article 227 of the Constitution of India.
12. The petition is accordingly, dismissed.
(VIVEK RUSIA)

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