Gopi Das And Ors vs Jitendra Yadav And Ors

Heard learned counsel for the petitioners and learned counsel for the respondents.

The present petition has been filed for the following reliefs --

“i) For setting aside the order dated 21.02.2017 passed by Sub Judge-I, Arwal in Title Suit No. 130 of 2009 as contained in Annexure-4

whereby and whereunder the learned Court has refused the prayer of the petitioners for recalling the order dated 07.02.2017 whereunder

the learned Court has closed the evidence of the petitioners on the prayer being made by the respondents that too behind the back of the

petitioners.

ii) Pending disposal of the instant application stay the further proceeding of the Title Suit No. 130 of 2009 pending in the Court of Sub

Judge-I, Arwal.

iii) Any other relief(s) to which the petitioners is found entitled to for giving complete justice to the petitioner.â€​

Learned counsel for the petitioners submits that the learned Court below has failed to exercise jurisdiction vested in it and ought to have recalled the

order dated 07.02.2017 as sought on behalf of the defendants/petitioners. Reference is invited to the said order which contains obvious insertion and

overwriting. It appears that the case was adjourned for the defendants’ evidence, but as an afterthought, the same was changed through

overwriting and the case posted for argument. It is submitted that the matter has not proceeded thereafter and as such no prejudice will be caused to

the plaintiffs/respondents if the defendants are granted time to lead evidence by way of Commissioner’s report etc.

Learned counsel for the plaintiffs/respondents appears and opposes the petition, submitting that the ground raised by the defendants/petitioners is a

new one and was not agitated before the learned Court below.

Having heard the parties and on consideration of the materials on record, this Court is of the view that the learned Court below has erred in

rejecting the prayer of the defendants/petitioners on the ground that the petition therefor was not maintainable, without however assigning any reason

whatsoever for such view. The impugned order has therefore, been passed in a vague and cryptic manner and is a non-speaking order. Considering

the stage of progress of the trial no serious prejudice will be caused to the plaintiffs/ respondents if the defendants/petitioners are granted opportunity

to lead evidence for just decision in the case.

Accordingly, the impugned order dated 21.02.2017 is hereby quashed and the defendants/petitioners are granted three months’ time to adduce

evidence from the date of receipt/production of a copy of this judgment.

The petition stands allowed as above.