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Judgment
Matter comes up on the 2nd stay application. With the consent of learned counsel for the parties, arguments have been heard and the matter is being
decided finally at this stage.
This writ petition has been filed by the petitioner- defendant (hereinafter referred to as 'the defendant') against the order dated 20.10.2011 passed by
the Trial Court in Civil Suit No. 166/2001, whereby the application filed by the defendant under Order 8 Rule 1A (3) CPC has been dismissed.
Facts of the case are that the respondents-plaintiffs (hereinafter referred to as 'the plaintiffs') filed two suits : the first, for permanent and mandatory
injunction; and the second for cancellation of the sale deed and permanent injunction before the Trial Court. The Trial Court vide its judgment and
decree dated 18.11.2005 dismissed both the aforesaid suits. Aggrieved therefrom the plaintiffs filed regular appeal before the District Judge. During
the pendency of the appeal, the plaintiffs filed an application under Order 41 Rule 27 CPC for taking the sale deed 30.8.1988 on record. The Appellate
Court vide its order dated 29.9.2009 allowed the application under Order 41 Rule 27 CPC, set-aside the impugned judgment and decree dated
18.11.2005 passed by the Trial Court and took the sale deed dated 30.8.1988 on record, subject to the payment of the cost of Rs. 2000/- and
remanded both the aforesaid suits to the Trial Court with the direction that in case the amount of cost is deposited by the plaintiffs on the next date,
sale deed dated 30.8.1988 be taken on record and after recording the evidence of both the parties in this regard, decide the matter afresh after hearing
arguments of both the parties without being influenced by its earlier judgment. During the pendency of the suits, the defendant filed an application
under Order 8 Rule 1A (3) CPC for taking the certified copies of certain documents on record. The plaintiffs filed reply to the said application. The
Trial Court vide its order dated 20.10.2011 dismissed the defendant's application under Order 8 Rule 1A (3) CPC. Hence, this writ petition.
Learned counsel for the defendant submits that due to sudden death of defendant's nephew, he could not obtain copies of certain documents. Some of
the documents viz. Jamabandi and affidavit were inadvertently left out at the time of framing the issues, certified copies of which he wanted to
produce and mark exhibit before his cross-examination. He has further submitted that the defendant has obtained the certified copy of the Index,
which shows that the photostat copy of the aforesaid documents were filed in the temporary injunction application. He has further submitted that when
the documents are already on record and there is no delay in filing the same, learned Trial Court ought to have allowed the application under Order 8
Rule 1A (3) CPC.
Learned counsel for the plaintiffs defended the impugned order and stated the same to be just and proper. He submits that the matter was remanded
by the Appellate Court with the direction that in case the amount of cost is deposited by the plaintiffs on the next date, sale deed dated 30.8.1988 be
taken on record and after recording the evidence of both the parties in this regard, decide the matter afresh after hearing arguments of both the parties
without being influenced by its earlier judgment. Learned counsel further submits that in this view of the matter, when the matter was remanded by
the Appellate Court with the direction to the Trial Court to decide the matter afresh qua sale deed dated 30.8.1988, there was no occasion with the
Trial Court to take on record the documents sought to be taken on record by the defendant.
Heard. Considered.
It is admitted fact that Appellate Court vide its order dated 29.9.2009 remanded the matter to the Trial Court with the direction that in case the amount
of cost is deposited by the plaintiffs on the next date, sale deed dated 30.8.1988 be taken on record and after recording the evidence of both the
parties in this regard, decide the matter afresh after hearing arguments of both the parties without being influenced by its earlier judgment. In this view
of the matter, the Trial Court was directed to decide the matter afresh qua the sale deed dated 30.8.1988 and no new document could have been
taken on record. When photostat copies of the documents were already available with the defendant, he should have produced the certified copy of
the same in the suit at the earlier stage and not after remand.
In this view of the matter, I am in agreement with the findings arrived at by the Trial Court in its order dated 20.10.2011.
For the aforesaid reasons, there is no reason for this court to interfere with the impugned order in the exercise of its supervisory jurisdiction under
Article 227 of the Constitution of India.
The petition fails and the same is dismissed. Consequent upon the dismissal of the writ petition, Ist and IInd stay application do not survive and the
same stand dismissed accordingly.