Prahlad Gupta vs Ghanshyam And Ors

By this writ petition filed under Article 227 of the Constitution of India, the petitioner-plaintiff (hereinafter referred to as ""the plaintiff"") has challenged

the order dated 22.10.2018 passed by the Trial Court, whereby the Trial Court dismissed the plaintiff's application for summoning two witnesses

namely Ganga Prasad Gupta and Om Prakash Gupta, in evidence in rebuttal.

Learned counsel for the plaintiff submits that the plaintiff filed a suit for partition and permanent injunction. The respondents-defendants (for short, 'the

defendants') put in appearance and filed the written statement. During the pendency of the suit, the Trial Court took on record photostat copy of

receipt and two sale deeds, filed alongwith the affidavit of witness Shyam Lal. The scribe of receipt dated 8.10.1990 was Om Prakash Gupta and

scribe of the sale deeds was Ganga Prasad Gupta respectively. The evidence of aforesaid two witnesses was necessary to prove the aforesaid two

documents, therefore, the plaintiff filed an application for summoning these two witnesses, in evidence in rebuttal, but the trial court dismissed the

same on flimsy grounds. Learned counsel further submits that the said documents were not in power and possession of the plaintiff, but were

produced by witness Shyam Lal on 15.5.2018 and in this view of the matter, it was necessary to prove the said documents by summoning the scribes

of the said documents. Application in that regard was immediately filed on 20.8.2018, which ought to have been allowed, moreso in view of the fact

that objection of the defendants in regard to taking the said documents on record had already been rejected by the trial court vide order dated

26.9.2017. He further submits that the plaintiff is ready to produce the aforesaid witnesses at his own for their examination in rebuttal evidence.

On the other hand, learned counsel for the defendants resisted the petition and contended that ample opportunity had already been granted to the

plaintiff for producing rebuttal evidence. It was in the notice of the plaintiff that the Om Prakash Gupta and Ganga Prasad Gupta were the scribes of

receipt and sale deeds respectively at the time when they were produced by Shyam Lal, but at the relevant point of time, the application was not filed.

The application was filed belatedly with a view to delay the proceedings in this case. Hence, the writ petition is liable to be dismissed.

I have considered the submissions made by the learned counsel for the parties and perused the impugned order 22.10.2018 with other documents

annexed with the writ petition. No doubt that sufficient opportunities were given to the plaintiff at the stage of rebuttal evidence, but since vide its

order dated 26.9.2017 passed by the Trial Court, both the documents were taken on record, therefore, to prove the same, their scribes were required

to be examined.

Taking into considering the overall facts and circumstances of the case, the trial court is found to have committed patent illegality while passing the

impugned order dated 22.10.2018.

For the aforesaid reasons, the writ petition is allowed. Thus, the impugned order 22.10.2018 passed by the trial Court is set aside; the application filed

by the plaintiff is allowed and the plaintiff is permitted to produce witnesses Om Prakash Gupta and Ganga Prasad Gupta at his own for their

examination in rebuttal evidence, on payment of cost of Rs.25,000/-, out of which Rs. 12,500/- will be deposited in Rajasthan State Legal Services and

rest Rs. 12,500/- will be paid to the defendants on or before the next date fixed in this matter, failing which, the aforesaid witnesses shall not be

examined in rebuttal evidence. In the event the cost, as aforesaid, is paid by the plaintiff to the defendants, the Trial Court shall examine the aforesaid

witnesses in rebuttal evidence on 15.3.2021.

Needless to say that the defendants will be free to raise a plea with regard to admissibility of the aforesaid documents before the trial court at the

appropriate stage.

Consequent upon the disposal of the writ petition, interim order 17.12.2018 stands vacated and the pending applications, if any, also stands disposed of.

Registry is directed to send a copy of this order to the concerned Presiding Officer for his information and compliance.