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Judgment
This writ petition is under Article 227 of the Constitution of India, whereby the order dated 16.12.2015 passed in Title Suit No.25 of 2002 has been assailed by which the petition filed by the petitioner/plaintiff dated 15.07.2015 for appointing a commission to prove the document as per the detailed furnished at paragraph 3 thereof, which is at Annexure-3 to the writ petition.
The brief facts of the case of the petitioner as per the pleading made in the writ petitioner is that a title suit has been filed by the petitioner/plaintiff for declaration of right and title in which the defendants have appeared and filed their written statement, the trial has proceeded after framing of the issues and reached to the stage of evidence. After closure of the plaintiff's evidence after the order dated 26.06.2015 the trial has reached to the stage of defendant witness and at that juncture a petition has been filed by plaintif on 15.07.2015 praying therein for appointment of commission to examine Murlidhar Poddar and Radhey Shyam Poddar in order to mark the exhibit on behalf of the plaintiff, the same has been objected by filing rejoinder wherein the stand has been taken that the order for appointment of commission is not worth to be considered in view of the fact that although Murlidhar Poddar and Radhey Shyam Poddar are well and hearty. The aforesaid petition, an order has been passed by the trial court on 16.12.2015 rejecting the petition on the ground that both Murlidhar Poddar and Radhey Shyam Poddar are well and hearty and not seems to suffer from any ailment and further the suit is of the year 2002 in which the issues have been framed and the plaintiffs witness has been closed on 26.06.2015 and as such the trial court has come to the conclusive finding that it will not be justifying in allowing the aforesaid petition, accordingly rejected the same against which the present writ petition has been filed.
It has been contended by Mr. Arun Kumar, learned counsel for the petitioner that the trial court has only considered the objection made on behalf of the defendant in the rejoinder wherein the statement has been made about the health of the witnesses and showing them hearty from the news published in daily newspaper.
It is evident from the order sheet that notices have been issued upon the respondent nos.1 and 2 vide order dated 20.07.2016, in pursuance thereto, Vakalatnama has been filed to represent the respondents but even after the same none appears for the respondents.
This Court after having heard the learned counsel for the petitioner and after going across the pleading made in the writ petition as also the petition dated 15.07.2015 and the finding recorded in the impugned order dated 16.12.2015, has found that title suit has been filed being Title Suit No.25 of 2002 in which the issues have been framed on 25.09.2006, plaintiffs' evidence have been closed on 26.06.2015, the petition was filed on 15.07.2015 for recall of the order of closure of the evidence of the plaintiffs by appointing commission to examine two witnesses on behalf of the plaintiffs namely Murlidhar Poddar and Radhey Shyam Poddar for marking document as exhibit which was filed by the plaintiff on 26.06.2015 but on the said date before filing of the petition the evidence of the plaintiff was closed. The document is the Deed of Batwaranama dated 15.10.1976 as well as deed of gift dated 04.03.1989. The reason has been stated for appointment of commission that both the witnesses are heart patient and are not in a position to come to Gumla and depose before the court and as such it is essential to issue commission for recording their cross examination.
This Court after going across the aforesaid petition in order to substantiate the stand taken by the plaintiff at paragraph 5 with respect to suffering of the witness from heart ailment but no such document has been filed for satisfying the trial court for passing an order of appointing commission.
It is not in dispute that the trial court has got power to appoint a commission but only on the basis of valid reason shown which is to be placed by the plaintiff or the defendant as the case may be.
It is further evident from the rejoinder that the serious objection has been raised by the defendant by referrig the daily newspaper dated 29.06.2015 in which the said Mahesh Kumar Poddar is shown healthy and hearty and was standing in open sky in the month of June to receive the Prime Minister and is also treasurer of Bhartiya Janta Party visiting all over the state of Jharkhand. Further the footage of C.C TV Camera has also been referred showing these witness as healthy and hearty.
The trial court after taking into consideration the aforesaid fact and considering the fact that the plaintiff has made statement without substantiating the said statement by annexing any prescriptions of treating doctor and therefore, there was no occasion for the trial court to disbelieve upon the stand taken by the defendant in the rejoinder.
The trial court has further considered the reason of the framing of the issues and the pendency of the suit which is of the year 2002 and as such rejected the said petition.
This Court, therefore, is of the view that while rejecting the said petition it cannot be said that any illegality has been committed by the trial court and in view thereof, this Court is not inclined to interfere with the impugned order.
Accordingly, the writ petition fails and is dismissed.