Ajay Shukla v. Sunny Sendo

HIGH COURT OF CHHATTISGARH, BILASPUR WP227 No. 679 of 2018 Ajay Shukla S/o Shri Sudama Prasad Shukla Aged About 48 Years R/o Green Park Colony, Bilaspur, Tehsil & District Bilaspur Chhattisgarh. (Plaintiff).

--- Petitioner

Versus

1. Sunny Sendo S/o Late Shri Sharnagat Sendo, Aged About 38 Years R/o Nature City, Takhatpur, Tehsil Takhatpur, District Bilaspur Chhattisgarh.

2. Smt. Upma Agrawal W/o Shri Mahesh Prasad Agrawal, R/o Yadunandan Nagar, Tifra, Bilaspur, Tehsil And District Bilaspur Chhattisgarh.

3. Nagar Palik Nigam Bilaspur, Through Commissioner, Nagar Palik Nigam Bilaspur, Tehsil & District Bilaspur Chhattisgarh. (Defendants), --- Respondent For the Petitioner :

Mr. Achut Tiwari, Advocate Hon'ble Shri Justice Goutam Bhaduri Order on Board 08.08.2018

1. The instant petition is against the order dated 18.07.2018 passed by the I Addl. District Judge, Distt. Bilaspur in Civil Suit No.145-A/2010 whereby the application to call the witness i.e., Estate Officer, Municipal Corporation to show the mutation has been dismissed on the ground that the petitioner has not enlisted the witness in the list of witnesses and further the application which was later filed was considerably delayed. The court has observed that on earlier occasion before the application to call the witness was moved, no such disclosure was every made about the said witness.

2. Learned counsel for the petitioner would submit that still the

case is pending for adjudication and it is at the stage of plaintiff's evidence. It is further contended that the suit is for cancellation of the sale deed dated 15.05.2008 and the subsequent mutation in respect of the suit house which would be relevant in this case to prove the contention of the plaintiff and no prejudice would be caused to the other side and to decide the issue, evidence of the said witness would be necessary.

3. Perused the order dated 18.07.2018 which would go to show that the petitioner filed an application to call for the Estate Officer Municipal Corporation to prove the mutation document in between the year 2006 and 2009. A perusal of the plaint shows that it is for cancellation of the sale deed and the suit for specific performance on the basis of the prior agreement entered into between the plaintiff and father of respondent No.1 on 30.12.2006. The order also reflects that the case is pending for evidence and 9 dates were given to the plaintiff to get the witness examined. On 07.07.2018 an application was filed to get the Bank Officer examined which was allowed and the case was fixed for 17.07.2018 and he was examined.

Thereafter, the Court has observed that earlier the plaintiff was given sufficient opportunity for adducing evidence and he has not filed any list of witnesses and on 08.12.2017 when the plaintiff was asked he did not state that any proposed witness to be examined nor assigned any reason for not filing the application earlier. The order sheet reflects that the case is further fixed for defendants evidence. It is stated by the counsel that evidence of the defendant has not commenced.

4. Considering the nature of dispute as it pertain to cancellation of sale deed and claiming the specific performance of the same property, for which, a sale deed was executed subsequently and in order to ascertain the nature and conduct of the parties, the evidence of the proposed witness may be necessary especially when the evidence of defendant has not commenced. Under the circumstances, in order to advance the cause of justice on merits, the petition is allowed subject to payment of costs of Rs.1500/- each defendant i.e., respondents 1 & 2. Accordingly, the application to call witness i.e., Estate Officer, Municipal Corporation is allowed. Necessary P.F., and the diet money be deposited and thereafter summons may be issued to procure his attendance before the Court.

5. With the above observation, this petition is allowed. Sd/- GOUTAM BHADURI JUDGE R a o