JUDGMENT :

1. This petition filed under Article 227 of the Constitution of India takes exception to the order dated 29-11-2022 (Annexure P/6) passed in Civil Suit (RCS No. 10/2022) whereby application preferred by the petitioner/plaintiff under Order 16, Rule 1(3) of the Code of Civil Procedure 1908, (CPC) was dismissed by the Court below.

2. Draped in brevity, the admitted facts are that the petitioner/plaintiff instituted a suit for declaration and permanent injunction. It is prayed that the sale deed dated 25-3-2019 be declared as null and void. In turn, the respondents/defendants entered appearance.

3. During the pendency of the said suit and at the stage matter was pending before the Court below for plaintiff’s evidence, the petitioner filed application under Order 16, Rule 1(3) read with section 151 of CPC on 22-11-2022. The defendants filed their reply on 26-11-2022. The petitioner/plaintiff filed his written submission on 28-11-2022.

4. After hearing the parties on this interlocutory application, the Court below has passed the order dated 29-11-2022 and rejected the said application.

Contention of Petitioner :

5. Learned counsel for the petitioner/plaintiff submits that no doubt the petitioner/plaintiff on previous occasion had opportunity to file the instant application. It is also true that the petitioner/plaintiff previously filed an application under Order 16, Rule 2 of CPC on 29-8-2022 for introducing Kumari Kavita Hasananand and Suresh Belaram as plaintiff witness but fact remains that the pleadings of the plaint particularly paragraph 5(v) onwards makes it clear that the petitioner/plaintiff has sufficient foundation and reason for preferring the application under Order 16, Rule 1 of CPC. Dr. Nilesh Kinge is MD Medicine and DM Neurology of Brain Hospital, M.K.J. College Ground, Jalgaon, Maharashtra. The said witness is relevant to establish and substantiate the pleadings mentioned in paragraph 5(v) and 5(c) of the plaint. Similarly, the other witness is equally important. The Court below without considering the necessity of introduction of said witnesses, rejected the application on the ground of dilatory tactics which view of the Court below is hyper technical in nature.

6. The learned counsel for the petitioner placed reliance in the language employed under Order 16, Rule 2 and 3 of C.P.C. and urged that interest of justice demands that petitioner/plaintiff should be given adequate opportunity to introduce the relevant witnesses. The aforesaid witnesses mentioned in the application (Annexure P-3) deserve to be requisitioned by the Court below. The Court below without examining the relevance and requirement of said witnesses, rejected it on mechanical grounds which runs contrary to law laid down by this Court. Raghuraj Singh and others vs. Kedar Singh and others, Mansingh (deceased) Through L.Rs. Smt. Sumranbai and others vs. Rameshwar, I.L.R. (2010) M.P. 1077, Ramsiya vs. Anuradha and others, 2016 SCC OnLine MP 1258 and Mandir Shri Hanuman Murti and another vs. Collector Mahoday, Datia and another, were relied upon in support of above contentions. Stand of Respondent No. 1 :

7. Shri V. S. Choudhary, learned counsel for the respondents supported the impugned order and urged that Court below has passed a detailed order and even considered certain judgments of this Court.

8. The Court below has considered the conduct of the petitioner/plaintiff wherein he consumed sizable amount of time and dates but did not earlier prefer appropriate application under Order 16, Rule 2 of C.P.C. The plaintiff even assigned unjustifiable reason relating to “Shradh” of his wife. For these accumulative reasons, Court below has rejected the application which cannot be said to be illegal or improper.

9. The parties confined their arguments to the extent indicated above.

10. I have heard the parties at length and perused the record.

Findings :

11. The aforesaid stand of parties makes it clear that there is no quarrel on the point that civil suit is