HIGH COURT OF MADHYA PRADESH BENCH AT INDORE (Mohan Singh Vs. Punibai & Another)

M.P.No.986/2017 INDORE

02.01.2018 Shri Sidharth Jain, learned counsel for the petitioner.

The petitioner has filed the present petition being aggrieved by the order dated 30.10.2017 by which application under Order 13 Rule 10 read with Section 151 of CPC filed by the plaintiff has been allowed.

Facts of the case, in short, are as under:

The respondent No.1/plaintiff filed the suit for declaration, possession and mesne profit against the petitioner. Pleading in the plaint is that respondent No.1 is wife of the petitioner but they are separated. The petitioner had sold her the suit property and put her into the possession but he was cultivating the land on her behalf. Now, when she demanded the possession of the suit property from the petitioner, for her 21 years old son then he refused, therefore, she filed the suit.

The present petitioner filed the written statement denying the allegations made in the plaint and he has also specifically denied the execution of the sale deed dated

29.01.1987.

The plaintiff has obtained the certified copy of the said sale deed from the office of the Sub-Registrar (Stamp) and produced in the suit and in order to prove it as the Secondary evidence, she filed an application for summoning the original record from the office of the Sub- Registrar (Stamp). By order dated 25.04.2014, the said application was allowed. The Record Keeper came with the record in the Court on several occasions, but the document could not be marked as exhibit. Meanwhile, the plaintiff has closed her evidence on 14.09.2016 and case was fixed for defendants' evidence. During the defendants' evidence, the defendants filed an application under Section 151 of the CPC that the plaintiff be not permitted to call the Record Keeper for exhibiting the certified copy of the sale deed. The plaintiff has also filed an application under Section 151 on 21.07.2017 seeking such permission.

Learned Trial Court vide order dated 30.08.2017 has decided both the applications and held that the document cannot be exhibited during the evidence of the defendant because same is not permissible under the law.

Thereafter, the plaintiff filed application under Order

13 Rule 10 of the CPC for summoning the Register to prove the thumb impression of the defendant over the sale deed dated 29.01.1987. The said application was opposed by the defendant on the ground that the application under Section 151 of the CPC for similar relief has already been rejected by the Trial Court, therefore, by applying the principle of res-judicata, the application is liable to be rejected. By the impugned order, the learned Trial Court has allowed the application, hence, the present petition.

I have heard Shri Sidharth Jain, learned counsel for the petitioner.

While allowing the application under Order 13 Rule

10 of the CPC, the Trial Court has observed that the second application is not barred by the principle of res- judicata and for effective disposal of the case, it is necessary to summon the record from the office of Deputy Registrar (Stamp).

That the learned Trial court vide order dated

25.04.2014 had already directed to summon the record from the office of Deputy Registrar to prove the certified copy of the sale deed. That on number of occasions, the Record Keeper came with the record but he could not be examined and document could not be exhibited. A similar application under Section 151 of the CPC was decided at the stage of defendants' evidence because at that time, it was not permissible to mark the document as exhibit. When the order has already been passed for summoning the record from the office of Deputy Registrar way back in the year 2014 and that order has attained finality. Learned Trial Court has not committed any error while allowing the application under Order 13 Rule

10 read with Section 151 of the CPC.

Even otherwise, the scope of interference in exercise of jurisdiction under Article 227 of