IN THE HIGH COURT OF JHARKHAND AT RANCHI

C. M. P. No. 39 of 2022

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Kartik Singh Munda

… ….

Petitioner

Versus

1. Lakhimani Devi

2. Sukhdeo Singh Munda

3. Deputy Commissioner, Ranchi

… ….

Opp. Parties

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Petitioner

: M/s M.N. Sinha & D.K. Prasad, Advocates

For Opp. Party no. 1 : Mr. Birendra Kumar, Advocate

For the State

: Mr. Aishwarya Prakash, AC to SC (Mines)-I

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Oral Order

05 / Dated : 15.12.2022

1.

The instant civil misc. petition has been filed under Article 227 of the

Constitution of India for quashing the order dated 13.03.2020 passed by learned

AJC-XV, Ranchi in Civil Appeal No. 103 of 2018 arising out of judgment dated

30.07.2018 and decree dated 14.08.2018 passed in Title Suit No. 90 of 2014

whereby and where under, the appellate court has dismissed the petition filed by

the petitioner under Order XLI Rule 27(aa) & (b) read with Section 151 of

C.P.C. for production of certified copy of plaint and order sheet of one earlier

suit earlier filed by respondent no. 1 against the petitioner.

2.

The petitioner Kartik Singh Munda is the defendant no.1in earlier

Title Suit No. 90 of 2014 filed by Plaintiff Lakhimani Devi (OP no.1) for

cancellation of adoption deed which was decreed in favour of the plaintiff.

Against the dismissal of the suit, the petitioner preferred Civil Appeal No. 103

of 2018 in which the petition for adducing additional evidence was filed which

has been rejected against which the present petition has been filed.

3.

The petitioner sought to adduce into evidence the certified copy of the

plaint of earlier Title Suit No. 104 of 2012 filed by the plaintiff-opposite party

no. 1 for the same cause of action was dismissed for non-prosecution and had

attained finality. These facts had been specifically pleaded in para-21 of the

written statement. It was for this reason that the petitioner/appellant filed the

petition under Order XLI Rule 27 C.P.C. for adducing into evidence the plaint

of the earlier suit filed by the plaintiff which has been rejected. Further, the

earlier plaint was also required to bring inconsistency and contradiction in the

averment made in both the suits ie TS104/12 and TS 90/12. Reliance has been

placed on Jayaramdas & Sons v. Mirza Rafatullah Baig, (2004) 10 SCC 507 :

9. As already pointed out, both the sets of documents are certified copies of

public documents. The appellants would not ordinarily suspect or doubt the

documents where the certified copies of public documents were secured

from the public officer having the custody of such public documents. It is

only when it came to their knowledge that the certified copies were at

variance with the originals or were not complete copies that they thought of

securing another set of certified copies and then seeking leave of the court

for producing the certified copies obtained by them as an additional

evidence in the appellate court. The case of the appellants for production of

additional evidence falls within clause (aa) of sub-rule (1), abovesaid.

4.

Learned counsel for opposite party no. 1 submits that earlier the suit

was dismissed for default and the present case is not maintainable and will

be hit by res-judicata. Reliance has been placed on State of U.P. v. Jagdish

Sharan Agrawal, (2009) 1 SCC 689 which involved a case where the suit had

been dismissed not on merit but on technical ground. So far the suit where the

State was a party and amendments were made, the same was dismissed for non-

prosecution. But the same was not dismissed under Order 9 Rule 8. Order 9

Rule 8 and Order 9 Rule 9 CPC read as follows:

“8. Procedure where defendant only appears.—Where the defendant

appears and the plaintiff does not appear