The Patna High Court dismissed a writ petition seeking recall of closure of evidence in a partition suit. The court held that the application was filed late to harass the defendant and noted the error was none in impugned order.
The petition was dismissed as an effort to harass the defendant by filing late.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4635 of 2012
====================================================== 1. Arun Kumar S/O Late Madho Mahto, R/O Village- Koeribigha, P.S.Belaganj, District- Gaya .... .... Petitioner/s Versus 1. Pratima Devi W/O Rakesh Kumar, D/O Late Madho Mahto R/O VillageManjhosh, Tola- Chamabigha, P.S.- Makhdumpur, District- Jehanabad 2. Laxminia Devi W/O Late Madho Mahto, R/O Village- Koeribigha, P.S.Belaganj, District- Gaya 3. Akhilesh Chaudhary S/O Mangal Chaudhary, R/O Village- Koeribigha, P.S.- Belaganj, District- Gaya 4. Nanhe Chaudhary S/O Mangal Chaudhary, R/O Village- Koeribigha, P.S.- Belaganj, District- Gaya 5. Arvind Chaudhary S/O Mangal Chaudhary, R/O Village- Koeribigha, P.S.- Belaganj, District- Gaya 6. Radhey Shyam Singh S/O Late Madho Mahto, R/O Village- Koeribigha, P.S.- Belaganj, District- Gaya .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Anil Kumar Saxena For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER
2 30-04-2012 Heard learned counsel for the petitioner.
In this case, the plaintiff is the petitioner who has filed an application under Order 26 Rule 10 (2) read with section 151 Code of Civil Procedure to examine the Survey Knowing Pleader Commissioner after condoning the delay and to recall the order of the closure of evidence.
In this case, earlier Partition Suit No. 22/1994 was field in which the present petitioner was a defendant. The Partition Suit was decided on 7.7.1992. Accordingly the preliminary decree was prepared. The defendant-respondent filed an application for preparation of the
Patna High Court CWJC No.4635 of 2012 (2) dt.30-04-2012
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final decree. In pursuance thereof the Survey Knowing Advocate Commissioner was appointed who has submitted his report and accordingly a final decree was prepared. Thereafter, the petitioner filed Title Suit No. 381 of 2007 against the defendant making a prayer for declaration of final decree of Partition Suit No. 22 of 1994 which was passed by Munsif-III, Gaya which allowed a separate Takhta of the Joint family properties in favour of Partima Devi is completely wrong illegal and has been obtained on the basis of collusive report of the Pleader Commissioner.
The court below considered the fact that the petitioner was required to file objection to the report submitted by the Advocate Commissioner. If the petitioner was not satisfied with final decree then he had an opportunity to challenge the same in the appeal and failure to do the same cannot be a ground for filing the present suit, so much so that the application has been filed at the final argument stage when the defendant argument concluded and the plaintiff argument was to begin. The court has come to a finding that filing of application is nothing but to harass the defendant and accordingly, this petition was rejected.
I do not find any error in the order impugned. Accordingly, this petition is dismissed.
Mahesh/-
(Shivaji Pandey, J)
2 issues framed by the court
Whether the petitioner while being dissatisfied with the final decree could file an application seeking recall of closure of evidence at the final argument stage.
Whether the present application is nothing but a device to harass the defendant.
2 provisions across 1 enactments
Arun Kumar
Pratima Devi
Laxminia Devi
Akhilesh Chaudhary
Nanhe Chaudhary
Arvind Chaudhary
Shivaji Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
