Dismissed

Smt. Kamla v. A.D.J. Sumerpur and Anr.

Rajasthan HC21 Jul 2015CW/5262/2015

Case brief

AI extract

What is this about?

In this writ petition challenging an order rejecting an application under Order VIII, Rule 1A CPC to produce primary evidence, the High Court dismissed the plea. The Court held that the petitioner exhibited doubtful conduct by vacillating on the source of the rent note document across multiple applications, justifying the trial court's refusal.

What did the court decide?

The writ petition was dismissed, upholding the impugned order of the trial court rejecting the application to take the rent note on record.

Smt. Kamla Vs A.D.J. Sumerpur and Anr. — Civil Procedure and Limitation | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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: O R D E R :

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S.B. CIVIL WRIT PETITION NO.5262/2015

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Smt. Kamla V/s. Addl. District Judge, Sumerpur & Anr.

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Date of Order ::17.7.2015

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PRESENT

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HON'BLE MR. JUSTICE ARUN BHANSALI

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Mr. V.D. Gaur, for the petitioner/s.

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BY THE COURT:

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This writ petition has been filed by the petitioner aggrieved against the order dated 10.3.2015 passed by the trial court, whereby the application filed by the petitioner under Order VIII, Rule 1A CPC has been rejected.

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The respondent-plaintiff filed a suit for possession; after the evidence of the plaintiff was over, the petitioner filed an application dated 1.11.2014 under Order VIII, Rule 1A CPC. Alongwith the said application a photocopy of rent note was filed with the averments that the same was made available to her by Yaseen Khan, her tenant; the application was rejected by the trial court by its order dated 13.11.2014, the same being a copy only.

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Whereafter, the petitioner filed an application under Order XLVII, Rule 1 CPC seeking review of the order dated 13.11.2014

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with the averments that when the petitioner took all the documents lying with her to her counsel, the original rent note was found therein and therefore, the order dated 13.11.2014 needs to be reviewed. However, the application seeking review was withdrawn.

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Whereafter, the present application was filed by the petitioner with the averments that the original rent note has been made available to her by Yaseen Khan and therefore, the same be taken on record.

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The application filed by the petitioner was opposed by the respondent-plaintiff, inter-alia, on the ground that the petitioner has given three different versions regarding the rent note at three different places and therefore, the documents being wholly doubtful cannot taken on record.

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The trial court by the order impugned after noticing the said aspect and on finding that it was not clear as to in whose possession the document was and that in reply to the notice dated 23.7.2010, it was not disclosed by the petitioner that the property in question was on rent, rejected the application.

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It is submitted by learned counsel for the petitioner that the trial court committed error in dismissing the application filed by the petitioner. It was submitted that the petitioner has specifically indicated in her written statement regarding property being on rent with Yaseen Khan; as soon as the document become available to the petitioner, the same was produced by the petitioner. It is submitted that the document is fundamental

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to the defence of the petitioner and therefore, the trial court committed error in dismissing the application filed by the petitioner.

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I have considered the submissions made by learned counsel for the petitioner and have perused the material placed on record.

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A bare look at the written statement filed by the petitioner reveals that the petitioner has specifically averred in the written statement that the shop was on rent with Yaseen Khan and it was also indicated that a copy of the rent note is being filed. However, it appears that the rent note was not produced and whereafter the application dated 1.11.2014 was filed inter-alia indicating that the rent note was made available by Yaseen Khan, which application was rejected.

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In the review filed by the petitioner, a plea was taken that the original was found in the papers of the petitioner herself and therefore, the order dated 13.11.2014 be reviewed. However, the said application was withdrawn.

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Whereafter, the present application was filed and therein again a new submission was made that the document in original was made available by Yaseen Khan. The entire conduct of the petitioner in first indicating in the written statement that she was filing copy of the rent note, then filed application under Order VIII, Rule 1A CPC claiming to have received a copy from Yaseen Khan, filing review petition with the a plea that original was found in her papers and thereafter filing the present petition

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reverting back again to the same plea that the document is made available by Yaseen Khan shows that the petitioner herself is not very sure as to the source of the document and has been vacillating in her stand in this regard, which has been held to be a doubtful conduct on part of the petitioner by the trial court. The observations of the trial court in the facts and circumstances of the case cannot be said to be baseless.

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The petitioner has failed to explain the said vacillating stand in her applications from time to time and therefore, the finding recorded by the trial court cannot be faulted.

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There is no substance in the writ petition, the same is, therefore, dismissed.

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(ARUN BHANSALI), J.

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rm/48

Smt. Kamla v. A.D.J. Sumerpur and Anr.

Case brief

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Smt. Kamla v. A.D.J. Sumerpur and Anr.

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