Allowed

Abdul Sattar v. State of Rajasthan

Rajasthan HC9 Nov 2023CW/17847/2023

Case brief

AI extract

What is this about?

HC of Rajasthan allowed this writ petition setting aside impugned orders that rejected petitioners' application under Order XVIII Rule 17 CPC to recall an order closing evidence, permitting a fresh opportunity despite potential delay.

What did the court decide?

Impugned orders dated 24.08.2023 and 21.09.2023 set aside allowing petitioners one effective opportunity to adduce evidence before the court below.

Abdul Sattar Vs State of Rajasthan — Property and Title | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 17847/2023

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Abdul Sattar S/o Late Shri Haneef, Aged About 88 Years, By Caste Tak, R/o Kue Ke Pass, Makrana District Deedwana Kuchaman Through Power Of Attorney Holder Mujjafar Ali S/o Shokat Ali, Aged About 53 Years, R/o Near Kaji Ka Kua, Makrana, Tehsil Makrana, District Deedwana-Kuchaman (Raj.).

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Shokat Ali S/o Late Rahim Bux, Aged About 75 Years, By Caste Tak, R/o Kue Ke Pass, Makrana District Deedwana Kuchaman Through Power Of Attorney Holder Mujjafar Ali S/o Shokat Ali, Aged About 53 Years, R/o Near Kaji Ka Kua, Makrana, Tehsil Makrana, District DeedwanaKuchaman (Raj.).

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Abdul Shakoor S/o Late Shaikh Fareed, Aged About 73 Years, By Caste Tak, R/o Kue Ke Pass, Makrana District Deedwana Kuchaman Through Power Of Attorney Holder Mujjafar Ali S/o Shokat Ali, Aged About 53 Years, R/o Near Kaji Ka Kua, Makrana, Tehsil Makrana, District Deedwana-Kuchaman (Raj.).

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Abdul Salam S/o Late Shaikh Fareed, Aged About 69 Years, By Caste Tak, R/o Kue Ke Pass, Makrana District Deedwana Kuchaman Through Power Of Attorney Holder Mujjafar Ali S/o Shokat Ali, Aged About 53 Years, R/o Near Kaji Ka Kua, Makrana, Tehsil Makrana, District Deedwana-Kuchaman (Raj.).

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Abdul Jabbar S/o Late Shaikh Fareed, Aged About 58 Years, By Caste Tak, R/o Kue Ke Pass, Makrana District Deedwana Kuchaman Through Power Of Attorney Holder Mujjafar Ali S/o Shokat Ali, Aged About 53 Years, R/o Near Kaji Ka Kua, Makrana, Tehsil Makrana, District Deedwana-Kuchaman (Raj.).

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Riyaj Ahmed S/o Late Hamid, Aged About 69 Years, By Caste Tak, R/o Kue Ke Pass, Makrana District Deedwana Kuchaman Through Power Of Attorney Holder Mujjafar Ali S/o Shokat Ali, Aged About 53 Years, R/o Near Kaji Ka Kua, Makrana, Tehsil Makrana, District DeedwanaKuchaman (Raj.).

----Petitioners

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Versus

State Of Rajasthan, Through District Collector, Nagaur.

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Director, Mines And Geology Department, Udaipur.

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Mining Engineer, Mines And Geology Department, Makrana, District Deedwana-Kuchaman.

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Late Mohammed Umar, Through His Legal Representatives -

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4/1. Noor Mohammed S/o Late Mohammed Umar, Brahmano Ka Teeba, Makrana.

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4/2. Yahuna Tak S/o Late Mohammed Umar, Brahmano Ka Teeba, Makrana.

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4/3. Shokat Ali S/o Late Mohammed Umar, Brahmano Ka Teeba, Makrana.

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4/4. Usman Gani @ Chaina S/o Late Mohammed Umar, Brahmano Ka Teeba, Makrana.

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4/5. Mukhtar Ahmed S/o Late Mohammed Umar, Brahmano Ka Teeba, Makrana.

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4/6. Fatma D/o Late Mohammed Umar, Brahmano Ka Teeba, Makrana.

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4/7. Batula D/o Late Mohammed Umar, Brahmano Ka Teeba, Makrana.

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Late Shafi Mohammed, Through His Legal Representatives

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5/1. Nawab Ali S/o Late Shafi Mohammed, Deshwaliyo Ki Dhani, Makrana.

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5/2. Abdul Salam S/o Late Shafi Mohammed, Deshwaliyo Ki Dhani, Makrana.

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5/3. Naushad D/o Late Shafi Mohammed, Deshwaliyo Ki Dhani, Makrana.

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5/4. Sufiya D/o Late Shafi Mohammed, Deshwaliyo Ki Dhani, Makrana.

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5/5. Tasleem D/o Late Shafi Mohammed, Deshwaliyo Ki Dhani, Makrana.

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M/s Tak Marbel Mines, Makrana, Through His Partners Mohammed Yakub S/o Late Mohammed Ramjan, By Cate Tak, R/o Brahmano Ka Teeba, Makrana.

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Fayaj Ahmed S/o Late Abdul Gafoor, Brahmano Ka Teeba,

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Makrana.

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Noor Hasan S/o Abdul Gafoor, Brahmano Ka Teeba, Makrana.

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Late Abdul Rehman, Through His Legal Representatives - 9/1. Abdul Rashid S/o Abdul Rehman, By Caste Tak, R/o Kaji Kuan Ke Pass, Makrana, District Deedwana-Kuchaman, Rajasthan.

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9/2. Mohd. Rafique S/o Abdul Rehman, By Caste Tak, R/o Kaji Kuan Ke Pass, Makrana, District Deedwana-Kuchaman, Rajasthan.

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9/3. Jamil Ahmed S/o Abdul Rehman, By Caste Tak, R/o Kaji Kuan Ke Pass, Makrana, District Deedwana-Kuchaman, Rajasthan.

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9/4. Mohd. Salim S/o Abdul Rehman, By Caste Tak, R/o Kaji Kuan Ke Pass, Makrana, District Deedwana-Kuchaman, Rajasthan.

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9/5. Anwar Ahmed @ Munna S/o Abdul Rehman, By Caste Tak, R/o Kaji Kuan Ke Pass, Makrana, District DeedwanaKuchaman, Rajasthan.

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9/6. Mohd. Arif S/o Abudl Rehman, By Caste Tak, R/o Kaji Kuan Ke Pass, Makrana, District Deedwana-Kuchaman, Rajasthan.

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9/7. Firoj Alam S/o Abdul Rehman, By Caste Tak, R/o Kaji Kuan Ke Pass, Makrana, District Deedwana-Kuchaman, Rajasthan.

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9/8. Mohd. Irfan S/o Abdul Rehman, By Caste Tak, R/o Kaji Kuan Ke Pass, Makrana, District Deedwana-Kuchaman, Rajasthan.

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9/9. Imran S/o Abdul Rehman, By Caste Tak, R/o Kaji Kuan Ke Pass, Makrana, District Deedwana-Kuchaman, Rajasthan.

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Hazi Mustaq Ahmed S/o Late Abdul Gafoor, By Caste Tak, R/o Gunawati Road, Makrana, Tehsil Makrana, District Deedwana-Kuchaman. (Vide Order Dated -05.08.2022, The Suit Has Been Ordered To Be Abated In Respect Of Plaintiff Mustaq Ahmed As Same Was Established By Perusal Of Order Dated 05.08.2022 (Annexure-2).

----Respondents

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For Petitioner(s)	: Mr. Rishabh Shrimali.
For Respondent(s)	: ---

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HON'BLE MR. JUSTICE ARUN MONGA

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Order

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09/11/2023

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Petitioners (plaintiffs) seek setting aside of the order dated 21.09.2023 (Annex.8) passed by the learned Additional District Judge, Makrana, District Nagaur (for short, ‘the learned Court below’) in Civil Suit No.48/2010, whereby their application under Order XVIII Rule 17 CPC, for recalling of an earlier order dated 24.08.2023 (Annex.6) has been dismissed. By the earlier order dated 24.08.2023, the learned Court below had been closed the evidence of the petitioners.

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Succinct facts first, as pleaded in the instant writ petition.

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2.1 The petitioners filed a Civil Suit for declaration and permanent injunction in relation to Doongri Range of Makrana, Mine No.37/1. In the said suit, the plaintiffs sought relief, asserting that they may be declared bapidar of the aforementioned mine along with defendants No. 4 to 8 and plaintiffs and defendant No.7 & 8 are asserted to possess a 3/4th share in the mine.

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2.2 Since the petitioners despite ample opportunity could not produce their evidence, the learned Court below vide order dated 17.08.2023 granted last opportunity for production of evidence. Notwithstanding the petitioners still did not produce the evidence, leading and passing of the order dated 24.08.2023.

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Learned counsel for the petitioners contends that both the impugned orders dated 24.08.2023 and 21.09.2023 are per se contrary to the facts and material available on record and violative of Principles of Civil Law. It is due to illness of the material witness that the petitioners could not produce the evidence. This fact has been duly pleaded in application under Order XVIII Rule 17 CPC. Therefore, in the interest of justice, the petitioners may now be permitted to produce their evidence before the learned Court below as the witness is now available.

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Learned counsel further submits that for just decision of the case, it is necessary to allow the petitioners to produce their evidence. Otherwise, it will amount to miscarriage of justice and ex-parte proceedings against the petitioners, in the absence of their defence.

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I have heard learned counsel for the petitioners and have gone through the case file.

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Given the nature of order proposed to be passed, the requirement of issuance of notice on the respondents is dispensed with, as no prejudice would be caused to them.

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It appears that learned trial Court got over swayed with the fact that granting of further opportunity to adduce the evidence would cause delay in the trial. No doubt granting of such opportunity would have delayed the trial, but the same, if at all, is

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the detriment of the plaintiffs as they are the ones seeking relief from the Court. Be that as it may, even otherwise, I am of the view that the nature of evidence which the petitioners propose to adduce would be rather relevant for the proper adjudication of the controversy pending before the Court below. It would be of further resistance to the Court. That aside having seen the contents of the petition which are duly supported with an affidavit, it does appear that delay which has occurred in adducing the evidence, the same is not entirely attributable to the petitioners. It was caused due to other contributory factors also.

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Trite law it is that procedure is a handmaid of justice and, ought not be given precedence at the cost of subjugation of substantive justice.

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In the overall premise, the impugned orders are set aside and the writ petition is allowed subject to payment of cost of Rs.5,000/- to the defendants. 10. The petitioner shall be given one effective opportunity to adduce evidence, subject of course, to the discretion of the court below to adjourn the matter further on its own depending upon the exigency of workload.

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Pending application(s), if any, shall also stand disposed of.

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(ARUN MONGA),J

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47-a.asopa/-

Abdul Sattar v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Abdul Sattar v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

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