Smt. Ramlata v. Smt. Neetu

respondents/plaintiffs are sons and daughter of defendant No.1 Darshan Singh @ Darshan Lal. During the pendency of the suit, defendant No.1 Darshan Singh @ Darshan Lal had expired thus, alleging, that suit land/property belonged to his ancestor Ramgopal who was grandfather of the original respondents and therefore, respondents/plaintiffs hold 1/5 share each in the property and for claiming the 1/5 share, a suit was filed.

4. It was further averred in the plaint that defendant No.1 Darshan Singh @ Darshan Lal was having 1/10th share in the land and he had no right to execute the sale deed more than his share, therefore, sale deed dated 24.06.2006 and 05.07.2006 are null and void.

5. After issuance of notice, defendant No.3 and 5 filed their written statements contending that the suit has been filed on false set of facts and it was denied that the suit property is a joint family property. Further in the written statements, it was contended that the defendant No.1 Darshan Singh @ Darshan Lal had right to sell the entire property of his share and the respondents/plaintiffs were in knowledge of execution of sale deeds since beginning. It is further averred that respondent/plaintiff was not guardian of the respondent No.2 and 3/ plaintiff no. 2 and 3 as their mother and father were alive at the time of filing of civil suit. The sale deeds which have been challenged and have been executed by respondent No.1 Darshan Singh @ Darshan Lal are on the basis of being Bhoomiswami/possession holder accordingly, the civil suit deserves to be dismissed.

6. On the basis of pleadings, learned trial court framed the issues and put the suit for trial. During the pendency of the matter,

2

petitioners/defendants no.3 and 5 came to know that one another civil suit which was titled as Pooran Singh Vs. Darshan Singh and others vide case No.29A/2007 was pending and Advocate Jagdish Chandra Agrawal who is counsel for the plaintiff in the present suit, had appeared on behalf of Darshan Singh @ Darshan Lal and had filed vakalatnama and in written statements filed on behalf of Darshan Singh @ Darshan Lal, counsel Jagdish Chandra Agrawal had identified the thumb impression on affidavit and even the thumb impression on vakalatnama and as and when the aforesaid fact came to their knowledge, they moved an application under order 8 Rule 1 (3) of CPC and Vakalatnama of counsel Jagdish Chandra Agrawal and affidavit of Darshan Singh @ Darshan Lal in the earlier suit were pleaded to be brought on record. The learned trial court allowed the said application on 23.03.2024 and directed to take said documents on record. After allowing of the said application, petitioners filed another application under Order 16 Rule 1 and Section 151 of CPC alleging that since Advocate Jagdish Chandra Agrawal is an important witness of the petitioners to prove the fact that whether Darshan Singh @ Darshan Lal used to apply thumb impression or used to sign, therefore, he is required to be called as witness. The aforesaid fact of calling of Shri Jagdish Chandra Agrawal as a witness arose at the time of examination-in-chief by plaintiff Neetu when The fact came on record that sale deeds which were executed by him were alleged to be forged documents. Therefore, in cross-examination, a question was asked whether Late Darshan Singh @ Darshan Lal used to sign or used to put thumb impression and in that context, the plaintiff has specifically stated in

3

paragraph 26 that Darshan Singh @ Darshan Lal only used to sign the documents but the fact was that Darshan Singh @ Darshan Lal used to put thumb impression also which has been verified by Advocate Jagdish Chandra Agrawal in the earlier suit and to prove the same, presence of Advocate Jagdish Chandra Agrawal as a witness was required.

7. After hearing rival contentions, learned trial court dismissed the application vide impugned order holding that there are no circumstances existing in the present matter to call Advocate Jagdish Chandra Agrawal as witness that too only on the basis that he has verified the thumb impression of Late Darshan Singh @ Darshan Lal.

8. Learned counsel for petitioner by taking exception to the impugned order has contended that documents regarding the verification done by Advocate Jagdish Chandra Agrawal on Vakalatnama and affidavit once have been taken on record, then it was necessary for calling Advocate Jagdish Chandra Agrawal as a witness to prove the factum of his duly verifying the thumb impression which have been denied by the plaintiffs/respondents in her cross-examination.

9. It was further submitted that according to the documents i.e. Vakalatnama of Darshan Singh @ Darshan Lal and his affidavit, the position was clear that Darshan Singh @ Darshan Lal's thumb impression was on both documents and Advocate Jagdish Chandra Agrawal had identified his thumb impression and also he used to put thumb impression, but without considering this fact, the learned trial court has erred in dismissing the application and had denied a valuable right to call a witness, who was an

4

important witness to prove the fact that Darshan Singh @ Darshan Lal was also applying thumb impression on the documents and the sale deeds have been executed by Late Darshan Singh @ Darshan Lal by applying thumb impressions also. Thus, it is prayed that order impugned is per se illegal and liable to be quashed. To bolster his submission learned counsel for petitioner placed reliance on the judgement passed in the case of Gopal Das Renwal Vs. Smt. Deepika Jain reported in 2010(1) MPLJ 594.

10. Per contra, learned counsel for respondent submits that filing of application under Order 6 Rule 1 of the CPC is only to linger on the matter as the suit is pending for the last 14 years and also to compel Advocate Jagdish Chandra Agrawal to withdraw from the suit as he is counsel of respondents/plaintiffs. Since, if at any point of time, Advocate appears as witness of the present petitioners/defendants, then he will not be able to continue as counsel for the respondents/plaintiffs.

11. It was further argued that with regard to the plea that Darshan Singh @ Darshan Lal was putting his thumb impression or signing a document ,was not raised by the plaintiffs at any point of time and there is no occasion for respondents/defendants to have asked for the testimony of Advocate Jagdish Chandra Agrawal to prove whether Darshan Singh @ Darshan Lal had applied thumb impression on affidavit and vakalatnama of earlier suit.

12. It was further argued that by way of application the petitioners/defendants are trying to bring a new case and just to linger on the matter, they have moved such an application which has rightly been rejected. He further contends that there is no sum and substance in the present petition

5

and the same deserves to be dismissed.

13. Heard counsel for the parties and perused the record.

14. Order 16 Rule 1 of the CPC deals with summoning and attendance of witnesses. Sub-Rule 3 of the Rule 1 provides that the Court may, for reasons to be recorded, permit a party to call, whether by summoning through court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule 1, if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Thus, the aforesaid provisions provide power to the court to grant permission to call the witness on showing sufficient cause.

15. Here, in this case, the cause which have been shown by the petitioner/defendant to call for Advocate Jagdish Chandra Agrawal, as their witness is that he has attested the thumb impression of late Darshan Singh @ Darshan Lal on vakalatnama as well as on an affidavit sworn in by him in some other suit and he is a necessary witness since the plaintiff in her statement had denied the execution of sale deeds impugned therein alleging to be forged and fabricated in which thumb impressions of Darshan Singh @ Darshan Lal were there.

16. Admittedly, from the averments made in the plaint as well as in written statement, this fact has not emerged that whether late Darshan Singh @ Darshan Lal used to sign the documents or used to put thumb impressions. It was only in the cross-examination of the respondents/plaintiff that the fact had surfaced when question was put that whether Darshan Singh @ Darshan Lal used to sign the documents or used to apply thumb impression that it was

6

(MILIND RAMESH PHADKE)

JUDGE

replied that he used to only sign the documents. Thereafter, vakalatnama and affidavit were requested to be taken on record.

17. When there were no pleadings of the parties to proving the fact that whether Darshan Singh @ Darshan Lal used to sign the documents or used to put thumb impression, this Court does not deem it necessary to get this particular fact verified from some other documents which were part of some other case. This court does not find any perversity in the impugned order. So far as reliance has been placed in the judgement passed in the case of Gopal Das Renwal (supra), in the said judgement it has been held that "a party praying for summoning of the witness to the court, has to assign sufficient and adequate reasons for seeking assistance of the court for summoning the witness", but in the present case the petitioner has failed to demonstrate any sufficient reason.

18. The petition is devoid of merit and is hereby dismissed. Vishal

7