IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL ON THE 28thOF NOVEMBER, 2024 MISC. PETITION No. 6420 of 2023
SUKHDEEN PRAJAPATI
Versus
KHADDA LODHI AND OTHERS
Appearance:
Shri Anil Lala -Advocate for petitioner. Shri Ratna Bharat Tiwari - Advocate for respondents No.1 and 2.
ORDER
This miscellaneous petition has been preferred by the petitioner/defendant 2 challenging the order dated 14.10.2023 passed by IInd Civil Judge, Junior Division, Badamalhara, District Chhatarpur in Civil Suit No.6-A/2018 whereby at the stage of final arguments, Court has allowed plaintiffs' application under Section 151 of CPC and has summoned the record of the State Bank of India, Badamalhara in respect of account of defendant 2/petitioner taking cognizance of provisions contained under Order XVI Rule 6 of CPC.
2. Learned counsel for petitioner/defendant 2 submits that trial Court has committed illegality in allowing the plaintiffs' application under Section 151 of CPC whereas the similar prayer was already rejected by trial Court vide order dated 04.01.2023. He submits that the order dated 04.01.2023 operates res judicata to the second application filed under section 151 of CPC and trial Court was not having any jurisdiction to allow the application
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taking cognizance of the provisions contained in Order XVI Rule 6 of CPC. He further submits that in presence of defendant 1-Gokul Khangar who is vendor of the sale deed, the plaintiffs have no right to challenge the sale deed executed by defendant 1-Gokul in favour of defendant 2-Sukhdeen/petitioner on the ground of non-payment of sale consideration. With these submissions, he prays for setting aside the impugned order and for allowing the miscellaneous petition.
3. Learned counsel appearing for respondents 1 and 2/plaintiffs supports the impugned order and prays for dismissal of the miscellaneous petition. He submits that previously application under Order XI Rule 12 of CPC was filed prior to the stage of plaintiffs' evidence and the documents were sought to be produced from the custody of defendant 2, therefore the order dismissing the application under Order XI Rule 12 of CPC will not operate res judicata to the application filed under Section 151 of CPC as well as under Order 16 Rule 6 of CPC. With these submissions, he prays for dismissal of the miscellaneous petition.
4. Heard learned counsel for parties and perused the record.
5. Order sheet dated 04.01.2023 shows that trial Court by this order dismissed the plaintiffs' application under Order XI Rule 12 of CPC filed by the plaintiffs prior to starting of plaintiffs' evidence and thereafter at the stage of final arguments, trial Court taking into consideration the order of Collector, whereby permission to sell the land was granted to defendant 1, allowed the application under Section 151 of CPC taking cognizance of Order XVI Rule 6 of CPC and directed the State Bank of India to produce
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(DWARKA DHISH BANSAL)
JUDGE
the record in respect of the account of defendant 2/petitioner.
6. Upon due consideration of the material available on record especially in the light of conditions mentioned in order dated 24.09.2018 granting permission of sale by Additional Collector, District Chhatarpur, this Court does not find any illegality in the impugned order summoning the record of State Bank of India in relation to the drafts, which were allegedly given at the time of execution of sale deed by defendant 1 in favour of defendant 2.
7. Accordingly, this miscellaneous petition fails and is hereby dismissed.
8. Miscellaneous application (s), pending if any, shall stand closed. VB*
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