Decided on March 02,2021

Ravita Respondents


S.A.Dharmadhikari,J. - (1.) In this petition under Article 227 of the Constitution of India, petitioner has assailed the legality, validity and propriety of the order dated 06/03/2017 passed in Civil Suit No. 25A/2014 by the learned 8th Civil Judge, Class-II, Gwalior (M.P.) whereby application filed by the petitioners/defendants under Order 16 Rule 1 & 6 read with Section 151 of the CPC, has been dismissed.
(2.) Brief facts leading to filing of this case are that respondent No.1/plaintiff has filed a civil suit seeking declaration of title and permanent injunction pertaining to property bearing House No. 41/712 (old No. 35/565) situated at Pattalwali Gali, Lohiya Bazar, Lashkar Gwalior (M.P.). As per the plaint averments, plaintiff having 1/6 share in it. Refuting the averments made in the plaint, petitioner/defendant No.1 and 2 have filed the written statement on 04/02/2013 in which it is stated that the subjected property has been constructed by the petitioner/defendant No.2 from the fund received during service. The Trial Court had framed the issues on 16/10/2014. Thereafter, plaintiff filed an affidavit under Order 18 Rule 4 of the CPC on 23/06/2016. The cross examination of the plaintiff is under process. During that time, present application under Order 16 Rule 1 and 6 read with Section 151 of the CPC has been filed by the petitioner, it has been specifically stated that plaintiff is not residing at the address mentioned in the cause title of the plaint. The learned Trial Court dismissed the application vide impugned order dated 06/03/2017, hence, this petition has been preferred.
(3.) Learned counsel for the petitioner submits that application under Order 16 Rule 1 and 6 of the CPC was filed to demonstrate that plaintiff is not residing in a part of subjected property in question and therefore prayer was made for summoning the record from Raja Gas Agency, Opposite Janak Hospital, Shivaji Marg No. 3, Lashkar, Gwalior (M.P.) in respect of gas Connection No.7525285 which is in the name of the plaintiff so that it can be definitely known as to whether the plaintiff is residing in the property in question or not ? The Trial Court rejected the application on the ground that petitioner/defendant has opportunity to establish the same in their evidence. The Trial Court has committed an error in rejecting the application inasmuch as rejection order is not sustainable in the law laid down by this Court in WP No. 6109/2009 decided on 25/01/2010.;

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