PAWAN KUMAR PATHAK Vs. MOHAN PRASAD

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution is directed against the order dated 25.2.2015 whereby the objection of the respondent/defendant (Annexure P-14) is allowed by the Court below.

(2.) The order dated 10.3.2015 (Annexure P-2) is also called in question whereby the application of the petitioner preferred under Order 47 Rule 1 CPC is rejected by the Court below. Learned counsel for the petitioner submits that the petitioner filed a suit for declaration and permanent injunction. During the pendency of the suit, an amendment application under Order 6 Rule 17 CPC was filed contending that the plaintiff is adopted son of late Shri Heeralal Pathak. The said amendment application was disallowed by the trial court. The said order was put to test before this Court in W.P.No. 7500/10. This court by order dated 17.11.2011 (Annexure P-7) dismissed the said writ petition. The petitioner made an unsuccessful effort to review that order by filing review petition No. 27/11 (Annexure P-7A). Yet another review 34/11 was filed which was disposed of on 9.2.2011 (Annexure P-7B). In this order, this Court gave liberty to the petitioner to raise objection in the appeal if suit is dismissed by the trial court. The said liberty was given on the basis of present petitioner's prayer seeking liberty to raise objection in appeal if the judgment of trial court goes against him. On the strength of this liberty, it is contended by the petitioner that at appellate stage the petitioner will be at liberty to raise objection regarding the order of the trial court rejecting the amendment application. If at appellate stage petitioner's objections are sustained, the effect will be of allowing of the said amendment application. At that point, since the document is not taken on record and admitted in evidence, it will be a case where there will be pleading but without there being any evidence. It is contended that the Court below itself by order dated 19.11.2010 (para 17) had taken the said document (adoption deed dated 29.3.1973) on record. Thereafter, the plaintiff witness Shri Mohanlal Swarnakar was examined before the Commissioner vide Annexure P-12 dated 16.1.2015. In his deposition, the said adoption deed was exhibited as P32-C. Once the said document is taken on record and is also marked as exhibit, at later point of time, neither that document can be thrown out of record, nor it can be refused to be taken as an evidence.

(3.) To bolster the aforesaid submission, it is contended that the court below has erred in not taking such document on record. The proper course would have been to keep this issue of admissibility of this document alive till final decision of the matter. In support of this, reliance is placed on (Bipin Shantilal Panchal Vs. State of Gujarat and another, 2001 2 Supreme 65). The judgment of Delhi High Court (Coca Cola India Vs. C.P.Malik, 2010 AIR(Del) 1) is also relied upon. By placing reliance on Bombay High Court decision in Appa Babaji Misal Patil and others Vs. Dagdu Chandru Misal, 1995 AIR(Bom) 333 since deceased by his heirs Naginbai Dagadu Misal Etc.Etc. And others), it is contended that the court below has erred in rejecting the said document. In nutshell, the argument of the petitioner is that the petitioner has pleaded that he is owner of the property. The mode by which he became owner is a question of evidence which can be substantiated by leading evidence but court below was not justified in rejecting the document at this stage.