Pratap Krishna Lohra, J. - (1.) THIS petition under Articles 226 & 227 of Constitution of India at the behest of petitioner -defendant is laid to assail the impugned order dated 25.08.2015 passed by Additional District & Sessions Judge No. 1 Bhilwara (for short 'the learned court below') whereby learned court below has rejected the application of the petitioner under Order 8 Rule 1 -A(3) CPC. Besides that, the conjoint prayer of the petitioner under Order 13 Rule 10 CPC in the application is also not entertained by learned court below with the observation that if need be, the record of earlier decided case may be summoned by the court at the time of final arguments.
(2.) THE facts apposite for the purpose of this petition are that respondent -plaintiff instituted a suit for partition, possession and rendition of accounts in respect of immoveable property measuring 40' x 60' situated at Laxmi Narain Mandir Road, Bhilwara pleading specifically therein that the said property is joint Hindu Family Property of late Shri Kanhaiyalal having three sons and two daughters namely Shri Ram Prasad, Shri Madanlal, Shri Prem Narain, Smt. Jasoda Bai and Smt. Sohan Bai respectively. It is also averred in the plaint that Shri Ram Prasad expired in the year 1993 leaving behind his descendants who were arrayed as defendant Nos. 1 to 9 in the suit. The suit is contested by the petitioner and written statement was filed on his behalf on 23.10.2002 with specific plea that in addition to the suit property, several other properties were purchased by the income of Joint Hindu Family and details thereof were also mentioned in paragraph -5 of the written statement. That apart, some other facts are also incorporated in the written statement and factum of execution of Release Deed and Will in favour of respondent -plaintiff were also repudiated. Besides the petitioner, other defendants also filed their written statement separately. In the written statement, the petitioner has not only contested the claim of the respondent -plaintiff but has also laid a counter claim. The counter claim aforesaid is replied by the respondent -plaintiff. Thereafter on the basis of pleadings of rival parties, learned court below initially settled six issues for determination on 28.08.2004. Later on, learned court below framed additional issue No. 5A on 12.04.2006, No. 5B on 18.01.2010 and No. 5C on 21.11.2014. In order to substantiate his case, the respondent -plaintiff examined seven witnesses and his evidence was concluded on 22.04.2011 and the matter was thereafter posted for evidence of the defendants on 23.05.2011. In the interregnum, defendant No. 13 Smt. Sohan Bai breathed last and, therefore, her legal representatives were brought on record by order dated 03.04.2012. Be that as it may, the petitioner's evidence was completed on 10.04.2014 and the matter was posted for evidence of plaintiff's rebuttal on 22.04.2015. As no evidence was tendered by the respondent -plaintiff in rebuttal, his evidence was closed and the matter was posted for final arguments on 28.04.2015. When the evidence of the rival parties was going on, the petitioner submitted certified copies of earlier plaint No. 20/1977 (12/1973) filed by Shri Madanlal, father of the plaintiff against Shri Ram Prasad father of petitioner, written statement and judgment dated 31.05.1980 as well as judgment dated 12.09.2001 passed by this Court in first appeal. Although these documents were tendered in evidence by the petitioner but statements of Shri Madanlal which were recorded in the aforesaid suit were not produced by the petitioner and, therefore, at his instance, an endeavour was made to place on record statement of Shri Madanlal and further prayer was made to send for the record of earlier aforementioned suit. Therefore, for craving twin reliefs, the petitioner submitted an application under Order 8 Rule 1 -A(3) as well as Order 13 Rule 10 CPC. In his application, the petitioner has averred that certified copy of plaint in suit No. 20/1977 and written statement are available on record but statements of Madanlal are not on record. Therefore, the court may send for the record of case No. 20/1977 and take on record certified copy of statement of Madanlal recorded in the aforesaid suit. The petitioner has also craved in the application that sending for the record of the case and taking certified copy of statement of Madanlal on record is necessary for just decision of additional issue No. 5C. In support of the argument, affidavit of the petitioner is also tendered.
(3.) THE respondent -plaintiff contested the application and submitted his detailed reply. In the reply, it is submitted that endeavour made by the petitioner earlier by submitting an application for summoning of record of suit No. 20/1977 was not entertained by the court and, therefore, now the petitioner cannot be permitted to re -agitate the same issue. It is also stated in the reply that statements of Madanlal recorded in the earlier suit were within knowledge of the petitioner but he has not produced those statements at the earlier point of time. Therefore, at such a belated stage, when the matter is posted for final arguments, such a prayer cannot be countenanced and merits rejection. It is also pleaded in the reply that after framing of issues, twice the petitioner has made endeavour to place on record additional documents but for the statements of Madanlal and, therefore, the application filed by the petitioner in this behalf is mala fide just to prolong the proceedings. Taking dig at the conduct of the petitioner and doubting his bona fide, the respondent -plaintiff has also pleaded in the return that at the fag end of the trial such application is not tenable. A further attempt is made by the respondent -plaintiff to resist the prayer by urging that when the petitioner has produced copy of plaint of the earlier suit, written statement as well as judgment why he has not produced statements of Madanlal is a very relevant consideration which creates doubt about bona fides of the petitioner.;