SHAINAZBEGUM, W/0 MOHD. JAVEED v. SHAMIM FATIMA, W/0 SAYED ALIM

(BY SRI.SHIVARA APPAJI, ADV. FOR R-3, SRI.M.V LADDA, ADV. FOR R1-4. (VK NOT FILED) NOTICE TO R-5(A), (B) & (H), R-7 & R-8 - SERVED, R-5 (C TOG) & R-6 - DELETED VIDE ORDER DATED 07.02.2012) ********* .. RESPONDENTS. THESE PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 13.01.2010 PASSED BY THE COURT OF CIVIL JUDGE (JR.DN). SHAHABAD, ON I.A.NOS.13, 14 & 15 IN O.S.NO.34/2007 PRODUCED AT ANNEXURE - “N”. - THESE PETITIONS COMING ON FOR PRELIMINARY HEARING - “B GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Defendant Nos.3 and 6 in O.S.No.34/2007 on the file of Civil Judge (Jr.Dn.), Shahabad, have come up in these writ petitions challenging the order dated 13.01.2010 passed on LA.Nos.l3. 14 and 15.

2. Original suit in O.S.No.34/2007 is filed by respondent Nos. 1 to 4 herein for the relief of partition and separate possession in the suit schedule properties. In the said proceedings. defendant No.3 is one of the sisters of plaintiffs in the said suit. Defendant No.3 is purchaser of suit lands. which are at item Nos. 1 to 3 and Item No.4 is the house property at Paragraph 2 in the plaint, which according to defendant No.3 is given to her by plaintiff No.3 and defendant Nos. 1 and 2. which is challenged by others, In the proceedings before the Trial Court after conclusion of evidence, three applications were filed by defendant Nos.3 and 6, they are l.A. 13 filed under Section 151 of CPC for -6- recalling of order dated 04.0 L2010 passed on LA.IX to lead further evidence in the said proceedings; LA. 14 is filed under Order 8. Rule 1A read with Section 151 of CPC seeking permission to file additional documents and LA. 15 is filed under Order 16, Rule 6 read with Section 151 of CPC for issuance of witness summons to Secretary of Gram Panchayat. Pethshiroor, production original memorandum of Gift Deed dated 09.04.1990.

3. In the said proceedings, after hearing the counsel for plaintiffs and as well as defendants, the Court below has dismissed all applications under the order impugned on the ground that the certified copy of Gift Deed dated 09.04.1990 produced before the Court does not disclose number of residential property said to have been gifted to defendant No.3 and that summoning the original documents is not necessary. since the certified copy is sufficient to ascertain the correctness or otherwise of the pleadings raised by defendant Nos.3 and 6. Accordingly all the three applications are dismissed. -7-

4. Petitioners herein, namely defendant Nos.3 and 6 being aggrieved by the same, have come up In this proceeding contending that the original Gift Deed executed by plaintiff No.3 and defendant Nos. 1 and 2 in favour of defendant No.3 is the essential document, which will disclose the execution of Gift Deed by them In favour of defendant No.3 so far as the sale of residential property, which is at item No.4 in Para 2 of the plaint and also confirm the transaction of sale of lands in favour of defendant No.6. The certified copy of document which is secured and produced by defendant Nos.3 and 6 is not sufficient inasmuch as signatures of the parties could not be seen on the certified copy. Therefore, it is necessary to secure the original document from the custody of Gram Panchayat office. Hence applications in I.As. 13 to 15 were filed for summoning of document, to reopen the case and to produce and mark the same in the further evidence to be adduced, to establish beyond doubt that the execution of Gift Deed in favour of defendant No.3 and also sale of suit land in favour of defendant No.6. 0 -0-

5. After hearing the counsel for petitioners, defendant Nos.3 and 4 and on re-appreciation of the reasons given by the Court below in Paragraph 15 of the order impugned, it is clearly seen that there is an error on the part of Court below in not appreciating the facts inasnnich as the certified copy produced, would not have the signatures of the parties. Therefore it may not be possible for defendant Nos.3 and 6 to establish the execution of document, which is essential. It is Hot in dispute that all possible opportunity should be provided to each of the parties to suit to clearly establish beyond reasonable doubt regarding the defence taken by defendant Nos.3 and 6.

6. In that view of the matter, there is an error on the part of Court below in not allowing the applications. I.A.Nos. 13 to 15 filed therein. which would result in multiplicity of proceedings. To avoid the same, it is just and necessary that the aforesaid three applications are required to be allowed b giving sufficient opportunities to defendant Nos.3 and 6 to establish their case before the Court below. t S

7. Accordingly, writ petitions ified by defendant Nos.3 and 6 in O.S.No.34/2007 on the file of Civil Judge (Jr.Dn.), Shahabad, are allowed, without any order as to costs.

8. The order impugned dated

13.01.2010 rejecting I.A.Nos. 13, 14 and 15 therein is set aside. Consequently. the said applications are allowed. Sd! WDGE AGV.