Ambalal v. Jugal Kishore & Ors.

HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS _________________________________________ Mr. D.R. Bhandari for the petitioner. Mr. Suresh Shrimali for the respondent(s). BY THE COURT : In this writ petition filed under Article 227 of the Constitution, the petitioner has prayed for quashing order dated

02.02.2010 passed by Addl. District Judge (Fast Track) No.5, Udaipur and prayed that application filed under Order 8 Rule 1, C.P.C. on 13.11.2009 may be allowed and trial Court may be directed to take the release-deed on record. Contention of the petitioner is that in a partition suit of property among 3 sons, separate written-statements were filed by defendant No.1 Amba Lal, defendants No.3 Smt. Kamla Devi and No.4 Rooplal Soni and all the defendants denied the suit prayer and prayed for dismissal of the suit. Defendants No.1 and 3 filed written-statements on 03.11.2009 and defendant 2 No.4 Rooplal Soni filed written-statement on 13.11.2009. Before filing written-statement defendant no.4 Roop Lal Soni executed release-deed in favour of his son about his share which he got from partition deed executed by his father late Laxmilal. It is contended by learned counsel for the petitioner that Roop Lal Soni admits in his reply that a partition-deed was executed by late Laxmilal but the plaintiff Jugal Kishore is disputing the partition, therefore, to prove the fact an application under Order 8 Rule 1A, C.P.C. was filed by the petitioner- defendant to take on record the release-deed executed by defendant No.4 Roop Lal Soni in favour of his son Kamlesh Soni on the basis of the said partition-deed executed by late Laxmilal Soni, however, learned trial Court rejected the application solely on the ground that the said document was executed after filing suit by the plaintiffs.

Learned counsel for the petitioner submits that no prejudice will be caused to any party by taking the document on record, so also, defendant Roop Lal who has executed the said release-deed on the basis of the partition-deed executed by late Laxmi Lal Soni, therefore, the reason for not taking the said document on record by the trial Court is illegal. Hence, it is prayed that the impugned order may be quashed to the extent of rejecting the application filed by the petitioner-defendant under Order 8 Rule 1A, C.P.C. and trial Court may be directed to take 3 the document release-deed executed by defendant No.4 Rooplal Soni on record. Learned counsel for the respondents vehemently argued that there is no disclosure when the fact of execution of the said release-deed came to the knowledge of the petitioner, so also, there is no mention in the reply filed by Roop Lal Soni with regard to executing the said document, therefore, this writ petition may be dismissed.

After hearing learned counsel for the parties, in my opinion, the trial Court has committed an error while rejecting the application filed by the petitioner-defendant under Order 8 Rule 1A, C.P.C. because Roop Lal himself is admitting in his written-statement that partition-deed was executed by late Laxmi Lal Soni, father of Roop Lal; meaning thereby, to prove the fact that partition-deed was executed by late Laxmi Lal, the document which is release-deed executed by defendant No.4 Roop Lal Soni in favour of his son in pursuance of the said partition-deed is relevant, therefore, the order impugned dated