BHAJANLAL KUSHWAHA Vs. KANHAIYALAL KUSHWAHA

JUDGEMENT

(1.) By invoking the jurisdiction of this Court under Article 227 of the Constitution of India, the petitioner/plaintiff has challenged the validity of the order dated 1.9.2010 (Annexure P-1) whereby application of the petitioner for recalling of the earlier order dated 26.2.2010 (Annexure P-2) is rejected.

(2.) The petitioner/plaintiff filed a suit for declaration and permanent injunction (Annexure P-4). During the proceedings of the said suit, the defendant No.5 preferred an application (Annexure P-6) on 11.9.2009 under Section 35 of the Stamp Act and stated that Exhibit P-3 is a partition deed and it is not properly stamped and, therefore, this document cannot be taken in evidence. The petitioner/plaintiff submitted his reply (Annexure P-7) on 24.10.2009.

(3.) The Court below passed order dated 26.2.2010 and opined that a careful perusal and contents of Exhibit P-3 shows that it is a partition deed and, therefore opined that the document is not properly stamped. Consequently, matter was directed to be sent for the purpose of obtaining report regarding proper valuation from District Registrar. In turn, District Registrar passed the order Annexure P-9 on 13.4.2010 and raised two questions and requested the Court to give proper guidance in this regard so that further action can be taken. On the strength of Annexure P-9, the petitioner preferred an application under Section 151 C.P.C. (Annexure P-10) for recalling of the earlier order dated 26.2.2010. The Court below by order dated 1.9.2010 opined that in earlier order dated 26.2.2010 the Court below has expressed its opinion in detail and there is no need for reconsideration of the matter. Accordingly, petitioner's application for recalling of the said order is rejected with a finding that the said document, in absence of its registration, cannot be accepted in evidence even for collateral purpose. The orders dated 26.2.2010 and 1.9.2010 are called in question by the petitioner.