AJAY KUMAR DUBEY Vs. MANDIR DURGA JI

JUDGEMENT

(1.) THIS petition filed under Article 227 of the Constitution takes exception to the order passed by the court below dated 13.07.2004 (Annexure P/1) whereby the application preferred under Order 18 Rule 17 C.P.C. was allowed by the Court below.

(2.) THE petitioner and respondent No.1 along with certain other persons filed an application for registration of Public Trust under Section 4 of th M.P. Public Trust Act (Act). The said application was preferred before the Registrar, Public Trust, Vidisha and was registered as case No. 3/B -113/2001 -2002. The petitioner and respondent applied for registration of Mandir Shri Durga Ji as a public trust under Section 4 of the said Act. Registrar initiated the enquiry and respondent No.1 was examined as AW -1. This witness in his cross -examination on oath stated as under : -

(3.) SHRI J.P. Mishra, Advocate for the petitioner, submits that after about two years from the date of said deposition, the respondent No.1 filed an application under Order 18 Rule 17 C.P.C. to recall and re -examine him for clarification of previous statement. Copy of the statement is filed as Annexure P/6 whereas application under Order 18 Rule 17 C.P.C. is filed as Annexure P/7. The present petitioner filed the reply to the said application and opposed the aforesaid prayer. Registrar by the impugned order allowed the said application. This order is assailed on the ground that impugned order is without jurisdiction and contrary to settled law. The duly recorded statement, which was signed by deponent, cannot be permitted to be changed after lapse of sufficient time. It is an after thought and therefore, court below has erred in allowing the same. To bolster aforesaid contention, reliance is placed on Section 137 and 138 of the Evidence Act. The bone of contention of Shri J.P. Mishra is that the Court below has erred in exercising the power under Order 18 Rule 17 C.P.C. He relied on.Bagai Construction Vs. Gupta Building Material Store, 2013 14 SCC 1.