RAJA RAM Vs. VIRENDRA SINGH

JUDGEMENT

(1.) The present petition under Article 227 of the Constitution of India has been filed being aggrieved by the order dated 11.10.2019 passed by the learned trial Court, whereby the application filed by the petitioners under Order 18 Rules 1 and 2 read with Section 151 of C.P.C. has been rejected without considering the provision as mentioned under Order 18 Rules 1 and 2 CPC. The petitioners have further aggrieved by rejection of the application under Sections 65 of the Indian Evidence Act. It is submitted that the learned trial Court has rejected the application on the basis of the documents which have been filed by the petitioner stating that the same are not original documents but the fact remains that the documents filed by the petitioners have been received by him under the Right to Information Act. Therefore, the documents have been received from the department itself and are the certified copies of documents. The documents granted to the petitioners under the Right to Information Act should be treated as secondary evidence and the original record could have been called by the trial Court. It is submitted that the learned trial Court has committed an error in rejecting the applications. It is submitted that the plaintiffs have filed a suit for declaration and permanent injunction with respect to the land. It is alleged that the defendant No.2 Ram Chander was nearest relative and there was no successor of late Shri Rameshwar Singh. A forged will has been prepared and is said to be executed in favour of the defendant No.1 Virendra Singh. The civil suit has been filed for declaration, injunction and cancellation of the will. Written statement has been filed on behalf of the defendants No.1, 2 and 3 and they have denied all the averments of the plaintiffs and learned trial Court after completion of the pleadings of the parties framed six issues in the matter. The third issue has been framed with respect to possession on the disputed land of plaintiffs and with respect to entitlement of the plaintiffs with respect to entering their names in the revenue record. Just after framing of issues, the petitioners/plaintiffs filed an application under Order 18 Rules 1 and 2 read with Section 151 of CPC with the specific prayer that the defendants may be directed to produce their evidence before this Court with respect to will in question . The reply to the application was filed by the defendents. The learned trial Court after considering the applications submitted by the plaintiffs rejected the same by the impugned order dated 11.10.2019 stating that the plaintiffs are required to prove their own case. They cannot reply upon the weakness of the defendants. The plaintiffs have filed the application under Sections 63 and 65 of the Indian Evidence Act to produce certain record of District Hospital, Bhind which was received by the petitioners/plaintiffs under RTI Act , 2005. Both the applications were heard analogously by the learned trial Court and were dismissed vide order dated 11.10.2019 without discussion of the legal provision. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case Baliram Atmaram Kelapure Vs. Smt. Indra Bai & Ors, 1996 (II) MPWN SN 181 and has argued that the aforesaid law has not been considered by the learned trial Court while dismissing the application. He has further relied upon the judgment passed by the Coordinate Bench of this Court in the case of Smt. Jagran & Ors. Vs. Smt. Basanti Bai & Ors, 2001 (1) MPHT 430, and has argued that the learned Trial Court should have allowed the applications. Counsel for the petitioners has prayed for setting aside the impugned order.

(2.) Per contra, learned counsel for the respondents No.1 and 2 has supported the impugned order passed by the trial Court and argued that the learned trial Court has considered the provision to the Code of Civil Procedure while dismissing the application. It is further submitted that it is a settled law that the plaintiffs are required to prove their own cases. Under these circumstances, the burden cannot be lead upon the defendants to prove the will in question. It is submitted that the Courts are having limited jurisdiction under Article 227 of the Constitution of India and can only check error of law which has been committed by the Subordinate Court. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Shalini Shyam Setty Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 and argued that when there is no error committed by the learned trial Court which is apparent from the impugned order no interference should be made out, and he has prayed for dismissal of the petition.

(3.) Heard the learned counsel for the parties and perused the record. From the record, it is seen that the learned trial Court after completion of the pleadings of the parties framed six issues and the issue No.3 is framed as under:-