VIMLA DEVI Vs. ADDL. DISTT. JUDGE, GANGAPUR CITY

JUDGEMENT

(1.) HEARD counsel for the petitioner and perused impugned order dt. 19.07.2011 passed by Additional District Judge, Gangapur City (hereinafter referred to as 'the Trial Court'). By the impugned order dt. 19.07.2011, the Trial Court has found that the application, filed by the petitioner -defendant (hereinafter referred to as 'the defendant') for calling of accounts and sales tax register from the plaintiff, was incapable of being considered and allowed, as the facts averred in the application set up a case not even averred in the written statement to the plaint filed by the defendant. The Trial Court found that in the money suit, filed by the plaintiff for recovery of a sum of Rs. 3,00,000/ -, loaned to the defendant, it was for the defendant to take all her defences, as available in the law and lead evidence thereupon and that there was no ground for allowing the application filed by the defendant. The defendant's application was dismissed vide impugned order dt. 19.07.2011.

(2.) IN my considered opinion, the order dt. 19.07.2011 is not vitiated by law, as the same is a discretionary order, passed by the Trial Court supported by good reasons. The defendant had to lead her defence evidence in the recovery suit under contest and could not require summoning of the plaintiff's documents for the purpose, more so when the facts pleaded in the application were beyond to the facts pleaded in the written statement. The Hon'ble Supreme Court in the case of Subodh Kumar Gupta & Others vs. Alpana Gupta & Others,, (2005) 11 SCC 578 has held that where the Civil Court passes, an order of discretionary nature, supported by good reasons, it is not to be interfered with by the Courts in exercise of the jurisdiction under Article 227 of the Constitution of India. Even otherwise, limitation of this Court under Article 227 of the Constitution of India has been detailed out by the Hon'ble Supreme Court in the cases of Surya Dev Rai vs. Ram Chander Rat, (2003)6 SCC 675 and Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil, : (2010)8 SCC 329. Within the parameters of limitation of jurisdiction of this Court under Article 227 of the Constitution of India, I find no scope for interference with the impugned order dt. 19.07.2011. There is no force in this writ petition and the same is, accordingly, dismissed. It is, however, made clear that the petitioner will be free to take all grounds agitated in the present writ petition in an appeal filed against the judgment passed by the Trial Court, if so warranted.