The case is called out.
Heard Ms. Farakshan Khatoon, learned counsel for the petitioner who has filed this writ petition invoking the discretion of the Court for the exercise of it's jurisdiction under Article 227 of the Constitution of India. The allegations are that an original suit bearing no.634 of 2015 is filed by the petitioner on 28.05.2015 (Shiv Kumar Vs. Dina Nath and others), which is pending before the opposite party no.1-Civil Judge, Junior Division, Court No.13, Barabanki. Learned counsel for the petitioner seeks direction to be issued to the Court concerned for expeditious disposal.
There are two private opposite parties nos.2 and 3, who are being reflected from annexure no.1 of the copy of the plaint, as defendants nos.1 and 2 in the suit. The suit is for permanent prohibitory injunction with regard to an immovable property. Learned counsel seeks direction for expeditious disposal, has annexed a typed copy of the order sheet. It is evident therefrom that the defendant no.2 is served with summon sufficiently, filed the written statements whereas the defendant no.1 was given last opportunity. Thereafter, neither it reflects from the order sheet nor from the order recorded at the time of framing of issue on 02.05.2019 that whether the opposite party no.1 filed written statement. However, issues are framed and three issues relating to valuation, court fees and jurisdiction were made preliminarily and decided on the same date i.e. on 02.05.2019.
It is lacking in the order sheet that whether any of the party to the suit has filed his list of witnesses alongwith the list of documents for the purpose of admission and denial by each other or produced document and list of witnesses prior to the framing of issues. Ther is utter defiance from the procedure prescribed under order XIII & XIV of the Civil Procedure Code, 1908 as amended upto date. The Scheme under order XIII & XIV of CPC requires cumulatively the filing/procedure of documents to be relied on by the respective parties in support of their material assertion in the pleading. The Court after examining the party under Rule 2 of Order X of the CPC proceeds with framing of issues, wherein such documents in evidence may also be materials for assertion or denial of any fact so as frame the issues.
The court below has proceeded further for making disposal of report of local inspection made by the Advocate Commissioner. Since the suit involved in the petition is for permanent prohibitory injunction with regard to the dispute of immovable property between the parties to the suit, the report of Advocate Commissioner submitted after local inspection may be kept for confirmation or non confirmation subject to evidences of the parties. Therefore, lingering the case after framing of the issues, disposal of preliminary issues, it would be more proper to rectify the mistake crept into procedure by calling the parties to produce their documents, if any in evidences alongwith the list of witness. The documents produced by either of the parties should also be admitted or denied by specific endorsement thereon so that the necessity to prove by evidence may either be dispensed with or made necessary. Therefore, the court concerned is directed to proceed in accordance with law of procedure as contained in the Civil Procedure Code by calling the parties to file their list of witnesses alongwith the list of documents getting it admitted or denied respectively by each other and then to fix the date of evidence. The Court may also adopt the procedure provided for the purpose of expeditious disposal in the C.P.C. itself by calling the parties to file the statement-in-chief of their witness on affidavit so that the cross-examination may be called for by respective parties. The petitioner itself is directed to follow the aforesaid observations.
The court concerned-opposite party no.1-Civil Judge, Junior Division, Court No.13, Barabanki is directed to comply with the procedure as envisaged in the C.P.C. by calling the parties to file their list of witnesses and list of documents alongwith the statement under examination-in-chief on affidavit within a period of 15 days from the date, certified copy of the order is produced before it and to proceed further for the cross-examination and thereafter, conclude the evidence within a reasonable period of six months and to decide the case accordingly after hearing the parties.
With the aforesaid directions, the writ petition is disposed of.
Order Date :- 18.12.2019 Saurabh