SH SULEKHAN SINGH v. SH SACHTh SARAN

1. By way of the present petition under Article 227 of the Constitution of India, the petitioner has assailed orders dated 6th June, 2013, 24 1h July, 2013 and 8'11 August, 2013 passed by the learned Trial Court in a suit for possession and damages filed by the respondent against the petitioner.

2. In the course of proceedings, after the cross-examination of petitioner's witness No.5 (IDW[5]), the petitioner submitted before the court that he wished to summon the Joint Commission and Chief Commissioner of Income Tax in respect of remaining assessment record of the petitioner. The learned Trial Court in the order dated 6th June, 2013 observed that it was the 4th opportunity for the petitioner's evidence after the last opportunity was granted for the same. Petitioner was required to take up steps at the appropriate stage and accordingly the petitioner's evidence was closed. CM (A) No ii1012013 2013:DHC:8283 f

3. The petitioner thereafter filed an application under Section 151 read with Order 8 Rule 1 CPC for allowing the petitioner to summon the Joint Commission of Income Tax for producing assessment record of MIS Ganda Singh Baiwant Singh or in alternative allowing the petitioner to place on record the said assessment record to show that he was in adverse possession of the suit property as per his written statement The said application was contested by the respondent who stated that the said application was filed at a belated stage and that the petitioner was concealing the documents till the last stage and the said document was not even shown to the witness of the income tax department during examination.

4. The learned Trial Court vide order dated 24th July, 2013 observed that the document sought to be placed on record was neither placed on record till the stage of final arguments nor were they produced at the time of examination of witness DW 4 and DW 5 who were from the income tax department. It was noticed by the learned Trial Court that on 23' January, 2013, at the stage of petitioner's evidence, the petitioner had sought permission of the court to file certain documents which was allowed subject to the cost of Z 4,000/-, but even then the petitioner did not mention about the said document. The petitioner did not explain as to why the documents were not produced at the relevant stage and has only argued that he wanted the income tax officials to produce the said document from their records. The learned Trial Court opined that right from the stage of written statement till conclusion of PE and DE, the said documents had neither been produced by the petitioner nor was there any explanation for non-production. Accordingly the said application was dismissed as not maintainable at the stage of final arguments. CM (M) No. 111012013 re

5. Thereafter the petitioner filed an application under Order 47 Rule I and 2 read with Section 151 CPC for review of the order dated 24th Ji1y, 2013 stating that in his earlier application, two prayers were sought, one in respect of summoning the Joint Commission as witness and in the alternate, taking on record the documents filed therewith. It was stated by the petitioner that though the second prayer had been decided by the said order, the prayer for summoning the Joint Commissioner had not been decided by the Court.

6. The learned Trial Court observed that after closing of evidence of the petitioner on 6th June, 2013, the petitioner had sought an oral opportunity to summon the Joint Commissioner and the Chief Commissioner of Income Tax which was declined on the very same day. Subsequently, the application in the said regard was moved which was dismissed on 24th July, 201.[3] holding that the same was not maintainable at that stage. The issue of summoning of the witness and the said document had therefore been declined by the said order. Accordingly the said application was dismissed as in view of the learned Trial Court, there was no ground of review.

7. Aggrieved thereof the petitioner has approached this Court against the impugned orders on the ground mainly that the same are liable to be set aside being illegal and without jurisdiction.

8. I have heard the learned counsel for the parties and after having gone through the pleadings, documents as well as the impugned order, I am of the considered opinion that the impugned order dated 6t[1] June, 2013, 24th July, 2013 and 81h August, 2013 do not suffer from any infirmity. The relief sought by the petitioner is not liable to be granted on merit due to the reasons that the petitioner's prayer is not only considered once but by CM (M) No. 111012013 Page 3of[4] r ig thrice. Once the review filed by the petitioner is also dismissed, there is hardly any chance to consider the same grounds in the petition filed under Article 227 of Constitution of India. The court below has passed three orders on the facts of the matter. No legal infirmity is found in the said order. Thus, the prayer made in the present petition cannot be allowed.

9. The present petition and pending application are dismissed.

10. No costs.

SIGH JUDGE DECEMBER 18, 2013