-v m THE HIGH COURT OF JUDICATURE AT BILASPUR, CHHATTISGARH W.P. N0:" ^-~7^/ /2005 •^. Petitioner Plaintiff respondents Defendant ,.-^r \°<..-&^ ^^s^ ^'•'f^y />>'^y ^•^>v"- ^y^ ^y ^' . Barkat Ali Farishta , S/o Late Rajawali Farishta, Aged about 65 years, R/o Kawardha Bada, Civil Line ,Raipur Distt Raipur (C.G.). Vs 1) Smt. Vyay Laxmi ShamiaWfeiow of Sri Govind Prasad Shrazna ,; Aged about 60 Years R/e-Deepak Bhawan, Tikra Para, Raipur, 2) Sri Radheshyam Verma S/o Sri Lallu Prasad Vernia Aged about 50 years, R/o Purani Basti Raipur, Distt- Raipur 3) Sri Ram Babu Veram S/o Lallu Prasad Verma Aged about 45 years R/o Purani Basti Raipur WRIT PETITION UNDER ARTICLE 226/22f OF CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPMATE WRITS, QRDERS, DIRECTIONS OR LIKE ETC. F^~ HIGH COURT OF CHHATTISGARH AT BILASPUR Smgle Bench: Hon'ble Shri Justice Prashant Kumar Midira Writ Petition No. 2761/2005 Barkat AIi Farishta Versus Smt. Vijay Laxini Sharma and others QRDER Postfor 0^^10-2010 Sd/- prashantKumarMishra Judge -^ : ^. fflGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishi-a PETITIONER Writ Petition No. 2761/2005 : Barkat AIi Farishta Versus RESPONDENTS : Smt. Vijay Laxmi Sharma and others Appearance: Shri Goutam Bhaduri, counsel for the petitioner. WRIT PETITION UNDER ARTICLE226/227 OF THE CONSTITUTION OF INDIA ORDER fo4 -.10.2010) This is plaintiffs petition under article 227 ofthe Constitution oflndia challenging the order passed by the District Judge, Raipur on 2/08/2000 rejecting petitioner's application under Order 18 Rule 3 read with Order 18 Rule 2 ofCPC. (2) The plaintiff preferred the suit some times in the month of September, 1983 for specific performance ofcontract ofsale entered between him and the defendants No.l, 2(a) and 2(b). The defendant No.l filed her written statement in the month ofMarch 1985. (3) The plaintiff was examined on 5/04/1986. The defendant No. 1 sought amendment in the written statement on 14/02/1989 to the effect that the subject agreement is outcome of misrepresentation at the instance of her father-in-law, Ramgopal Sharma and that even the defendant No.2 has not received the amount of Rs.7000/-. The issues in this suit vvas fi-amed earlier on 17/04/1985 and additional issues \ were framed on 12/03/1993. i—" ^-^ -2- (4) The plaintiff moved the subject application under Order 18 Rule 3 read with Order 18 Rule 2 (4) CPC seeking permission to adduce evidence covering amended issues as also to the efifect that there being several issues many of which are to be proved by the defendant, the defendant No.l may produce her evidence and thereaflter the right of the plaintiff be reserved for answering the evidence produced by the defendant No.l. (5) The defendant No.l in her reply to the subject application stated that exercise of right under Order 18 Rule 3 of CPC should be made before starting evidence and that additional issues have not been fi'amed after amendment. The plaintifF has closed his evidence on 5/04/1986, but did not exercise the option till 28/04/2000 and that. the application has been moved when the defendant No.l was to be examined on commission on 30th April 2000. The defendant No.l prayed for dismissal of the application by submitting that fhe application has been made for delaying the trial ofthe suit. (6) The learned District Judge has rejected the application on the ground that if the plaintiff wanted to reserve the right of rebuttal, he should have moved application before defendant entered into defence evidence and also that if the plaintifif wanted to adduce additional evidence on additional issues he should have done so before further cross examination of plaintiff. However, the plaintiff closed his evidence on 12/01/1998 without expressing the desire to submit evidence in terms of Order 18 Rule 2 CPC after the evidence of ^- defendant No.l. It has also been observed in the impugned order by the learned District Judge that the case is pending since 17 years and the plaintifFis unnecessarily dragging on the litigation. (7) Learned counsel for the petitioner has argued that the plaintiff can exercise the right before the defendant's evidence and thus the application should have been allowed. (8) Leamed counsel has placed reliance on Inderjeet Singh Vs. Maharaj Raghunath Singh and others, AIR 1970 Rajasthan 278 and IHapu Nookalamnia Vs. lUapu Simchachalam^ AIR 1969 A.P- 82. (9) In the present case, the suit was filed in September, 1983. The written statement was filed in March 1985. The plaintiff examined himselfin April 1986 and since thereafter the matter was posted for evidence. From the impugned order, it vvould appear that the application for amendment submitted by the defendant was allowed and incorporated on 14/02/1989 and thereafiter the plaintiffwas cross exammed and he himself closed his evidence on 12/01/1998 and the subject application vvas moved on 28/04/2000. (10) Though Rule 3 ofOrder 18 ofCPC does not provide as to at what stage the option is to be exercised and the judgment of Rajasthan High Court is to the effect that option can be exercised before the other party enters evidence, this court is not inclined to interfere vvith the impugned order, because the suit is pending since / September 1983 i.e. for more than 27 years and that the plaintiff ^' m^ ^- himselfclosed his evidence on 12/01/1998 without reserving his right to again enter the witness box after defendant adduces evidence. It cannot be lost sight of that the suit is for specific performance of contract. The agreement is for purchasing 5.70 acres ofland in Raipur town which was entered into in the month of November and December, 1980. (11) In the matter of Suiya Dev Rai Vs. Ram Chaiider Rai and others, (2003) 6 SCC 675 the Hon'ble Supreme Court has held that exercise of power under article 227 of the Constitution of India should be sparingly made and that the power should not be exercised to correct mere errors oflaw. In the matter ofCeIina CoeUio Pereira (Ms) and others Vs. UIhas Mahabaleshwar Kholkar and others reported in (2010) 1 SCC 217 also the Supreme Court has laid down principles as to when powers under article 227 ofthe Constitution of India should be exercised. (12) Applying the principles in the facts ofthis case and particularly when the litigation is pending since last 27 years and the further proceeding ofthe trial court has been stayed by tiiis court firstly in eivil revision and thereafter in writ petition for last 10 years, this court is not inclined to interfere with the impugned order in exercise ofpower under article 227 ofthe Constitution oflndia. (13) Consequently, the writ petition fails and is hereby dismissed. Sd/- Prashant Kumar Mishra Judge ¥ ^