</ f^^v..T:f^ -^'.r.•••.•r^^^vy^-.r j-^f-^-f^^ IN THE HIGHCOURT OF JUDICATURE AT BILASPUR \ ' .• • . . '• ••••'. :. -•;•'.-• (CHHATTISGARH1 WRIT PETITION (ART.2271 N0. " ~ /2009 PETITIONER/ PLAINTIFF /- : RESPONDENTS/ DEFENDANTS Mohan Parmar, . S/o Shir Morarji Bhai Parmar, Aged about 43 years (Now 48 years), Resident of Loharpara, Ward No. 26, Tahsil & District Rajnandgaon (CG.) VERSUS Morarji Bhai Parmar, S/o. Late Shri Biramji Bhai Parmar, Aged about 71 years (Now76 years), Resident of Shantinagar Ward No. 4, Tahsil and District Rajnandgaon ^^ ...<b' ^- ..-• ^jy"^ 00^ /•^s?/ >'&iJ~ O- .••' /2. Smt. Manibai (Mani Ben), W/o Morarji Bhai Parmar, Aged about68 years (Now 73 years), Resident of Shantinagar, Ward Np. 4, Tahsil and District Rajnandgaon (CG.) Bhupesh Parmar, S/o Shri Morarji Bhai Parmar, • Aged about 27 years (Now 32 yeaiis), Resident of Shantinagar Ward No. 4, Tahsil and District Rajnandgaon (CG.) -^4. Smt. Sangita Chhajed, W/o Sanjay Kumar Jain, Aged about 33 years (Now 38 Resident of Ganjline Tiranga Chowk, Tahsil and District Rajnadgaon (CG.) Smf. Jhankari Bai, W/o GambhirMal Jain, Aged about 58 years (Now 63years), Resident of Ganjlme Tiranga ehowk,. Tahsil and District Rajna.ndgaon.g^G,); ^- £K WMT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA 9s ii HIGHCOURT QF GHBATTISGARH AT BILASFUR PETmONER PIaintiff Writ Petitioa(227)No. 800 Of 2009 MohanParmar Versus RESPONDENTS : MorarjiBhai Parmar & others Defendants WRITPETITION UNDERARTICLE227 OE THE CONSTITUTION OF DTOIA (SB; Hon'bleMr.N.K.Asarwal.J.y Present : Shri SumesllBajaj, Advocate tbr thepetitioner. ShriParagK.otecha.AdyocateforrespjOndents. ORALORDER i CPassedon 28.02.2011) ; 1. Legalityandpropnetyoforderdated 06.01.2009, passed by the Ist Civil Judge, Class I, Ra}riahdgaon, in Civil Suit No. 31-A/08 is under assail in the uistant petition. 2. Shri Bajaj, leamed coimsel appearing for the petitioner submits: the applicationdated 01.01.20Q9 (Annexure P/10) filed by the petitioner under Section 65 of the Evidence Act is defective, inasmuch as, rieeessary mgredients of Section 63 read wifh Section 65^^ Evidehce iA^were not mshtkmedinthat application, and this petition may he disposed pf fbr aboye relief permittmg the petitioner to file better application ia thisregard. Hewoilld further submif the trial court has closed the petitioner's ©pportunitytolead evidence yide order irnpugned without there Ibeiag any ocGasion fbr it which is contrary-to lawanddeserYes to be set aside. On the other hand, Shri Parag Kotecha, leamed counsel appearing for the respondentwould submit that trial court has dismissed the application filed by the petitioner under Section 65 of the Evidence Act on its own merits and the petitioner should not be permitted to file better application in the facts and circumstance of the case. He would further contend that the ti-ial court has rightly elosed the petitioner's opportunity to adduce furfher evidence masmuch as the case ispending smee 2004. 4. I have heard fhe counsel appearing for fhe parties and perused the ordermipugned. ' 5. Section 63 ofthe Evidence Act defines seeondary evidence whereas Section 65 deals with how and in what manner secondary evidence can be permitted to lead in the case. The trial court dismissed the petitioner's application having found contradictory stand taken by fhe petitioner in FIR vis-a-vis the application for pennission to lead secondary evidence. In such circiunstaaces, the order passed by the trial court cannot be faulted wifh. However, in the mterest ofjustice, it would be appropriate to grant liberty to the petitioner fbr filing proper application in tenns of provisions of Section 63 read with Section 65 oftheEvidenceAct showing bonafide reasons therefor. 6. So far as the observation of the trial court regarding closer of petitioner's evidence is concemed, on the face it appears that, the trial court has passed the above order at its own without there being any occasion for it. Thus the order impugned lo the above extent is not m accordance with law and the same is set aside, so far as trial ^Gourt's order with regard to lANo. 8 is concemed, the p^tition is disposed ofgranting Uberfy t6 the petitioner to file proper and better application in terms 6f Sectioii 63 read with Seetion 65 of the EvidfinceActshowilig^bonafidereasQns. The matter is pendmg smg along, the tnal coiM is du^cted^to^^ the sameexpediticmsly. •• '^ . ':. ^ ' ^ Sd/- \ N.K. Agrawal i Judge ;; t3J