Petjtloners Piaintiffs HSQH COURT OF CKHATTISGARK. BiLASPUR Writ Petition i227) No.1737 of 2007 1. Rajpal Sahu, Aged About-70 years (at present 71 years), S/o-Shri Blpat Ram »'t' Resppndents 3. 5. 6. 7. 8. 9. 2. 3. 4. Sahu^.- X? Distt.-Raipur (C.G.) R/n-^. '.l'"'iL?^- ^^-n^i Ghanshyan*. ~^ed About-50 years (at present 51 years), S/o~Shri Rajpal Sahu, R.-'o-Viilage-Mandhar, Distt.-Raipur (C.G.) Kesari Bai, Aged About-50 yeare (at pressnt 51 years), D/o-Shri Rajpai Sahu. Kasturi Bai, Aged About-52 years (at present 53 years), D/o-Shri Rajpal Sahu. Urmila Bai, Aged About-45 years (at present 46 years), D/o-Shri Rajpal S8hu. Radha Bai, Aged About-40 years (at present4"! years), D/o-Shri RajpaiSahu. M.urari, Aged About-38 years (at prssent 37 years), S/o-Shri Rajpai Sahu Goverdhan, Agesl About-32 yesrs (at prssent 33 years), S/o-Shri Rajpa! Sahu, Laxman, Aged About-30 yeare (at present 31 years), S/o-Shri Rajpa! Sahu. From Petitioner No.2 to 9 through Rajpai S/o-BJpatram Sahu, A!l are resident of Viiiage-Mandhar, P.H.No.8 Ra.Ni.M. and Tehsil-Simga, distt.-Raipur (C.G.) Versus Savifribai, D/o-Phooichand Sahu, Aged About-48 (at pressnt 41 years), Kastkar, R;'o-Vi!lage-Mandhar, Distt.-Raipur (C.G.) Radheshyam, 6,'o-Phooichand Sahu, Aged About-45 (at present 46 years), Kastkar, R/o-Viilage-Mandhar and Navagaon, Teshii-Bemetara, Distt.Durg Tehsiidar Simga, Distt-Raipur (C.G.) Tehsil-Simga, Sfate of ChhatUsgarh Thnsugh Coilector, Raipur (C.G.) •{Wrii Pstition undsr ArUcie 227 of the Consiitufion of Sndia} ^^ !'\ Present: Mr.Wprasen Agrawai, counsei for ths petltionsre. Mr.S.C.Verma, counsel for respcndent No.1 . Nons pressnt for respondsnt No.2. Mr.R.K.Jha, Dy.Govt.Advocate for respondente No.3 and4/State. •->'- Sinaie Bench: Kon'bie Mr. T.P. Sharma. J ORAL ORDER ^20-7-20105 1. By this petiiion, the petitioners have chaiienged the legdity & propriety of the order datsd 3.2.2007 passed by tha 2 Additional District Judge, Baiodabazaar, in Misc.CM! Appea! No.017'2006 , affirming the order datsd 17.8.20)5 passed by the Additionai Civil Judge Ctass-ii, Balodabazaar, in Civi! Suit No.90A/04, whereby suit was dismissed on the ground that suit is barred by principal of res jydfcste and also on the ground that the petitionsrs havs failed to produce the documents as dirscted bythe Court below under Order 16 Rule 20 of the Code of Cwil Procedure, 1908 (in short 'the Code'). White affirming ths order pariiy by the appeliate Court, tfte appeiiate Court has arrivsd at a finding that suit was not barred iindsr Section 11 of the Code, but ths Court belov.' has rightiy dismisssd fte suit under Order 16 Ruie 20 of the Code. 2. ! have heard Ssarned counsei for the parties and perused the order impugnsd and order dated 17.8.2005. 3. Sust v/as substantially dismissed on the ground of non-production of doouments as dirscted or rsquired by the Court below in terms of Order 16 Ruie 20 of ihs Cocie which reads as undsr:- "20. Consequence of refusai of party to give evidence when caiied on by Court.-Where any part to a suit prasent in Court refuses, without iafrful axcuse, when required by ths Court, to give evidence or to produce any document then and there in his possession or power, the Court may pronouncs judgmenS against him or make such order in relation to the suit as it ttsinks fit." 4. Provis'ions of Order 15 Rute 20 ofthe Cods ars not manciatory in naiurs. The Court is competent to make such other order in relation io ihe suit. in the absencs of sny documsnt reisting to bar crsated under Ssction 11 of the Code, the Court was undsr obiigstion io proceed with the triai of the suit, but instead of proceeding for trial, leamed AddiSional Civii Judge Cisss-ii has dtemissed the suit under Order 16 Ruls 20 of ths Cods. Action of the Addittonal Civti Judse Ciass-11 is not just and proper and was harsh. Such order is not sustainable under ihe iaw. 5. Consequsntiy, the petition is ailowed. The order impugned and the order dated 17.3.2005 passed by the Additional Civii Judge Ciass-i!, Baiodabazsar are hereby set aside. The Additional Civit Judge Class-it, Baiodabazaar or its successor-in-offics is directed to provide opportunity of hearing to the parties and decids ihe suit afrssh on ite own merit. The parties are directsd to remain present before the Additionai Civii Judge Ciass-SI, Baiodabazaar on 27.3.2010 for further proceedings of ths case. No order as So coste. ____- Sdf- T.P. Sharma Judge v k/