2025:CGHC:16566 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.(227) No. 1066 of 2025 Ashok Tiwari S/o Late Ramkesh Tiwari Aged About 58 Years Occupation- Business, R/o Village- Sarhari, P.S. And Tahsil- Pratappur, District : Surajpur, Chhattisgarh ---- Petitioner Versus 1 - Sunil Kumar Tiwari S/o Late Ramkesh Tiwari Aged About 42 Years, Occupation- Secl, R/o Mohalla- Goverdhanpur, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh 2 - The State Of Chhattisgarh Through The Collector, Surajpur, District : Surajpur, Chhattisgarh Respondents For Petitioner : Shri Divyanand Patel, Advocate. For Respondent No.1 : Shri Chandresh Shrivastava, Advocate. For Respondent No.2/State : Shri Mayur Khandelwal, P.L. Hon'ble Shri Justice Sachin Singh Rajput Order on Board 03/02/2026 1. Heard. 2. The petitioenr/defendant has filed this writ petition under article 227 of Constitution of the India being aggreived by the order dated 31/07/20225 passed by the learned Civil Judge, Class-I, Pratappur, Surajpur (C.G.) in Civil Suit No. 07A/2019 by which the application of the petitioner/defendant filed under Order 16 Rule 1 of the Code of Civil Procedure, 1908 (for short ‘CPC’) was rejected. 3. Learned counsel for the petitioenr submits that the respondent/plaintiff who happens to be the brother of the petitioner/defendant, filed a suit for ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2026.02.10 12:09:42 +0530 -2- declaration of title, possession and permanent injunction in respect of the suit property which is properly described in schedule – “A” “B” and “C” of the plaint. It is further submitted that the father of the parties passed away in the year 1977-78, as per further pleadings of the plaint, the property described in the schedule was purchased by the joint income of the family by registered sale deed dated 18/09/1991, 27/09/1991, 22/09/1996 and 26/12/1995. The written statement of the petitioner/defendant was filed denying the averments of the plaint specific pleading was raised that the suit property was purchased by the petitioner/defentant from his own source of income. The petitioner is running a brick klin and is generating the income and thus financially sound to purchase the suit properties. Issues have been framed by the learned Civil Judge particulary issue No.1 which speaks that as to whther the suit properties was purchased by the respondent/plaintiff and petitioner/defendant No.1 by joint funds. As the defense of the petitioner/ defendant No.1 from the very begining was that the suit property was purchased by him from his own income, in order to prove the same, it was necessary for him to examined the witnesses with record containing the registration of the firm etc. In order to prove the same, the petitioner is required to examined the clerk of record / officer of the Collector. Of-Course in the list of witnesses submitted by the petitioner/defendant No.1 under Order 16 Rule 1 of the CPC, inadvertenly, this witness was not mentioned. However, the petitioner filed an application under Order 16 Rule 1 of the CPC for issuance of summons for calling this witnesses for recording his evidence with necessary record. That application is rejected by the impugned order. He further submits that if the witnesses to be summoned as prayed in the application is not examined, the petitioner/defendant No.1 would not be able to prove his defence with regard to his source of income. He further submits that procedure in civil suit is not to -3- defeat the justice but infact for the aid of justice. No prejudice would be casued to the respondent No.1 / plaintiff, if the said witness is examined as his always at liberty to cross examine and disprove his credibility. Thus, the impugned order dated 31/07/2025 may be set-aide and the application under 16 Rule 1 of CPC filed by the petitioner / defendant No.1 may be allowed. In order to advanced his sumission he placed reliance upon the judgment passed by the Coordinate Bench of this Court in WP 227 404/2025 dated 30/07/2025. 4. Learned counsel for the respondent No.1/plaintiff vehemently opposes the submission made by learned cousnel for the petitioner. He submits that the suit property was purchased by the joint fund of the petitioner and respondent. This issue has to be proved by the plaintiff by leading the cogent and prudent evidence. He further submits that initially an application under Order 8 Rule 1 of CPC was filed by the petitioner submitting certain documents like registration certificate from the Government and Director, District Industrial Centre etc. The application was rejected and the documents which the petitioner intends to prove by calling the witnesses has not been taken on record. Thus, once the petitioner failed in his design to bring on the record the necessary documents, by way of calling the witness is trying to over turn the earlier order passed by the Civil Judge rejecting his application to bring document on record. He further rsubmits that the name of the witness was not included in the list of witnesses submitted by the petitioner / defendant No.1 as such it cannot be summoned by the learned Civil Judge. If the petitioner want to call those witnesses on his own, he may do so, if the law permits. He further submits that the palintiffs evidence was already closed and four witnesses of the defendant have already been examined in the year 2023. For almost two years on one pretext or another, by filing different -4- applications, the petitioner/defendant No.1 is delaying the conclusion of the trial. Thus writ petition has to be rejected. 5. Heard learned counsel for the parties and perused the record. 6. The suit is filed by the respondent No.1/plaintiff. As per pleading of the suit for the suit property described in the plaint, declaration was sought. The defense which has been put-forth by the petitioner appears to be on the fact that the suit property was purchased by him through his own source of income. It is not in dispute that the name of the witness whom the petitioner wants to call by issuance of summons is not in the list of witnesses submitted by him in lieu of Order 16 Rule 1 CPC. An order dated 26/02/2022 clearly indicates that the certain documents including tempropary registration certificate of the District Industry Centre agreement etc. was denied to be taken on record by the learned Civil Judge. It appears that once the said application was denied, the petitioner filed this application to call the witness to prove those fact through documents. While deciding the application, the learned Civil Judge has observed that earlier, the petitioner /defendant No.1 has filed an application under Order 16 Rule 14 CPC which was rejected by it on 27/06/2024 against which the writ petition is filed before this Court and the same was withdrawn. The learned Civil Judge is also observed that the documents which the petitioner wanted to prove by calling the witness is not on record as rejected by the Civil Judge on 22/06/2022. It has also been observed that order has not been subject to challenge. The finding has been recorded that to exhibit those documents which not taken on record by witnesses appears to be incorrect. Of-course the liberal approach to be adopted in order to prove the pleadings by the parties and for that purposes they may be permitted to call the witnesses. But from the fact which emerges from the documents appended with the writ petition appears it is quite clear -5- that petitioner initially failed to bring on record the documents and later on by calling the witness wants to prove the same. The name of that witness is also not in the list of witnesses. Taking into consideration, the above stated facts, the finding so recorded by the Civil Judge rejecting the application under Order 6 Rule 1 CPC cannot be said to be illegal. The Civil Judge has exercised the jurisdiction considering the material on record, there is no jurisdictional error. Writ petition does not appear to have any merit and is liable to be dismissed. The case law relied by the learned counsel for the petitioner does not fit into the facts of this case, thus distuiguishable and would not come to rescue of the petitioner. However, liberty is reserved in favour of the petitioner to call the witness on his own, if so desire. 7. Accordingly, this writ petition is hereby dismissed. Sd/- Sd/- (Sachin Singh Rajput) Judge Ashish