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2000 DIGILAW 877 (RAJ)

Manoj Kumar Sharma v. Jagdish Thanwardas

2000-07-21

ARUN MADAN

body2000
Honble MADAN, J.–This revision petition of the plaintiff arises out of order dated 25.3.2000 in civil suit No. 257/96 where the trial Court (ADJ No.8, Jaipur City) allowed defendant (respondents) application under Order 13, Rule 2, CPC, for filing additional documents subject to costs of Rs. 500/-. (2). The petitioner plaintiff who is an advocate of this court having let out his premises (commercial) in nature to the defendant (tenant) instituted an eviction suit against him on grounds of (a) default in payment of the rent, (b) subletting and (c) reasonable bonafide necessity of the landlord. Written statement was filed by the respondent contesting the suit. the issues were framed. Additional Issue Nos. 9 & 10 were also framed on 2.12.94 and 6.11.96 respectively. The plaintiff adduced his evidence and closed it on 11.2.99. The examination in chief of defendant who appeared as DW1 was completed on 6.11.98 and thereafter since the plaintiff moved certain applications the trial Court first considered the maintainability of the same, those applications. Ultimately, the plaintiff cross examined Jagdish defendant as DW 1 on as many as nine dates and closed his cross-examination on 12.10.99. Since, it has been plaintiffs case that the defendant had sublet the suit premises without permission of the plaintiff to one Dinesh Parwani who had unauthorisedly established business of STD/PCO shop thereon, plaintiffs application for summoning the concerned file from the telephone department, as to the permission for establishing business of STD/PCO shop, was allowed by the trial court subject to costs of Rs. 400/-. The plaintiff had then cross examined the defendant. Thereafter the defendant moved an application under Order 13,Rule 2 CPC for taking on record certain documents which he was relying upon e.g. (1) partnership deed dated 16.1.95 and (2) originals of income tax returns of the years 1995-96 to 1998-99 produced in the income tax department, to which the plaintiff contested by filing his reply. The trial Court after taking into consideration respective arguments of both the parties allowed defendants application as indicated above by the impugned order. Hence this revision petition. (3). The trial Court after taking into consideration respective arguments of both the parties allowed defendants application as indicated above by the impugned order. Hence this revision petition. (3). Shri Manoj Kumar Sharma petitioner appearing in person, contended inter alia that the trial Court has gravely erred in not appreciating provisions of Order 13, Rule 2, CPC in its true perspective and passed the impugned order dated 25.3.2000 which shows total non application of mind of facts and pleadings of the parties in pending civil suit. It was contended that requirements of Order 13, Rule 2 CPC have been clearly ignored and the trial Court has arbitrarily applied principle of liberal approach which is in different context altogether and has committed error of law. (4). To elaborate his contention, Shri Manoj Sharma urged that he (plaintiff) never pleaded in his plaint that the defendant tenant had sublet the tenanted shop to one Shri Dinesh Parwani nor the tenant pleaded in his written statement that Dinesh Parwani was a partner in his business. His second submission was that it was defendants case that partnership deed dt. 16.1.95 and income tax returns were with his advocate Shri Hari Singh and GS Fatehpuria (Tax advocate) but were misplaced. According to Shri Manoj Sharma, such averments of the defendant were and are not supported by any affidavit of aforenamed advocates. Shri Sharma has also submitted that in view of the averments in paras 1 & 2 of defendants application dt. 8.3.2000 and affirming the averments in para 1 by him tantamount to filing a false affidavit in the court. According to Shri Manoj Sharma, non filing of affidavit of the aforenamed advocates in support of para 2 of the application under consideration is a sufficient circumstance to hold the defendant disentitled for the relief sought under Order 13, Rule 2 CPC. He cited the decisions in Vinod Kumar vs. Surjit Kaur (1); Mrs. Om Prabha Jain vs. Abnash Chand (2) and Gopal vs. Hirachand (3). (5). Shri Manoj Sharma then vociferously contended by way of his third contention that application of the defendant should have been treated as abuse of process of law and because of affirmation of a false affidavit of the defendant tenant, the trial Court ought to have initiated contempt proceeding in view of the decision of the Apex Court in Murray & Co. vs. Ashok Kumar Newatia (4), but the trial Court ignored this aspect of the matter despite the fact that aforesaid judgments copy was personally handed over by him to the Court. (6). Shri Manoj Kumar Sharma lastly urged as his fourth contention that the issue as to sub-letting was settled prior to 2.12.94 whereas the documents sought to be brought on record at belated stage having been manufactured thereafter some times in 1995-96, do not fall within parameter of Order 16, Rule 2 read with Order 13, Rule 2 CPC and therefore, the defendant failed to explain good and sufficient cause for belated production of the documents. (7). Per contra, Shri J.P. Goyal learned counsel for the defendant respondent contended that the documents for which the defendant has sought permission by way of aforesaid application are very important documents viz. income tax returns and the partnership deed executed between him and Dinesh Parwani, so as to disprove the allegation levelled by the plaintiff for the eviction as a ground of sub-letting the suit premises and parting with possession thereof to aforenamed partner Dinesh Parwani as averred in the amended plaint. Shri Goyal then contended that for justifiable reasons the defendant could not place on record original partnership deed and Income Tax returns earlier for the purpose in question, hence it had become inevitable for him in the interest of justice to move the application under Order 13, Rule 2 CPC which was rightly allowed by the trial court which is under challenge in this revision petition. (8). Shri J.P. Goyal learned counsel for the defendant placed reliance upon the decisions in Raghunandan Saran vs. Amrit Lal (5) and Billa Jagan Mohan Reddy vs. Billa Sanjeeva Reddy (6). (9). I have heard the learned counsel for the parties and perused the impugned order so also the record. (10). (8). Shri J.P. Goyal learned counsel for the defendant placed reliance upon the decisions in Raghunandan Saran vs. Amrit Lal (5) and Billa Jagan Mohan Reddy vs. Billa Sanjeeva Reddy (6). (9). I have heard the learned counsel for the parties and perused the impugned order so also the record. (10). Having considered the rival contentions of the parties with reference to the impugned order, and the decisions cited at the bar, I am of the opinion that whatever arguments urged by Shri Manoj Sharma are such which go to root of the issues raised in the main suit because all the questions as to the variance between pleadings and proof, or the genuineness and admissibility of the document sought to be brought on record under Order 13, Rule 2 CPC, and further as to initiation of contempt proceedings for alleged false affidavit of defendant by virtue of non filing of the affidavits of aforenamed advocates for misplacement of the disputed documents, are not totally germane to the controversy at issue in this revision petition which arises out of the question as to whether the documents sought to be brought on record, have rightly been allowed to be produced in evidence in exercise of powers and discretion vest under Order 13, Rule 2 CPC. All the questions arising out the contentions of the parties cannot be gone into in this petition otherwise they may prejudice rights of the parties in respect of their respective cases pleaded in the main suit and they are left open for being considered and decided while deciding the eviction proceedings. (11). In Vinod Kumar vs. Surjit Kumar (supra), the Rent Controller and the Appellate Authority declined to pass an order of eviction in favour of the respondent (landlady) but the High Court had reversed their Judgments and directed eviction against which the tenant preferred Special leave before the Supreme Court. (11). In Vinod Kumar vs. Surjit Kumar (supra), the Rent Controller and the Appellate Authority declined to pass an order of eviction in favour of the respondent (landlady) but the High Court had reversed their Judgments and directed eviction against which the tenant preferred Special leave before the Supreme Court. The Apex Court held inter alia (1) that the pleadings of the parties form the foundation of their case and it is not open to them to give up the case set up in the pleadings and prepare a new and different case and (2) that the rule that when the Rent Controller and the Appellate Authority have rendered concurrent findings of fact, the High Court is not entitled to disregard those findings and come to a different conclusion of its own, would apply only where the findings have been rendered with reference to facts and not on the basis of non existent material and baseless assumptions. (12). In Om Prabha Jain vs. Abnash Chand (supra) the Civil Appeal before the Supreme Court had arisen out of Judgment of the High Court of Punjab and Haryana whereby election of Om Prabha Jain was declared to be void in the election petition based upon allegations of corrupt practice against successful candidate. The Apex Court dealing with Order 6, Rule 2 CPC, held that the ordinary rule of law is that evidence is to be given only on a plea properly raised and not in contradiction of the plea. The Apex Court refrained from deciding as to what the pleading and the proof should be so as to determine whether a corrupt practice had in fact taken place or not. (13). Both the decisions in Vinod Kumars and Om Prabha Jains cases (supra) cited by the plaintiff do not at all help him in advancing his case in this revision petition where this Court is not dealing with the controversy at issue to determine whether there is variance between pleading and proof and that question has yet to be adjudicated by the fact finding court, i.e. the trial court at the time of final adjudication in suit for eviction. In this revision petition the controversy is limited to the factum of production of certain documents under Order 13, Rule 2 CPC. (14). In this revision petition the controversy is limited to the factum of production of certain documents under Order 13, Rule 2 CPC. (14). Next decision cited by the plaintiff petitioner is in the matter of State of Orissa vs. Sudhansu Sekhar (supra), wherein the Apex Court observed as under: ``A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to building upon it. (15). With due respect to the observations of the Apex Court and without disputing the principle of law laid down in afore quoted observations, the cited decision does not at all render in assistance in advancing plaintiffs case in this revision petition. (16). As regards the decision in Murray & Co. vs. Ashok Newatia (supra) relied by Shri Sharma on the assertion of contempt proceedings not initiated by the trial Court, I am of the considered opinion that aforesaid decision is not at all applicable in the light of the controversy at issue raised in the present revision petition arising out of order allowing the defendant to produce certain documents under Order 13, Rule 2 CPC. In Murrays case (supra) contempt proceedings were initiated by the Apex Court by issuing notice to the respondents therein for wrong assertion of facts pertaining to the sale of immovable property in an affidavit filed before it. The Apex Court ultimately after final adjudication on receipt of the reply of the contemners, held that making a positive affirmation in affidavit despite knowing the same to be incorrect, amounted to contempt and it is immaterial whether contemners has obtained definite advantage or not. It further held that on facts substaintail interference in the course of justice would warrant punishment and thus the contemners were held guilty of contempt and sentenced to pay fine of Rs. 2500/-. (17). In the instant case, in reply to the application of defendant, it was the plaintiffs case that the defendants affirmation to the averments in para 2 of his application was false because of non filing of affidavits of two advocates namely, S/Shri Hari Singh and G.S. Fatehpuria. 2500/-. (17). In the instant case, in reply to the application of defendant, it was the plaintiffs case that the defendants affirmation to the averments in para 2 of his application was false because of non filing of affidavits of two advocates namely, S/Shri Hari Singh and G.S. Fatehpuria. But, surprisingly enough, to substantiate his case, plaintiff himself, has failed to produce his affidavit and further failed to explain as to how defendants affirmation was false and his conduct is depicted to have caused obstruction of justice so as to warrant punishment under the Contempt of Courts Act. Therefore, the trial Court has rightly found the plaintiff at fault for not having substantiate his case either for contempt or for abuse of process of law against the defendant. (18). Now, I deal with the decisions cited by Shri J.P. Goyal learned counsel for the defendant. In Raghunandan Saran vs. Amrit Lal (supra), the plaintiff sought permission to file a letter purporting to have been written by Ramchand Chopra (deceased) to the then landlord confirming the terms of the tenancy in respect thereof. This request was opposed by the defendant inter alia on the ground that the document sought to be produced was a lease deed but being neither properly stamped nor registered was inadmissible in evidence. The request under Order 13, Rule 2 CPC was declined by the trial Court. In revision petition, the Delhi High Court after taking into consideration the ground for late production of the document in question to the effect that it was not traceable earlier, observed that there being no apparent reason for the party seeking to introduce it to withhold this document of vital importance to his case, partys submission deserves to be accepted. In Billa Jagan Mohan Reddys case (supra) application seeking production of the documents filed at the stage of arguments before trial Court after obtaining those documents from Revenue Authorities, the Apex Court held that in case of delay in producing documentary evidence before settlement of issues, explanation for delay need not be as rigorous as required under Section 5 of the Limitation Act and, therefore, the trial Court erred in refusing to condone the delay and accepting the documents, and that apart, even otherwise, the appellate court can receive additional evidence if it considers to be needed in the interest of justice under Order 41, Rule 27, CPC. (19). (19). Rule 2 of Order 13 CPC provides effect of non production of documents and it affords an additional chance at stage after production of documents at the settlement of issue, to produce any documentary evidence which could not have been produced earlier under Rule 1 of Order 13 CPC but subject to condition that a good cause is shown to the satisfaction of the Court for the non production thereof earlier, for which the Court is required to record the reasons for receiving such documents at later stage produced under Rule 2 of Order 13 CPC. Thus, in my considered view, if a party has good and sufficient cause being shown to the satisfaction of the Court as to his inability to produce a particular document which is very relevant for just decision of the case, and further explains satisfactory reasons for non production of such documents at earlier stage which could not be produced despite due diligence, then the Court should permit such evidence to be brought on record and should not decline such permission. In the instant case, in my view the defendant has explained justifiable reasons showing good and sufficient cause as required under Order 13 Rule 2 CPC for his inability to produce originals of documents viz. income tax returns of the years 1995-96 to 1998-99, as well as partnership deed, on the grounds that these documents were misplaced in the offices of his advocates namely S/Shri G.S. Fatehpuria and Hari Singh (tax advocates). Once admittedly the plaintiff amended his plaint stating therein that the tenant has put in illegal partner Dinesh Parwani in his business of STD/PCO Shop by sub-letting the rented premises, inasmuch as he put questions in cross examination to Jagdish (DW1) (defendant) not only as to his alleged pleading of sub-letting to illegal partner but also the cross examination as to the partnership deed being produced in the income tax departments, in my considered view, good cause is shown for production of the document in question at a later stage and the trial Court has rightly allowed the defendant for production of documents at a later stage in the facts and circumstances of the case and has rightly rejected the plea of plaintiff, who has already been compensated by costs of Rs. 500/-for his cause of justice pleaded in reply to the application. 500/-for his cause of justice pleaded in reply to the application. That apart the evidence of defendant has yet to be completed, no prejudice would be caused to either of the party (plaintiff) who will have also an opportunity not only by way of cross examination in respect of these documents but also by way of leading his evidence in rebuttal. Thus viewed, rather interest of justice demands to grant permission to the defendant for production of such documents in evidence at a later stage. (20). I am in agreement with the trial Court which came to the conclusion that it is true that the affidavits of the tax advocates with whom the documents had allegedly misplaced, have not been filed but the plaintiff himself has not filed any affidavit denying averments or the affirmation of the defendant. As already discussed above, the plaintiff failed to produce any affidavit to support his assertion as to the defendants affirmation being false. Moreover, in my considered view, right to defend in the light of pleadings developed after settlement of issues or during the oral evidence being adduced or at the time of cross examination, cannot be taken away atleast on the pleas raised by any party in reply to the application under Order 13 Rule 2 CPC because it is the ample discretion of the trial Court to afford reasonable opportunity to any party like defendant in the instant case. The trial Court has exercised its jurisdiction vested in it under Rule 2 of Order 13 CPC in accordance with law after having recorded its reasons of satisfaction upon the defendant having shown good and sufficient cause for his omission to produce the documents in question at earlier stage. I do not find any jurisdiction to interfere with the impugned order that too on the assertions made by plaintiff in this revision petition. Hence, the petitioner has no case on merits to invoke revisional jurisdiction under Section 115 CPC. (21). As a result of the discussion made above, this civil revision petition being devoid of any merit is hereby dismissed. No order as to costs. The impugned order dated 25.3.99 of the trial Court in civil suit No. 257/96 (Old No. 48/93) allowing defendant (respondent)s application dated 8.3.2000 filed under Order 13 Rule 2 CPC for taking documents on record, is upheld. No order as to costs. The impugned order dated 25.3.99 of the trial Court in civil suit No. 257/96 (Old No. 48/93) allowing defendant (respondent)s application dated 8.3.2000 filed under Order 13 Rule 2 CPC for taking documents on record, is upheld. However, since the revision petition arises out of suit for ejectment which is pending since 1993, the trial Court is directed to expeditiously decide the suit, itself, but not beyond three months from the receipt of this order. A copy of this order be sent to the trial Court forthwith.