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2008 DIGILAW 1083 (PAT)

Rajeshwar Pandey v. Kalimullah Khan

2008-08-05

MIHIR KUMAR JHA

body2008
Judgment 1. Heard counsel for the petitioner. 2. In the opinion of this Court the plaintiff, petitioner having instituted a suit in the year 1988 has indulged into routine exercise of moving this Court possibly against each and every order which can delay disposal of the suit. 3. Here is a classic case where once the petitioners prayer for exhibiting a document by way of taking into evidence was rejected by the court below and the same on being assailed before this Court was also affirmed by order dated 11.9.2003 in C.R. No. 286 of 2003 and was allowed to become final. 4. The ingenious on the part of the plaintiff, petitioner however had the audacity to move this Court after completing the period of 30 years of the same document which was earlier refused to be taken in evidence, and now under Section 90 of the Evidence Act it was prayed that such document be taken into evidence. The court below has rejected such prayer holding that Section 90 of the Evidence Act is not applicable in the facts of this case. 5. Mr. J.P. Bhagat, counsel for the petitioner while relying on Section 90 of the Evidence Act and has also referred to a decision in the case of Mahadeo Prasad vs. Most. Nasiban reported in A.I.R. 1920 Awadh 11. 6. This Court is of the opinion that such approach and effort of the plaintiff, petitioner has been adopted to only delay the disposal of the suit, which has been successfully done by him by keeping the suit of the year 1988 pending till. 2008 despite the fact that this Court by order dated 23.11.2001 passed in C.R. No. 2186 of 2000 filed by the petitioner himself had clearly observed while dismissing the aforementioned civil revision application of the petitioner that:- "In view of the position that the suit was instituted way back in the year 1988, the trial court is hereby directed to dispose of the same within a period of three months from the date of receipt/production of a copy of this order." 7. Almost seven years after the date of the aforesaid direction of the court the suit is still awaiting for its disposal and possibly due to brilliance of litigating acumen on the part of the petitioner. Almost seven years after the date of the aforesaid direction of the court the suit is still awaiting for its disposal and possibly due to brilliance of litigating acumen on the part of the petitioner. Such order of this Court in fact has not been complied possibly on account of effort of the petitioner, who by this time has moved this Court at least in three more civil revision applications by assailing the order dated 13.12.2002 rejecting the prayer to recall P.W. 10 and to produce witness to prove writing on the deed of gift. The effort of the petitioner was therefore sufficient to delay the disposal of the suit and consequently the question remains whether the impugned order passed by the court below refusing to entertain the document, namely, the deed of gift on record under Section 90 of the Evidence Act is jurisdictional error which warrants this Court to interfere with the same under Section 115 of the Code of Civil Procedure. 8. In the opinion of this Court, once prayer for admitting that very document, namely, deed of gift was rejected by the court below and was also affirmed by this Court there can be no indirect method of taking that very document into evidence within the provision of Section 90 of the Evidence Act. 9. It is well settled that an inter-party order will bind both the parties and here when the plaintiff, petitioner had been so much concerned about admitting that document into evidence and had moved the court below for getting the same exhibited by producing the attesting witness and that was disallowed, he now cannot be allowed to take even a plea for admitting that document into evidence. This is a case in which the petitioner will be bound by the inter-party order. 10. That apart, the question will be that at what stage the document has to be produced by the plaintiff, petitioner and at what stage the said document will be taken into consideration. Requirement of law would be that the plaintiff has to produce his document alongwith plaint in order to establish the case. 10. That apart, the question will be that at what stage the document has to be produced by the plaintiff, petitioner and at what stage the said document will be taken into consideration. Requirement of law would be that the plaintiff has to produce his document alongwith plaint in order to establish the case. Then comes the stage when written statement is filed and thereafter issues were framed and after issues were framed the plaintiff has to lead his evidence and the plaintiff has to decide as to what document has to be proved by him in accordance with the provisions of Order XIII Rule 1 in the light of the issues framed in the suit. If at that stage the document in question, the some deed of gift was sought to be produced for its being taken into evidence and such prayer was rejected up to this court, the petitioner cannot be even permitted to raise that very issue for that very documents on the plea of Section 90 of the Evidence Act. 11. In this context reliance placed by counsel for the petitioner in the case of Mahadeo Prasad (supra) is absolutely misplaced as what has been observed in the aforementioned case is that the evidentiary value of 30 years old document has to be presumed under Section 90 of the Evidence Act. That was not the case that a prayer for accepting that very document which is said to be 30 years old document was already rejected by the court below and was also affirmed by the High Court, while the same was sought to be taken into consideration. 12. Question therefore would be as to how the petitioner can now be allowed to proceed with the suit in question. Whether he should be given liberty to move against each and every order by keeping the suit pending for 30 years. Here is a case where the petitioner has delayed the disposal of the suit by filing at least three civil revision applications, namely, C.R. No. 2092 of 1999, C.R. No. 2186 of 2000 and C.R. No. 286 of 2003 and that is how despite clear direction of this Court in its order dated 23.11.2001 in C.R. No. 2186 of 2000, the suit in question has not been disposed of till date. Realizing that the petitioner has been single handedly abusing the process of the Court, this Court while holding the present Civil Revision Application to be wholly frivolous and dismissing it would award an exemplary cost of Rs. 25,000/- to be deposited by the petitioner in the court below for its being paid to the contesting defendants. 13. The Court below is also directed to dispose of the suit by conducting its day to day hearing. 14. With the aforementioned observations and directions this Civil Revision Application is dismissed.