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2010 DIGILAW 424 (DEL)

Y. N. Gupta v. Jagdish Chander Sharma & Anr.

2010-03-15

SHIV NARAYAN DHINGRA

body2010
Shiv Narayan Dhingra, J.:- 1. By this petition,, the petitioner has assailed an order dated 30th September, 2009 passed by learned Additional District Judge whereby the learned Additional District Judge allowed an application under Order VIII Rule 1A CPC filed by the defendants seeking leave to place on record the additional documents on the ground that these documents were necessary to be produced for adjudication of the dispute. 2. The application was allowed by the learned trial court though made after 26 years of filing of the suit on the ground that the procedure was a hand maid of justice and just because of technicalities of procedure justice should not be made to suffer. 3. It is pleaded by counsel for the petitioner that the learned trial court had ignored all provisions of law in respect of stage of filing of documents; whether the documents were within the knowledge and control of the applicant and what prevented him from filing these documents at the initial stage and the trial court allowed the filing of documents in a very casual manner. It is submitted that the suit was filed in the year 1982. The plaintiffs evidence was already over and after 26-27 years of filing of the suit, this application was made for filing additional documents by the defendants and the trial court allowed this application without any justification. 4. The petition is opposed by counsel for the respondents on the ground that this court should not exercise power under Article 227 of the Constitution of India as this power must be exercised very sparingly and only where the court had exceeded jurisdiction. In the present case, the court had power to allow filing of additional documents under law and it was not a case of exceeding jurisdiction. Reliance is placed on Surya Dev Rai v. Ram Chander Rai & Others ( AIR 2003 SC 3044 ) and it is argued that there was no error on the face of the order of the trial court which should result into exercise of powers under Article 227. 5. The controversy between the parties is whether the defendant's father was a tenant or a licensee. 5. The controversy between the parties is whether the defendant's father was a tenant or a licensee. The defendant had taken a stand in the written statement that defendant's father was a well to do person, doing various businesses and there was no occasion for him to work as a part time employee or employee of the petitioner and the premises in question was not given to him due to his employment and neither the premises was under license of the deceased father of defendant. It was alleged that he was a tenant. This stand was taken in the written statement at the time when written statement was filed. The documents which are sought to be filed by the defendant now are in respect of various businesses of his father and the trial court has allowed these documents despite being filed after more than two decades on the ground that the plaintiff has not stated that these documents were manipulated or forged and while considering the application under Order VIII Rule 1A CPC, the court has not to look into genuineness of the documents and the sole question to the decided by the court whether the documents were necessary for adjudicating the controversy in suit or not. The trial court candidly observed that from the application made by the defendant it has not been explained when and how the defendant came into possession of these documents and why these documents could not be filed earlier. Still, the trial court considered that documents were relevant for the purpose of deciding the controversy and as the defendant wanted to prove that as their father was having sufficient standing he would not have worked as full time employee of somebody for petty amount. She despite observing that the application was filed belatedly at the stage of defendant's evidence considered that delay could be compensated by costs. 6. She despite observing that the application was filed belatedly at the stage of defendant's evidence considered that delay could be compensated by costs. 6. I consider that the settled principles of procedure as laid down by the statute in regulating management and conduct of a trial cannot be thrown into dustbin on the ground that procedure is hand maid of justice and the trial can be conducted in any manner and can be prolonged for any number of years at the whims and fancies of the parties and the court has no role to play in either controlling or managing the trial and to see that each and every trial must be concluded in a reasonable time. Where the court fails to exercise the statutory mandate of conducting trial in an orderly manner as per CPC and allows the parties to proceed with the trial in the manner in which they want, it amounts to total failure of the court in exercising its jurisdiction and I consider that this court under Article 227 must intervene and exercise jurisdiction and set the things right. Even unamended Civil Procedure Code gave a specific procedure for filing of pleadings and documents and the circumstances under which additional documents could be filed by parties. All documents were supposed to be filed by the parties along with pleadings. The documents not in power and possession of the parties were required to be mentioned in a list and against each document it was to be mentioned in whose possession it is, if it has been lost or how the document is sought to be proved in the court. This procedural requirement was necessary so that trial proceeds in an orderly mariner and both the parties know each others' case and the documents relied upon by them. Only those documents could be withheld by the parties which they intended to put in cross-examination to the witnesses. The additional documents could be produced by the parties only where despite, due diligence and effort, the party could not lay hand on any of those documents or the documents were not within the knowledge of the party and they were discovered later on by the party during pendency of the trial. The additional documents could be produced by the parties only where despite, due diligence and effort, the party could not lay hand on any of those documents or the documents were not within the knowledge of the party and they were discovered later on by the party during pendency of the trial. The court before allowing the additional documents was to be satisfied not only about the relevancy of documents but also about the reasons as to why the documents could not be filed at the initial stage either along with the plaint or along with written statement. 7. The amendments which were made by the Parliament from time to time in Code of Civil Procedure and other laws were made after observing the working of the Code and after considering that there was need to change the law. These statutory amendments cannot be ignored or thrown to winds by the courts because in one or the other case, they are to the disadvantage of a party. Disadvantage of an individual cannot be a ground to ignore the statute. Statutory provisions are made for general application and to give certainty to the law. If the law remains uncertain, it becomes a hay day for the parties to twist the law and that is why it is necessary that the procedural aspects of the law also must be settled and should not be considered so lightly that the courts have liberty to ignore the procedural aspects whenever and wherever they like. No doubt, procedure is hand maid of justice but what is justice cannot be a concept and idea of an individual judge. Justice has to be looked from the broader prospective. If a judge is given discretion to decide applications without following procedure, as laid down by Parliament, that will result into total chaos and would breed contempt for law and infuse corruption. 8. I, therefore, consider that where a party seeks to file documents after two decades of the trial, the documents cannot be allowed to be tiled so casually by observing that no objection has been taken that these documents were forged or they were going to help in adjudicating the issues. 9. Affluence of a deceased person or his business involvements does not open a window into his mind to know as to whether at a particular time he had entered into a particular contract or not. 9. Affluence of a deceased person or his business involvements does not open a window into his mind to know as to whether at a particular time he had entered into a particular contract or not. Whether the agreement as alleged was entered into or not has to be decided on the basis of evidence regarding the execution of agreement or contract between the parties. The evidence regarding affluence of a man or his business involvements does not decide; whether the man entered into an agreement of licence at a particular time or not. An affluent man can also be a licensee or a tenant or an owner. Affluence or spread of business of a man cannot be a factor to decide whether he was a licensee or a tenant or an owner. There may be many cases where affluent persons have only been licensee or only been tenants, despite the fact that they had enough money with them to own several properties. 10. I consider the trial court went wrong in allowing the application on the ground that procedure was mere hand maid of justice and could be twisted or ignored as per the facts of each case. I, therefore, allow this petition. The order passed by the trial court dated 30th September, 2009 taking documents on record is hereby set aside.