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2010 DIGILAW 542 (GAU)

Raifuddin Ahmed v. Om Prakash Khakolia

2010-08-05

UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. This revision petition under Article 227 of the Constitution of India is directed against the order dated 23.6.2010 passed by the learned Civil Judge, No. 2, Kamrup, Guwahati, in Petition No. 1144 of 2010 arising out of title suit No. 171 of 2006 whereby and whereunder the petition filed by the opposite parties-Defendants under order VIII, Rule 1(A)(3), read with Section 151, Code of Civil Procedure was allowed. 2. Heard Mr. S. Ali, learned Counsel for the Petitioner and Mr. G.N Sahewalla, learned senior counsel appearing for the opposite parties. 3. As agreed to by the learned Counsel for the parties, this revision petition is taken up for final hearing and disposal at this stage. 4. The facts giving rise to filing of the instant revision petition, in brief, are, thus: The present Petitioner, as Plaintiff, instituted the aforesaid title suit No. 171 of 2006 against the opposite parties-Defendants praying for declaration of right, title, interest, recovery of possession and permanent injunction, which is pending before the learned Civil Judge, i.e., the trial court. The opposite parties-Defendants after receiving the summons appeared before the learned trial court and contested the suit by filing their written statements and adducing some documents. On the basis of the pleadings, the learned trial court framed issues and the respective parties adduced their evidences before it in support of their respective pleadings to prove their case. The opposite parties-Defendants 1 to 3 though took a plea in their written statements that the sale deed No. 1834 of 1997 is a fraudulent document, but in support of such plea, neither they submitted any document nor disclosed where the said document was available. After closer of the examination of the witnesses, the case was fixed on 26.8.2009 for hearing final arguments of both the parties. 5. It is also stated by the Petitioner Plaintiff that on 4.11.2009, the opposite parties-Defendants filed four petitions No. 2885/09, 2886/09, 2887/09 and 2888/09 before the trial court. The petition No. 2885/09 was filed for filing of two documents, viz., the sale deeds No. 7461/83 and 7462/83, the petition No. 2886/09 was for framing of additional issue, the petition No. 2887/09 was for calling records of the title suit No. 266 of 2003 and petition No. 2888/09 was for amendment of the written statement, respectively. The petition No. 2885/09 was filed for filing of two documents, viz., the sale deeds No. 7461/83 and 7462/83, the petition No. 2886/09 was for framing of additional issue, the petition No. 2887/09 was for calling records of the title suit No. 266 of 2003 and petition No. 2888/09 was for amendment of the written statement, respectively. Out of the aforesaid four petitions, two petitions, i.e., the petition for framing of additional issues and the petition for calling the records of the title suit were allowed by the trial court on concession of the Plaintiff Petitioner and other two petitions were rejected being opposed by the Plaintiff Petitioner vide order dated 25.11.2009. Against the said order dated 25.11.2009, two revision petitions No. CRP 452/09 and 453/09 were filed before this Court by the opposite parties Defendants which were rejected/dismissed vide order dated 27.1.2010. 6. When the revision petitions were pending before this Court for some times, the argument of the parties could not be completed and ultimately the date was fixed for final argument of the parties on 28.4.2010. On that date, the opposite parties-Defendants again filed a petition under order VIII, Rule 1(A)(3), read with Section 151, Code of Civil Procedure, praying for 'admitting the death certificate into evidence' and asking Sri Anil Das, son of Gaur Mohan Das to produce the original copy of the same before the court and if necessary, to examine him to prove the death certificate. Gour Mohan Das (since deceased) was the vendor as well as executor of the sale deed No. 1834 of 1997 dated 3.4.1997. The Plaintiff Petitioner upon receipt of the aforesaid petition tiled their written objection and the date was fixed for hearing on the aforesaid petition on 11.5.2010. On that date, the opposite parties-Defendants filed another application with a prayer for allowing them to produce the photocopy of the death certificate of deceased Gaurmohan Das, the executor of the aforesaid sale deed, photo copy of which was annexed to the said application as Annexure-1. The Plaintiff Petitioner filed their written objection on the same date, i.e., 11.5.2010 against the prayer made in the aforesaid petition under order VIII, Rule 1(A)(3), read with Section 151, Code of Civil Procedure. He also filed written objection to the subsequent petition of the opposite parties-Defendants on 7.6.2010. The Plaintiff Petitioner filed their written objection on the same date, i.e., 11.5.2010 against the prayer made in the aforesaid petition under order VIII, Rule 1(A)(3), read with Section 151, Code of Civil Procedure. He also filed written objection to the subsequent petition of the opposite parties-Defendants on 7.6.2010. Upon receipt of the aforesaid objection, the learned trial court fixed the case on 23.6.2010 for hearing of the aforesaid petition of the opposite parties-Defendants under order VIII, Rule 1(A)(3), Code of Civil Procedure. 7. After hearing the parties and on going through the records, the learned trial court passed the impugned order stating, inter alia, "it is factually correct that since the filing of the written statement, the Defendants have been consistently pleading that Gaurmohan Das died before the execution of the sale deed No. 1834/97. The Defendants made the prayer under order VIII, Rule1A, of the Code of Civil Procedure. After considering the matter in its entirety, I have no hesitation to hold that the points raised by the Defendants requires to be weighed properly. Thus, I accept this document., The Defendants shall prove this document as well as prove the facts of demise of Gaurmohan Das by adducing evidence. I am of the considered view that there is no possibility that the Plaintiff being prejudiced". Hence, this petition. 8. Md Ali, learned Counsel for the Plaintiff Petitioner has submitted that the trial court has exercised its jurisdiction illegally or with material irregularity and the trial court ought to have rejected the prayer for filing documents, namely, the death certificate relating to the death of Gaurmohan Das. The order accepting the opposite parties-Defendants to produce the said document at the belated stage of argument would cause prejudice to the Plaintiff Petitioner. The learned Counsel further contended that the trial court failed to consider that true aspect of order VIII, Rule 1(A)(3), of the Code of Civil Procedure and also failed to take note of order XVIII, of Code of Civil Procedure. He further contended that the learned trial court while passing the impugned order failed to take notice of the order XIII, which prescribes the mode of production of the document as well as the stage. According to him, the original document can be produced only before the settlement of the issues, not thereafter. He further contended that the learned trial court while passing the impugned order failed to take notice of the order XIII, which prescribes the mode of production of the document as well as the stage. According to him, the original document can be produced only before the settlement of the issues, not thereafter. In the instant case the learned trial court accepted the prayer of the opposite parties Defendants even after completion of the hearing stage which is not permissible under law. Mr. Ali finally contended that the word hearing used in order VIII, Rule 1(A)(3), does not include 'argument'. 9. Per contra, Mr. Sahewalla, the learned senior counsel appearing for the opposite parties-Defendants while supporting the order impugned has contended that the learned trial court did not commit any error allowing the petition of the opposite parties-Defendants and accepting the document, as the said document is necessary for proper adjudication of the suit, particularly, when the case of the Plaintiff Petitioner is that the sale deed No. 1834/97 was executed on 3.4.1997 whereas the document which was submitted by the opposite party Defendants along with application under order VIII, Rule 1(A)(3), Code of Civil Procedure shows that prior to the execution of the aforesaid sale deed, the executor died and that document can nullify the claim of the Plaintiff Petitioner. He further submitted that the provisions of order VIII, Rule 1(A)(3), prescribes-that the Defendants can file a document which was not produced earlier with the leave of the court and the court is also empowered to receive the said document as an evidence even at the hearing stage of the suit. He further submits that the acceptance of the document as submitted by the opposite parties-Defendants and calling the son of the deceased executor of the sale deed, namely, Gaurmohan Das, is in no way prejudiced the Plaintiff Petitioner, as the Plaintiff Petitioner would get an opportunity to cross-examine the said witness and also can confront him regarding genuineness of the document. 10. In response to the contention of Mr. All, that hearing does not include argument, Mr. Sahewalla would contend that hearing means examination of witnesses, filing of documents and addressing of argument. Therefore, it can be easily said that hearing includes arguments. In support of his contention, he relied upon a judgment of the Apex Court in Baldev Singh and Anr. v. Monohar Singh and Anr. All, that hearing does not include argument, Mr. Sahewalla would contend that hearing means examination of witnesses, filing of documents and addressing of argument. Therefore, it can be easily said that hearing includes arguments. In support of his contention, he relied upon a judgment of the Apex Court in Baldev Singh and Anr. v. Monohar Singh and Anr. (2006) 6 SCC 498 , wherein the Apex Court while considering the order of High Court as well as trial court rejecting the prayer for amendment of the written statement, stated inter alia that "That apart, commencement of trial as used in proviso to order 6, Rule 17, in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments." He also relied upon a decision of the Apex Court in Sushil Kumar Jain v. Monoj Kumar and Anr. (2009) 14 SCC 38 , wherein similar question came up for consideration and the Apex Court considering para 17 of Baldev Singh (supra), the application for amendment of the written statement wasallowed. 11. In view of the above, he also urges that hearing of the suit has yet been concluded. Therefore, the trial court acted very rightly within its jurisdiction accepting the prayer of the opposite parties Defendants. 12. The provisions of Sub-rules (2) to (7) of order VIII, Rule 1, and also provisions' of order VIII, Rule 8A, have been deleted by Amendment Acts of 1999 and 2002, said Amendment Acts inserted Rule 1A, in order VIII. This newly inserted order VIII, Rule 1A, incorporates the deleted provisions of order VIII, Rule 1, and order VIII, Rule 8A. Hence, we can say that the provisions of earlier order VIII, Rule 8A is pari materia to the present provisions of order VIII, Rule 1(A)(3). There are not much cases reported on newly incorporated order VIII, Rule 1(A)(3). We can take some aid from the decision of the earlier un-amended provisions of order VIII, Rule 8(A), as well as order VIII. There are not much cases reported on newly incorporated order VIII, Rule 1(A)(3). We can take some aid from the decision of the earlier un-amended provisions of order VIII, Rule 8(A), as well as order VIII. As the learned Counsel for the parties referred to the provisions of order VIII, Rule 1(A)(3), as well as order XVIII, Rule 18, it would be proper for this Court to reproduce the relevant portion of these provisions, which are as follows: Order VIII, Rule 1A(3): A document which ought to be produced in court by the Defendant under this rule, but, is not so produced shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit. * * * Order XVIII, Rule 18. Power of court to inspect. - The court may at any stage of a suit inspect any property or thing concerning which any question may arise and where the court inspects any property or thing it shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit. 13. The object of order XIII, Rule 1, and the order VIII, Rule 1(A)(3), Code of Civil Procedure is merely to prevent the belated production of the document so that there may not be delay in trial and it may not work injustice to the other side. From plain reading of the above referred provisions, it appears that Legislature left the matter relating to the acceptance of the document in a belated stage within the discretion of the court so that the court can adjudicate the suit properly subject to good cause is shown for its satisfaction. 14. Now question remains how the discretion has to be applied and in what stage such prayer for production of documents can be negated by a court. According to this Court, so far as the submission of Mr. Ali that hearing does not include the argument is not tenable in view of the aforesaid decision of the Apex Court referred by Mr. Sahewalla. 15. Hearing has various stages - preliminary hearing and final hearing So far final hearing of the suit is concerned, that includes argument being argument is part of hearing. Ali that hearing does not include the argument is not tenable in view of the aforesaid decision of the Apex Court referred by Mr. Sahewalla. 15. Hearing has various stages - preliminary hearing and final hearing So far final hearing of the suit is concerned, that includes argument being argument is part of hearing. If we look back to the provisions of order XVIII, prior to Amendment, it would be evident that the word 'argument' was not there. The word 'argument' was inserted first time in the Code by the Code of Civil Procedure (Amendment) Act, 2002, Section 12(a) with effect from 1.7.2002. There is no doubt even though prior to amendment the word 'argument' was not there in the Code, but the parties were allowed to address the court on the issues involved in the suit in the nature of argument. It is to be mentioned here that the word "beginning" was there in Rule 1, of order XVIII. 16. In Steel Authority of India Ltd. v. Ashok Industries (1992) 1 GLR 32 , this Court discussed about the object of order VIII, Rule 8A, as it then was which is pari materia to the provisions of order VIII, Rule 1(A)(3). In that case after closer of the examination of the witnesses of the Plaintiff, Defendant filed an application for allowing him to file nine documents enumerated in the list on the ground that the said document could not be filed, as the same could not be traced out at the relevant time and the prayer for allowing to file those documents was rejected by the trial court on the ground that the pleas of the Defendant are self-contradictory and consequently the explanation for belated production of the document are unsatisfactory and, therefore, it does not constitute good a cause. Against which, a revision petition was filed and this Court while disposing the revision petition held that the object of the rules referred to above is merely to prevent the belated production of the documents, so that there may not be delay in trial and it may not work injustice to the other side. However, the above provisions empower the court with discretion to allow to produce the documents, if it is satisfied that sufficient cause or good cause is shown to its satisfaction. The discretion should, however, be exercised for the cause of substantial justice. However, the above provisions empower the court with discretion to allow to produce the documents, if it is satisfied that sufficient cause or good cause is shown to its satisfaction. The discretion should, however, be exercised for the cause of substantial justice. Ultimately, setting aside the order of the trial court allowed the Petitioner of that case to file all the documents enumerated in the list subject to payment of Rs.200 only to the Plaintiff by the Defendant and ordered that the Plaintiff shall be given an opportunity to lead evidence in rebuttal. 17. Having heard the learned Counsel of the parties and on perusal of the provisions of order VIII, Rule 1(A)3, this Court is of considered opinion that the court is not prevented by Legislature from allowing the prayer for accepting the document, even when the document is produced in a belated stage subject to delay in filing is properly explained to the court and if explained, the court may have to lean in favour of receiving the documents since it is the fundamental principle that the parties should be permitted to let in all possible evidence which are relevant for the purpose of adjudicating the matters in controversy before the court. 18. Rejection of prayer for accepting documentary evidence on a technical ground or to prevent the party from producing the evidence should be only when the delay caused in filing such document is deliberate and that too, the delay is caused to prolong the suit. 19. It also appears from the order VIII, Rule 1(A)(3) that the Legislature does not create any bar to accept a document in the belated stage, if the same is necessary for proper adjudication of the matter in controversy before the court. 19. It also appears from the order VIII, Rule 1(A)(3) that the Legislature does not create any bar to accept a document in the belated stage, if the same is necessary for proper adjudication of the matter in controversy before the court. This Court is of further opinion that the provisions of Rule 1(A)(3), not only confer power to the trial court to receive the document, rather the same is also akin to the power vested with the appellate court to receive documents under order XLI, Rule 27, of the Code wherein it is mentioned that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court, but if the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence; be produced by him at the time when the decree appealed against was passed, or the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined. 20. The aforesaid provisions of order XLI, Rule 27, clearly emphasize that not only the trial court has the power to accept the relevant document in a belated stage for proper adjudication of the matter before it, but the appellate court also has the power to accept such a document and the court can not only accept document, but also can examine the witnesses, if such examination is necessary to enable it to pronounce judgment or for any other substantial cause. 21. In Pandurang G. Dodke v. Lanka P. Kshirsagar and Anr. AIR 2005 Bom. 427 , the High Court of Bombay permitted to produce the documents in an appellate stage. 21. In Pandurang G. Dodke v. Lanka P. Kshirsagar and Anr. AIR 2005 Bom. 427 , the High Court of Bombay permitted to produce the documents in an appellate stage. In Assam Hindu Mission v. Elaboris Tron (1999) 1 GLR 380 , while examining the order dated 2.7.1997 passed by the learned District Judge/Additional Deputy Commissioner, Shillong in Title Civil Appeal No. 2(T) of 1992 whereby the learned appellate court rejected the petition of the Petitioner of that case for adducing the additional documentary evidence, this Court ultimately allowed the prayer of the Petitioner stating, inter alia, "the present Appellant herein did/does not take up any new case with the new plea as there is a pleading of the parties with regard to their title and ownership over the suit land for which the related Issue No. 4 namely, who has got the valid right, title and interest over the suit land was framed by the learned trial court. It is also well settled that when additional evidence is admitted, the other side should be given an opportunity to review it. It is also true that the first appellate court should exercise the power conferred to upon it under order 41, Rule 27, of the Code of Civil Procedure cautiously and sparingly and proper reason should be recorded and minuted, and when additional evidence came into existence some time after the disposal of the suit, the appellate court would be justified in admitting even at the appellate stage if the court thinks that, but for it there would remain some inherent lacuna before the court. In my considered view, there is substantial cause and the first appellate court require those documents to be produced and those two witnesses to be examined so as to enable the first appellate court to determine the real points in controversy between the parties and to pronounce its judgment to meet the ends of justice. As discussed above, those documents so far the Appellant-Plaintiff sought for producing the same as additional evidence before the appellate court are very important and essential for determination of the real points in controversy between the parties, particularly in determining the related Issue No. 4 as mentioned above. 22. As discussed above, those documents so far the Appellant-Plaintiff sought for producing the same as additional evidence before the appellate court are very important and essential for determination of the real points in controversy between the parties, particularly in determining the related Issue No. 4 as mentioned above. 22. The above case also support the views expressed by this Court that even at the appellate stage, the court can permit the party either to produce the additional evidence through its witness or produce document subject to production of such document is necessary for proper adjudication of the case. In the instant case, even the Petitioner Plaintiff admitted that the opposite parties Defendant Nos. 1, 2 and 3 in their written statement took a specific plea that the sale deed No. 1834/97 dated 3.4.1997 is a fraudulent one which is learnt from the reliable sources as the original pattadar Gourmohan Das, son of Gagan K. Das original pattadar of the K.P. Patta No. 67 covered by Dag No. 598 was died before execution of the said sale deed. Not only that the opposite party Defendants in paragraph 3 of the application under order VIII, Rule 1(A)(3), read with Section 151Code of Civil Procedure also stated that "the Petitioners are trying their level best to find out the death certificate of Gourmohan Das and in this respect they made various enquiries in the office of the Registrar of Births and Deaths but could not find out the certificate. However, recently the Petitioners came to know about the son of Gourmohan Das, namely, Anil Das who is also aged about 75 years and accordingly the Petitioner No. 1 immediately rushed to him and requested him to furnish the death certificate of his father and on such request, the son of Gourmohan Das only furnished a photo copy of death certificate of Gour Mohan Das informing the Petitioner No. 1 that if necessary, he can produce the same in court but he will not handover the original to the Petitioner No. 1. Be it mentioned as per the death certificate of Gourmohan Das died on 25.11.1995 and the said death had been registered on 14.12.1995 and the certificate was issued immediately thereafter on 18.12.1995". Not only that, the Defendants also annexed the photo copy of the said death certificate of Gourmohan Das, the alleged executor of the sale deed 1834/97. 23. Be it mentioned as per the death certificate of Gourmohan Das died on 25.11.1995 and the said death had been registered on 14.12.1995 and the certificate was issued immediately thereafter on 18.12.1995". Not only that, the Defendants also annexed the photo copy of the said death certificate of Gourmohan Das, the alleged executor of the sale deed 1834/97. 23. From the aforesaid contention of the opposite parties Defendants, it appears that the alleged executor of the Sale Deed No. 1834/97 was died in the year 1995 whereas the alleged sale deed on which the Petitioner Plaintiff sought for declaration of their title was executed about two years later than the death of the alleged executor Gourmohan Das. Therefore, according to this Court, the learned trial court rightly allowed the prayer for accepting the document. In his order, the learned Civil Judge also stated that in his view, 'there is no possibility of the Plaintiff being prejudiced'. Even for the argument sake, the submission of Mr. Ali that the trial court had no power to accept such an application under order VIII, Rule 1(A)(3), then also the trial court has the power to accept such documents in exercise of its power under Section 151 of the Code of Civil Procedure as the court is established not to do injustice on the ground of hyper-technicality when the procedural law is a hand-made law, but to do substantial justice to a justice seeker. Therefore, according to this Court, by way of passing the impugned order, the court below did not commit any error, rather done substantial justice as the said document would go to the root of the claim of the Petitioner Plaintiff so far as the opposite parties Defendants are concerned. The universally accepted maxim, rather, principle of law is that, "justice must not only done but must also appear to be done". The aforesaid principle has also been accepted and approved in several decisions of the Apex Court and one of those decisions of the Apex Court is in the case of Ashok Kumar Yadav v. State of Haryana AIR 1987 SC 454 . 24. More so, the present application is filed under Section 227 of the Constitution read with Section 151, Code of Civil Procedure for exercising the supervisory power of this Court as vested on it. 24. More so, the present application is filed under Section 227 of the Constitution read with Section 151, Code of Civil Procedure for exercising the supervisory power of this Court as vested on it. According to this Court, the supervisory power can only be exercised to keep the inferior court and tribunal within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. In the instant case it appears that the trial court acted within its jurisdiction vested in it and as such, it cannot be said that the trial court has not acted within the bounds of its authority as prescribed under the law. 25. The Petitioner Plaintiff failed to make out any case on those grounds. Therefore, on that count also, the present revision petition is required to be dismissed. 26. For the foregoing reasons, the present revision petition is dismissed. No order as to costs. The parties are at liberty to approach the trial court for early disposal of the suit. Petition dismissed.