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2011 DIGILAW 1370 (RAJ)

Paryavaran Avam Manav Vikas Sansthan, Udaipur v. Hindustan Agro Chemicals Limited

2011-07-13

DINESH MAHESHWARI

body2011
JUDGMENT 1. - While allowing the application (IA No. 10659/2011) for preponing, the matter has been considered today itself. 2. Heard the learned counsel for the petitioner and perused the material placed on record. 3. By way of this writ petition, the plaintiff-petitioner seeks to question the order dated 14.03.2011 as passed by the Additional District Judge (Fast Track) No.4, Udaipur in Civil Original Suit No. 26/2009 rejecting an application moved under Order 13, Rule 10 of the Code of Civil Procedure ('CPC') whereby the plaintiff-petitioner sought the orders from the Trial Court for sending for a report, said to have been presented by the National Environment Engineering Research Institute ('NEERI') before the Hon'ble Supreme Court in the pending proceedings in Writ Petition No. 967/1989. 4. The petitioner is said to be an organisation of the residents of village Bichhadi, Tehsil Girva, District Udaipur. The petitioner has filed the civil suit claiming damages to the tune of about Rs. 28.48 crores for the severe losses caused by the effluents coming out of the industries established by the respondents Nos.1 to 5. 5. In the suit aforesaid, the plaintiff-petitioner earlier moved an application under Order 7, Rule 14 CPC, seeking to produce a copy of the report said to have been filed by NEERI before the Hon'ble Supreme Court. However, this application was declined by the learned Trial Court in its order dated 30.10.2009 with the observations that the document in question could not be received on record for being not a certified copy. Thereafter, the plaintiff-petitioner moved another application seeking permission to lead secondary evidence in relation to the report said to have been submitted by NEERI regarding the damage caused by the industries by filing a copy of the copy; and it was pointed out that the original report had been filed by NEERI before the Hon'ble Supreme Court. This application was also rejected by the learned Trial Court by the order dated 11.05.2010 with the observations that the original being in existence, the petitioner could obtain the certified copy thereof and, therefore, 'the copy of the copy' of the document could not be admitted in evidence in terms of the provisions of Section 65 of the Evidence Act, 1872. The petitioner filed a writ petition against the aforesaid order dated 11.05.2010 (CWP No.6356/2010) that came to be considered and rejected by a co-ordinate Bench of this Court with the following amongst other observations:- "7. It is to be noticed that in the instant case, even according to the petitioner, the original report is in existence which has been submitted by the NEERI before the Hon'ble Supreme Court. There is nothing on record to show that what prevented the petitioner from obtaining a certified copy of the original report filed in the Hon'ble Supreme Court. In considered opinion of this court, the "copy to copy" sought to be produced by the petitioner does not even falls within the definition of secondary evidence within the meaning of Section 63 of the Act and also does not satisfy any of the conditions enumerated u/s 65 (a) & (c) of the Act which permits the secondary evidence being given of the existence or contents of a document. 8. In this view of the matter, in considered opinion of this court,the order impugned passed by the court below does not suffer from any jurisdictional error warranting interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India." 6. After such rejection of the prayer for leading secondary evidence, the petitioner moved the application with reference to Order 13, Rule 10 CPC and submitted that the said report of NEERI was a material and relevant document in the present suit; and the petitioner, despite all efforts, had not been able to obtain the certified copy thereof. The petitioner, therefore, prayed that the report submitted by the NEERI in the month of April 1994 in relation to the pollution in village Bichhadi be called from the pending proceedings before the Hon'ble Supreme Court in Writ Petition No. 967/1989. 7. The learned Trial Court has considered the application so moved by the petitioner in its impugned order dated 14.03.2011. The learned Trial Court found the submissions as made on behalf of the plaintiff-petitioner uncertain and vague where though it was stated that the certified copy could not be obtained despite efforts but the learned counsel for the plaintiff failed to show as to why the certified copy was not obtainable or as to what happened to the application moved by the plaintiff for obtaining the certified copy ? The learned Trial Court observed that if the original was available in the record, the petitioner could obtain a certified copy thereof but it appeared that adequate efforts were not made for obtaining the certified copy; and there was no reason to grant the prayer as made in the application. 8. Seeking to challenge the order aforesaid, it is contended on behalf of the petitioner that the learned Trial Court has failed to consider the substance of the prayer made by the petitioner and has erred in rejecting the application moved under Order 13, Rule 10 CPC. It is submitted that the copy of the report of NEERI as produced before the Hon'ble Apex Court, was itself a copy issued by NEERI which was taken on record and the Registry of the Hon'ble Apex Court issued a copy thereof while marking it to be 'copy to copy'. It is submitted that the petitioner had produced the document as could be obtained after best efforts; and if the certified copy as such is not available, the only remedy for the petitioner was to file an application under Order 13, Rule 10 CPC. It is submitted that the learned Trial Court has been entirely unjustified in declining to take the copy of NEERI Report on record which is, rather, the foundation of the suit for damages and in its absence, the petitioner would be prejudiced in establishing its claim. It is submitted that the learned Trial Court has failed to consider the substance of the matter and has rejected the application from an entirely hyper-technical point of view and without regard to the substance of the matter. 9. After having heard the learned counsel for the petitioner and having examined the material placed on record, this Court is unable to find a case of jurisdictional error so as to consider interference. 10. It appears that even before passing of the order dated 11.05.2010, the prayer of the petitioner for production of the document, said to be the copy of the report of NEERI as issued from the Registry of the Hon'ble Supreme Court, was declined by the learned Trial Court in its order dated 30.10.2009 after finding that the document sought to be produced was not a certified copy. The prayer made further for permission to lead secondary evidence was declined by the learned Trial Court in its order dated 11.05.2010 with reference to the earlier order dated 30.10.2009 and further with the observations that the plaintiff-petitioner could obtain the certified copy of the document; and the document as produced was not covered within the meaning of Section 65 of the Evidence Act. Significantly, this order was affirmed by this Court while dismissing CWP No. 6356/2010 on 16.07.2010. 11. The submissions that have been made before this Court in this petition remain basically misplaced. The submissions are essentially to the effect that 'copy to copy' as issued by the Registry of the Hon'ble Apex Court ought to have been taken on record. These submissions might have been relevant in regard to the previous applications under Order 7, Rule 14 CPC and Section 65 of the Evidence Act but then, as noticed, both such applications have been declined; and then, this Court has also refused to interfere while rejecting the writ petition (CWP No.6356/2010) filed by the petitioner. 12. In view of the observations as made by the learned Trial Court in its orders dated 30.10.2009 and 11.05.2010 and further, in view of the observations made by this Court in the order dated 16.07.2010, the document as sought to be produced has been declined to be taken on record and such orders have attained finality as at the present stage of the proceedings. The attempt on the part of the plaintiff-petitioner now to invoke the provisions of Order 13, Rule 10 CPC being entirely baseless, the Trial Court cannot be faulted in rejecting the application so moved in its impugned order dated 14.03.2011. This is apart from the fact that the Trial Court has rejected the prayer made on behalf of the plaintiff petitioner essentially with the observations that the petitioner could have obtained the certified copy of the original report but nothing specific was stated on behalf of the petitioner as to why the certified copy was not obtainable or as to what happened to the prayer for certified copy ? 13. In an overall view of the matter so far the order dated 14.03.2011 is concerned, it does not appear suffering from any jurisdictional error. 13. In an overall view of the matter so far the order dated 14.03.2011 is concerned, it does not appear suffering from any jurisdictional error. No case for interference in the supervisory jurisdiction under Article 227 of the Constitution of India is made out.The petition fails and is, therefore, dismissed.Petition dismissed. *******