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2012 DIGILAW 2026 (RAJ)

Nand Lal v. Ganga

2012-09-27

GOPAL KRISHAN VYAS

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. In this writ petition filed by the petitioner under Article 226 & 227 of the Constitution of India, petitioner is challenging validity of order dated 25.06.96 (Annex.11) passed by Board of Revenue in Revision No. 189/92/TA/Udaipur by which an application filed by the petitioner under Order 8A(2) of CPC was rejected. 3. As per facts of the case, in the suit filed by respondents on 17.04.79 against the petitioners under Section 88, 183 of the Rajasthan Tenancy Act for declaration and injunction for the land of 40 bighas in various khasras of village Majam District Udaipur. An application under Order 13 Rule 2 CPC was filed on 22.02.84 with the prayer that certain documents mentioned in the application total 13 in number may be taken on record. 4. After filing reply by the respondent plaintiffs, the Assistant Collector (Trainees) rejected the said application vide order dated 24.04.84 while holding that those documents are not filed after gross delay. The order passed by Assistant Collector was further challenged by way of filing revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 before the Board of Revenue, Ajmer. The Board of Revenue dismissed the said revision petition on merits while holding that trial court is having jurisdiction to see the circumstances in which the said application can be accepted under Order 13 Rule 2 C.P.C and trial court after due application, did not find it necessary to take those documents on record and hold that while exercising revisional jurisdiction, the order which is passed upon discretion of Court cannot be interfered. The judgment rendered by Board of Revenue, Ajmer dated 24.02.90 attained finality because it was not challenged by the petitioner. 5. The petitioner defendants again filed an application under Order 8 Rule 8A(2) read with Section 151 CPC for taking those documents and trial court accepted the said application while imposing cost of Rs. 200/- vide order dated 07.08.92. Against the said order, a revision petition was filed by respondent plaintiffs. Vide order dated 25.06.96 the Board of Revenue, Ajmer allowed the revision petition filed by respondent plaintiffs and set aside the order passed by Assistant Collector for taking all documents on record. 6. 200/- vide order dated 07.08.92. Against the said order, a revision petition was filed by respondent plaintiffs. Vide order dated 25.06.96 the Board of Revenue, Ajmer allowed the revision petition filed by respondent plaintiffs and set aside the order passed by Assistant Collector for taking all documents on record. 6. Learned counsel for the petitioner vehemently argued that order passed by Board of Revenue, Ajmer on 25.06.96 is not in consonance with law because at the time of rejection of application filed under Order 13 Rule 2 CPC, stage was altogether different and there was no power left with the Court to condone the delay in filing such documents but as per Order 8 Rule 8A(2) CPC, there is power left with the Court to take the documents on record while condoning the delay. Therefore, although there was no error was committed by the trial court in passing the order dated 07.08.92 upon application filed under Order 8 Rule 8A(2) CPC but Board of Revenue quashed the order without application of mind erroneously, therefore, the order impugned may be quashed. 7. Learned counsel for the respondents vehemently argued that at present Order 8 Rule 8A(2) CPC is not in existence and once the application filed under Order 13 Rule 2 CPC was rejected there was no occasion left for the trial court to allow the application filed under Order 8 Rule 8A(2) CPC, according to respondent no error has been committed by the Board of Revenue while accepting the revision petition filed by plaintiff respondents and to pass the order impugned in which there is no illegality. 8. After hearing learned counsel for the parties, I have perused Para 6 & 7 of the order dated 25.06.96 passed by Board of Revenue, Ajmer reads as under:- "The defendant-petitioners have filed these documents previously before learned Asstt. Collector, Udaipur on 22.2.84, along with an application under Order 13 Rule 2 C.P.C, it ws opposed by plaintiff-non-petitioner. Learned court was pleased to reject it on 14.4.84. Collector, Udaipur on 22.2.84, along with an application under Order 13 Rule 2 C.P.C, it ws opposed by plaintiff-non-petitioner. Learned court was pleased to reject it on 14.4.84. A Revision/TA/86/84/Udaipur, Laxmi Lal v. Ganga filed before Board was also rejected on 24.2.90, then the same document could not be filed along with an application under order 8A(2) of the C.P.C. Under this section, it was the duty of the defendant to produce documents upon which relief was claimed by him or where the basis of his defence based upon a document in his possession or power, he shall produce it in court when the written statement is presented by him, and shall at the same time, deliver the document or a copy thereof, to be filled with the written statement. Under sub-clause 2, 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. The defendant-petitioner has already produced these documents alongwith an application under Order 13 Rule 2 of the C.P.C and it was rejected by Asstt. Collector then there arose no occasion to file these documents again along with an application under order 8A(2) of the C.P.C. The learned Astt. Collector exceeded in his jurisdiction in allowing such documents ignoring the decision of Revenue Board and thereby placed on record the documents. Therefore, his order cannot be supported. 7. Consequently, the revision petition has got merits; it is accepted with cost throughout, The documents produced alongwith application under order 8A(2) C.P.C are not taken on record. Pronounced in the open court." 9. Therefore, his order cannot be supported. 7. Consequently, the revision petition has got merits; it is accepted with cost throughout, The documents produced alongwith application under order 8A(2) C.P.C are not taken on record. Pronounced in the open court." 9. Upon perusal of the above adjudication, it is abundantly clear that finding given by the Board of Revenue, Ajmer is based upon cogent reasons to quash the order dated 07.08.92 passed by the trial court and to hold that once the application filed under Order 13 Rule 2 CPC is rejected, for the same relief by the Board of Revenue, there was no occasion left for the petitioner defendant to file these documents again alongwith application under Order 8 Rule 8A of C.P.C. This Court is in full agreement with the order of Board of Revenue, Ajmer in which it has been held that Assistant Collector exceeded its jurisdiction in allowing the application for taking documents on record ignoring the earlier decision of Board of Revenue, Ajmer passed in revision petition passed on 24.02.90 for same relief. 10. As per basic principles of law, no litigant can be permitted to file an application again and again after gross delay for the same relief for which the earlier order for rejection of prayer became final.In view of above, this writ petition is hereby dismissed.Petition dismissed. *******