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2012 DIGILAW 919 (GAU)

Mahesh Kumar Yadav v. Ahmed Tea Company Pvt. Ltd.

2012-08-02

S.TALAPATRA

body2012
JUDGMENT S. Talapatra, J. 1. Heard Mr. C. Baruah, learned Senior Counsel appearing for the petitioner as well as Mr. K. N Choudhury, learned Senior Counsel appearing for the respondent This petition filed under Article 227 of the Constitution of India against the order dated 11.06.2012 passed by the Munsiff No. 2 Dibrugarh in Title Suit No. 76 of 2006 on rejecting the prayer of the petitioner to accept the original documents of which the photocopies were filed at the initial stage of the suit 2. The respondent, namely, Ahmed Tea Company Pvt. Ltd., instituted a suit against the original defendant, namely, Jay Gobind Yadav (Goala) for recovery of the khas possession of the suit premises by ejecting the said defendant and for realization of a sum of Rs. 16,140/- on account of arrear rent and compensation. The suit was initially registered as Title Suit No. 60 of 1999 and subsequently it was registered as Title Suit No. 78 of 2007 in the Court of the Munsiff No. 2 at Dibrugarh. 3. After death of the original defendant, the petitioner has been substituted as the defendant in the suit On 08.02.2005, the original defendant submitted a few photocopies of the certified copies of the sale deeds which were executed by the respondent herein causing sale of the adjacent land to the suit premises. According to the petitioner those were relevant documents to debunk the plea of bona fide need. By the order dated 11.01.2005 the Munsiff No. 2, Dibrugarh allowed receipt of those documents in the record. Relevant part of the order dated 11.01.2005 is extracted hereunder: The defendant has also filed another petition under Section 151 CPC praying for admitting the documents mention in the petition. Seen the petition. Heard both sides. Also perused the documents. It appears that the documents are vital for proper adjudication of the matter. As such, the petition is allowed. The documents submitted by the defendants are accepted and kept with the record. 4. After death of the original defendant the petitioner having substituted as the LR filed an additional written statement along with some additional documents. But by the order dated 06.01.2009 the Munsiff No. 2, Dibrugarh declined to accept the additional written statement and also to accept the documents. 4. After death of the original defendant the petitioner having substituted as the LR filed an additional written statement along with some additional documents. But by the order dated 06.01.2009 the Munsiff No. 2, Dibrugarh declined to accept the additional written statement and also to accept the documents. Being aggrieved, the petitioner approached this Court by filing a petition under Article 227 of the Constitution of India being CRP No. 77 of 2009. 5. By the judgment and order dated 18.06.2009, the said CRP No. 77 of 2009 was dismissed and the petitioner approached the apex Court by filing a special leave petition for appeal but the said petition was also dismissed with a rider that if the petitioner so advised may file an appropriate petition for review. Accordingly, a review petition being 02 of 2010 was filed in this Court and the said review petition was dismissed by the order dated 25.01.2012. In the said review petition it has been observed that: 'there would not be any difficulty in calling those N.J. cases from the court to prove mat the tenant is not a defaulter as provided under Section 5 of the Act and if any application is filed to bring those N.J. Cases, the learned trial Court within its domain would call for those N. J. cases to satisfy me dictum of the case reported in Sobha Biswas(supra). 6. The petitioner on 13.03.2012 filed all the original documents, photocopies of which were accepted by the Munsiff No. 2, Dibrugarh. But the Munsiff No. 2, Dibrugarh refused to accept the original documents by the order dated 11.06.2012, the impugned order herein. For appreciation the relevant part of the order dated 11.06.2012 is extracted hereunder: The defendant No. 1(a) filed the aforesaid petition with a prayer to accept all the original documents of the defendant stating inter alia that at the initial stage of the suit the above named defendant his predecessor-in-interest filed the Photostat copies of all the documents in support of his defense and the original documents are still lying with the defendant and therefore he begs to submit the documents along with list. The plaintiff has filed written objection to the aforesaid petition stating inter alia that the instant suit was filed on 09.05.2000 without any document or photocopies of documents nor mentioned any documents on any list of documents therein. The plaintiff has filed written objection to the aforesaid petition stating inter alia that the instant suit was filed on 09.05.2000 without any document or photocopies of documents nor mentioned any documents on any list of documents therein. The same has been reflected in order dtd. 6.1.09 of this court. The defendant then approached the Hon'ble Gauhati High Court in CRP 77/09 and Review application No. 2/10 and then Supreme Court also in SLP (Civil) 18306/2009. It has further been stated in objection that the defendant had earlier also filed additional written statement and also a further petition No. 2757/05 u/O. VI Rule 7 dtd. 16.11.05 sent never did mention about any documents being filed by the defendant since last thirteen years no the power of attorney holder advocate and new legal representation of deceased defendant Now in the midst of cross-examination of the plaintiff witness which is pending since 29 June, 2005 the defendant has suddenly decided to file some original documents which are still lying with the defendant which is beyond the provisions of order VIII Rule 1A and O. XIII Rule 1(1) of C.P.C. It has also been stated mat the contention of defendant the petition No. 267/12 are without any basis and not tenable in law as the photo copies of documents alleged to be submitted by defendant was done without any leave of the court and nor more any of these documents filed with written statement or additional written statement and prayed for rejecting the petition. I have heard Learned counsel for both sides. Learned counsel for defendant while submitting placed reliance on the Judgment of Hon'ble Delhi High Court delivered in IA No. 5683/08 on 18.5.09. I have gone through the case record carefully. Order VIII Rule 1A CPC relates to documents of the defendant which he is required to produce along with his written statement and under sub-rule (8) such document which ought to be produced in court by the defendant under this rule but not so produced can be accepted received in evidence on his behalf at the hearing of the suit with the leave of the court. But in the instant case where no document was filed along with the written statement, and copies, (Photostat) of some documents were filed before framing of issue without obtaining any leave from the court, and the defendant has filed the original copies of documents in court with a prayer to accept them without showing any cause as to why the documents were no filed as and when required to be filed and further why the Photostat copies were filed when the original were lying with defendant that is too without obtaining leave of the court. Further, the decision of the Delhi High Court on which the learned counsel for defendant relied upon also found not applicable to present situation. Under the aforesaid premises, and for reasons stated above, I don't find any merit in the prayed of the defendant 1(a). Hence prayer in pet. No. 267/12 is rejected. Return the original documents therefore. 7. Mr. Baruah, learned Senior Counsel for the petitioner submits that the originals of the documents, photocopies of which were accepted and placed in the records on having satisfied of their relevancy by the order dated 11.01.2005 were also not accepted by the impugned order. Those documents, according to Mr. Baruah, learned Senior Counsel, were not introduced of late but those were introduced on 11.01.2005 extending the opportunities of inspection by the plaintiff. Therefore, if the originals were allowed to be placed on the records neither of the parties would suffer any prejudice whatsoever. Moreso, when the relevancy of such documents for proper adjudication of the suit has been accepted by the Court by the said order dated 11.01.2005. 8. On the other hand, Mr. Choudhury, learned Senior Counsel strongly supported the impugned order. Mr. Choudhury at the outset drew attention of this Court to the Annexure-D, where the list of the originals as submitted by the petitioner is available. He further contended that this Court is required to look into the contents of the revision petition and the prayer made therein. To that extent he referred to the Annexure-VIII of the CRP No. 77 of 2009 and made a comparison showing that there is no difference between the documents appearing in Annexure-D to the present petition and Annexure-VIII to the CRP No. 77 of 2009 till serial No. 153 of the said Annexure-VIII. To that extent he referred to the Annexure-VIII of the CRP No. 77 of 2009 and made a comparison showing that there is no difference between the documents appearing in Annexure-D to the present petition and Annexure-VIII to the CRP No. 77 of 2009 till serial No. 153 of the said Annexure-VIII. But in the said Annexure-VIII there are some additional documents under sub-heading "documents now submitted from Sl. No. 154 to Sl. No. 188" but those documents were not insisted upon by the petitioner for acceptance by the Munsiff No. 2, Dibrugarh. Those were the documents which were not accepted by the Munsiff No. 2, Dibrugarh by the order dated 06.01.2009. It appears from the averments as made by the petitioner in the said CRP at para-10 as under: That the learned Munsiff heard both the parties on the question of acceptance of the additional written statement on 8.12.08 and by his order dated 6.1.2009 disposed of the matter. The learned Munsiff by the said order dated 6.1.09 refused to accept the additional written statement and accordingly rejected the same. By the same order the learned Munsiff ordered that the documents filed by the defendant No. 1(A) were also not accepted. The petitioner also prayed the following in the said CRP No. 77 of 2009: It is, therefore most respectfully prayed that Your Lordships may be pleased to issue a Rule calling upon the respondent to show cause as to why the order dated 6.1.2009 passed by the Munsiff No. 2. Dibrugarh in Title Suit No. 78/2007 shall not be set aside and why the learned munsiff shall not be directed to accept the additional written statement filed by the petitioner and also the documents filed by him on 17.9.2008 and why any other order/orders as Your Lordships may deem fit and proper shall not be passed; 9. On the face of the said averment and the prayer, this Court while disposing of the said CRP by the judgment and order dated 18.06.2009 dismissed the prayer of the petitioner holding that: therefore, the learned trial Court has rightly refused to accept the additional written statement filed by the petitioner as well as the additional documents. There is no error of jurisdiction or material irregularity committed in the exercise of jurisdiction by the learned trial Court warranting interference by this Court. 10. There is no error of jurisdiction or material irregularity committed in the exercise of jurisdiction by the learned trial Court warranting interference by this Court. 10. Thereafter, the petitioner having failed in the special leave petition to appeal approached this Court by filing a review petition being Review Petition No. 02 of 2010. The review petition was dismissed giving the rider as stated holding that: Thereafter the petitioner being legal representative of the deceased sought to allow him to file additional written statement introducing paragraphs 1, 2, 8, 9 and 10 of the amendment of the written statement sought for by the father of the petitioner which has also been rejected by the learned trial Court and this Court and therefore, the review as sought for would not come within the purview of Order XLVII of the Code. 11. Mr. Choudhury, learned Senior Counsel also referred to paragraph-5 of the order dated 25.01.2011 by which the review petition was dismissed. For appreciation, the paragraph-5 is extracted hereunder: 5. However, prior to filing of additional written statement by the petitioner, the deceased father sought for an amendment of his written statement which was rejected by the learned Munsiff on 30.07.07 against which a petition under Article 227 of the Constitution of India has been filed being CRP No. 336/2007 which culminated in dismissal by this Court on 16.10.07 upholding the order dated 30.07.07 which attained its finality. 12. It, therefore, surfaced that there was repeated attempts by the original defendant to get those documents admitted in the records at Annexure-VIII, though in the previous petition it has been mentioned as Annexure-IX, but failed. 13. Mr. Choudhury, learned Senior Counsel submits that by the order dated 11.01.2005 the photocopies of the documents which were accepted also were made part of the list of the documents which was refused to be accepted by the Munsiff by the Order dated 06.01.2009. The said order of the Munsiff dated 06.09.2009 has been affirmed by this Court by the order passed in the CRP No. 77 of 2009 and in the Special Leave Petition filed before the apex court and ultimately by the order dated 25.01.2011 as passed in Review Petition No. 02 of 2010. The said order of the Munsiff dated 06.09.2009 has been affirmed by this Court by the order passed in the CRP No. 77 of 2009 and in the Special Leave Petition filed before the apex court and ultimately by the order dated 25.01.2011 as passed in Review Petition No. 02 of 2010. Therefore, the Munsiff No. 2, Dibrugarh had no other alternative but to dismiss the prayer of the petitioner for accepting the same documents which were refused by the earlier order as affirmed by the superior courts. 14. Mr. Choudhury, learned Senior Counsel has referred to a decision emerged from this proceeding in Jay Govind Yadav(Goala) v. Ahmed Tea Company (P) Ltd. as reported in 2007 (4) GLT 548 where this Court expressed annoyance in the Mowing terms: 17. As observed by the Apex Court in Sangram Singh (supra) the Code of Civil Procedure is designed to facilitate justice and further its ends and not a panel enactment for punishment and penalties and also not a thing designed to trip people up. There is no doubt that too technical a construction of a section that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against, provided that justice is done to both the sides, otherwise the very means designed to further the ends of justice be used to frustrate it. In the instant case, as observed above, though the suit was filed in the year 1999 and the written statement was filed in the year 2002, the suit is still at the stage of cross-examination of the plaintiffs witness in the year 2007, i.e. even after eight years of filing the same, and conduct of the defendant goes to show that he is trying to delay disposal of such proceeding. Their is also no dispute to the proposition of law as laid down by the Apex Court in Ghanshyam Das (supra) that as far as possible, no proceedings in a Court of law should be allowed to be defeated on mere technicalities and substantial justice should not be sacrificed for hyper-technical pleas based on strict adherence to procedural provisions. 15. Finally, the question that has emerged for consideration is whether the Munsiff No. 2, Dibrugarh was correct in refusing the acceptance of the originals of the documents, photocopies of which were allowed to be introduced in the records by the order dated 11.01.2005. 15. Finally, the question that has emerged for consideration is whether the Munsiff No. 2, Dibrugarh was correct in refusing the acceptance of the originals of the documents, photocopies of which were allowed to be introduced in the records by the order dated 11.01.2005. The petitioner has craftily resorted to such plea for avoiding the rigours of the provisions. After amendment of the CPC as carried out by the Code of Civil Procedure (Amendment) Act 2002, the meaning of the word "document" has been restricted and for that purpose an illustration may be made. Order VIII, Rule 1(A) provides that: 1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.- (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. The clause "the document and copy thereof" has made a distinction between the document and the copy. Wherever the word "document" is appearing in the C.P. Code after the amendments, it shall always mean the original documents. Only with the leave of the Court such document which ought to have been produced in the Court by the defendant under the rule but has not been so produced be received in the records, not otherwise. Therefore, what was accepted by the order dated 11.01.2005 was the copies of the original documents and as such acceptance shall not automatically entail production of the originals in the records of the Court. Therefore, the rejection by the Munsiff No. 2, Dibrugarh has reached its finality by the order dated 06.01.2009 as regards the documents related to the order dated 11.01.2005. Therefore, the Munsiff No. 2, Dibrugarh had no authority to take a view contrary to the decision of this Court as rendered by the judgment and order dated 18.06.2009 in CRP No. 77 of 2009. Even in the Review Petition there had been no prayer for exclusion of those documents covered by the order dated 11.01.2005 and as such this Court finds no infirmity in the impugned order. Even in the Review Petition there had been no prayer for exclusion of those documents covered by the order dated 11.01.2005 and as such this Court finds no infirmity in the impugned order. As corollary to these findings, this petition stands dismissed. However, there shall be no cost in the facts and circumstances of the case.