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2013 DIGILAW 1321 (RAJ)

Hanuman Singh v. Suman Kanwar

2013-07-19

BELA M.TRIVEDI

body2013
JUDGMENT : Bela M. Trivedi, J. With the consent of the learned counsels for the parties the petition is heard finally at the admission stage. 2. The present writ petition has been filed by the petitioners-defendants Nos.2 & 3 under Articles 226 & 227 of the Constitution of India, challenging the order dated 01.04.2013 passed by the Additional District Judge No.11, Jaipur Metropolitan (hereinafter referred to as "the trial court") in Civil Suit No.215/12, whereby the trial court has rejected the application of the petitioners filed under Order 8, Rule 1A of CPC, for taking certain documents on record. 3. The short facts giving rise to the present appeal are that the respondent Nos.1 to 3-original plaintiffs have filed the suit against the present petitioners and the respondent No.4-original defendants Nos.1 to 3, seeking possession, permanent injunction and also rendition of accounts in respect of the suit property. During the pendency of the suit, the petitioners-defendants Nos.2 & 3 had filed an application under Order 16, Rule 6 of CPC to summon the officer-in-charge of the Police Station Shastri Nagar, Jaipur to produce certain documents like the original agreement to sell dated 25.11.1985, and one letter which documents were seized by the Police during the course of investigation in F.I.R. No.219/90, lodged by Mahaveer Singh, husband of the plaintiff No.2. The said application was dismissed by the trial court as per the order dated 12.05.2006. The writ petition as well as the special appeal preferred by the petitioners against the said order dated 12.05.2006, were also dismissed. The petitioners thereafter filed another application to lead secondary evidence with regard to the said documents, and the said application was also dismissed by the trial court vide its order dated 10.11.2006. The writ petition filed against the said order was also dismissed by the High Court. It appears that the said order passed in the writ petition was challenged before the Division Bench by way of special appeal in (writ petition No.330/2007), and the same was also dismissed on 15.03.2007. The petitioners challenged the said order before the Apex Court and following order was passed by the Apex Court on 01.10.2012:- "Learned counsel appearing for the respondent submits that the documents have already been made available to the petitioners required under Section 65 of the Evidence Act. In the circumstances, no orders are required to be passed in this special leave petition. In the circumstances, no orders are required to be passed in this special leave petition. The same is accordingly disposed of." 4. The petitioners thereafter filed an application under Order 8 Rule 1-A(3) read with Section 151 of CPC before the trial court seeking permission to place on record the agreement to sell dated 25.11.1985, and two notices on the ground that the certified copies of the said documents were obtained by the petitioners, on the submission of final report by the Police in F.I.R. No.219/90. The said application has been dismissed by the trial court vide the impugned order dated 01.04.2013. Being aggrieved by the said order, the present writ petition has been filed by the petitioners. 5. It has been submitted by the learned counsel Mr. Mahendra Goyal for the petitioners that the documents sought to be produced were already referred by the petitioners in the written statement, however, the said documents being not in custody of the petitioners, could not be produced at the relevant time. He also submitted that there was no delay on the part of the petitioners in pursuing the matter for obtaining the copies of the documents sought to be produced, from the custody of Police, inasmuch as the petitioners had already filed the application before the trial court for summoning the concerned Police Officer for producing the said documents, and the said application having been dismissed, the petitioners had also filed another application seeking permission to lead secondary evidence. Mr. Goyal also submitted that the as soon as the petitioners received the certified copies of the documents in question, the same were sought to be produced by an application under Order 8, Rule 1A (3), which has been wrongly dismissed by the trial court vide the impugned order. The learned counsel has placed reliance on the decision of Apex Court in case of Bondar Singh and Ors. v. Nihal Singh & Ors., (2003)4 SCC 161 ; Billa Jagan Mohan Reddy v. Billa Sanjeev A Reddy & Ors., (1994) 4 SCC 659 and the judgment of this Court in case of Chunni Lal v. Smt. Shanti Devi & Anr., reported in 1999(3) WLC 307 , in support of his submissions. 6. However, the learned counsel Mr. v. Nihal Singh & Ors., (2003)4 SCC 161 ; Billa Jagan Mohan Reddy v. Billa Sanjeev A Reddy & Ors., (1994) 4 SCC 659 and the judgment of this Court in case of Chunni Lal v. Smt. Shanti Devi & Anr., reported in 1999(3) WLC 307 , in support of his submissions. 6. However, the learned counsel Mr. R.K. Daga, for the respondent Nos.1 to 3 has vehemently submitted that the present petition has been filed by the petitioners delaying the proceedings before the trial court. According to him, after having failed to produce the said documents earlier and the orders passed by the trial court having also been confirmed upto Supreme Court, the trial court has rightly observed that the said documents were sought to be produced to delay the proceeding when the evidence of both the sides is over and the suit is pending for final arguments since 2007. He also submitted that the documents sought to be produced were not the certified copies as contemplated under Section 65 of the Evidence Act and such documents are also not admissible in evidence. 7. Having regard to the submissions made by the learned counsels for the parties, and to the impugned order passed by the trial court, it appears that this is the third round of litigation at the instance of the petitioners, who are the defendants in the suit and allegedly in possession of the suit property. It is pertinent to note that earlier the petitioners had filed the application under the provision contained in Order 16, Rule 6 for summoning the concerned Police Officer for the production of the documents mentioned therein, which application was dismissed by the trial court by observing that the petitioners could get the copies of the documents from the concerned Police Station. The said order passed by the trial court was confirmed by the High Court as well as by the Supreme Court. Thereafter, the petitioners again filed the application before the trial court for permitting them to lead the secondary evidence with regard to the documents which were in custody of the Police however the said application was also dismissed by the trial court and was confirmed by the Single Bench as well as by the Division Bench of the High Court. Thereafter, the petitioners again filed the application before the trial court for permitting them to lead the secondary evidence with regard to the documents which were in custody of the Police however the said application was also dismissed by the trial court and was confirmed by the Single Bench as well as by the Division Bench of the High Court. When the said order was carried in the Supreme Court, the SLP was disposed of on the statement made by the learned counsel for the respondents to the effect that the documents have already been made available to the petitioners required under Section 65 of the Evidence Act. Again the petitioners filed the application under Order 8, Rule 1A (3) seeking production of the documents, under the guise that they had obtained the certified copies of the said documents. 8. Having regard to the said proceedings filed by the petitioners one after the other, it clearly transpires that intention of the petitioners is to delay the proceedings of the suit, which is pending for final arguments since long time. The trial court while rejecting the application of the petitioners has observed that though the petitioners was granted sufficient opportunities to produce the documents earlier, the same were not produced, and now the documents in question could not be permitted to be produced, when the suit was pending for final arguments. The trial court having exercised its discretion having regard to the facts and circumstances of the case, this Court is not inclined to exercise its limited jurisdiction under Article 227 of the Constitution and to interfere with the said order, which is discretionary in nature. 9. There cannot be any disagreement with the ratio laid down by the Apex Court in the decisions relied upon by the learned counsel for the petitioners that the unregistered document like agreement to sell though not admissible in evidence, could be looked into for collateral purposes and that the trial court was not required to decide the admissibility of the documents at the stage of production of documents. However, the said decision has no application to the facts of the present case. However, the said decision has no application to the facts of the present case. Since the petitioners had filed the application for the production of the documents in question for which the trial court had already granted sufficient opportunities to produce the same earlier, no infirmity could be said to have been committed by the trial court in passing the impugned order rejecting the said documents, especially when the trial court had found that the said application was given at the fag end of the suit to delay the proceedings, and misuse the process of law. 10. In that view of the matter, the present petition being devoid of merits, deserves to be dismissed and is accordingly dismissed.