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2013 DIGILAW 504 (JHR)

Md. Ghulam Ali v. Md. Suleman

2013-04-16

P.P.BHATT

body2013
Order The petitioners, by way of filing the instant writ petition under Article 227 of the Constitution of India, have prayed for quashing and setting aside the orders dated 28.5.2012 and 5.9.2012, whereby, the court below has refused to mark exhibits of certain documents, which according to petitioners, were necessary for the determination of the issue involved in the case. 2. Heard the learned counsel for the parties and perused the impugned judgments as well as materials placed on record. 3. It appears that in the court below three suits bearing Title Suit No. 55/03, Title Suit No. 63 of 2003 and Title Eviction Suit No. 13/2003 were filed. According to the learned counsel for the petitioners, the sale deed, which is vital documents, was produced in Title Suit No. 63 of 2003 and since the said suit was pending, the petitioner was not in a position to produce the said document in Title Suit No. 55/2003. 4. The learned counsel for the petitioners in support of his submissions has referred to and relied upon the decisions given in the case of Lakshmi and Anr. Vs. Chinnamaal @ Rayyammal and Ors. reported in 2009(3)JCR 90 (SC) and by referring para 12 of the said judgment submitted that the court below should not ordinarily refused the production and marking of a document on record, which is essential for proving the case by a party. The another decision is also referred to and relied upon by the learned counsel for the petitioners given in the case of Mutar Dhobi Vs. Parbil Dhobi and Ors. reported in 2012(3) JLJR 248 . By referring paras 4 to 6 of the said judgment, the learned counsel for the petitioner submitted that the procedural technicalities should not come in way of the parties for the production of essential documents which are necessary for the determination of the real issues, involved in the matter. 5. As against this, the learned counsel for the respondents- plaintiffs submitted that Title Suit is of the year 2003 and ample opportunity was available to the defendants for production of the said documents, however, the said documents were not produced at any early stage and, therefore, the court below rightly and properly rejected the application made by the petitioners- defendants. As against this, the learned counsel for the respondents- plaintiffs submitted that Title Suit is of the year 2003 and ample opportunity was available to the defendants for production of the said documents, however, the said documents were not produced at any early stage and, therefore, the court below rightly and properly rejected the application made by the petitioners- defendants. The learned counsel for the respondents by referring the reasons assigned by the court below submitted that the court below has taken serious note about the conduct of the petitioners-defendants and, thereafter, rejected the application preferred by the petitioners- defendants. The learned counsel for the respondents further pointed out by referring counter affidavit and the order dated 5.9.2012 that the petitioners- defendants preferred review application before the court below but the said review application was also rejected by the court below and this order was not challenged by the petitioner at the time before filing of this petition, though it was well within the knowledge of the petitioners-defendants. Therefore, according to the learned counsel for the respondents, the material fact has been suppressed at the time of filing of this petition. The learned counsel for the respondents has also referred to and relied upon the following decisions in support of his submissions:- Learned counsel for the respondents submitted that in view of the principles laid down by the Hon'ble Apex Court, the petitioners- defendants is not entitled to get any relief(s) as prayed for. Learned counsel for the respondents by referring one of the cases cited by the learned counsel for the petitioners reported in 2009(3) JCR 90(SC) and by referring paras 17(ii) and (iii)of the said judgment submitted that the principles enumerated therein and looking to the conduct of petitioners- defendants, they are not entitled to get any relief(s) as prayed for. 6. Considering the aforesaid rival submissions of the parties, it appears that the application for production and marking of exhibit of sale deed, which was produced in another Title Suit No. 63/2003 was made by the petitioners- defendants by submitting an application which is annexed to the petition vide Annexure-A in the year 2012. 6. Considering the aforesaid rival submissions of the parties, it appears that the application for production and marking of exhibit of sale deed, which was produced in another Title Suit No. 63/2003 was made by the petitioners- defendants by submitting an application which is annexed to the petition vide Annexure-A in the year 2012. It appears that in the said application a reference has been made in para 3 that a petition dated 21.7.2006 was filed by way of information to the learned court below that the same set of documents has been produced in another case i.e. Title Suit No. 63/2003. It further appears that in Title Suit No. 55/2003, the evidence of plaintiffs was closed on 6th January, 2009 and thereafter, the defendants started his evidence and their evidence was closed on 13th January, 2011. It further appears that after 28.4.2010, the defendants, despite giving more than 15 opportunities, have not led any evidence in this case. It further appears that after closure of the evidence by order dated 13th January, 2011, the matter was kept for argument on 6.1.2012 and, therefore, it appears that ample opportunities were available before the petitioners-defendants to move such an application at an early point of time with a request to allow them to produce the documents, which is a vital document for determination of real issues involved in this case. For this purpose, the learned counsel for the petitioners tried to justify by submitting that due to valid reasons, the defendants could not move such an application, as they had to obtain the certified copy of the said documents so as to produce the same in the instant case, whereas, on the other side, the learned counsel for the respondents has demonstrated the dates referred above and submitted that there were ample opportunities available to the defendants, but the defendants only with a view to delay the proceedings, filed such application at a belated stage. It further appears that the same set of documents was produced in Title Suit No. 63/2003 and the present suit is also of the year 2003 and evidence was concluded in the year 2011 and thereafter, the matter is pending at argument stage. Thus from the impugned order, the conduct of the petitioners-defendants clearly indicates that the petitioners-defendants has filed such an application at a belated stage. Thus from the impugned order, the conduct of the petitioners-defendants clearly indicates that the petitioners-defendants has filed such an application at a belated stage. However, at the same point of time, in view of the judgment i.e. referred to and relied upon by the learned counsel for the petitioners, reported in 2009(3) JCR 90(SC) documents in question being an essential documents for proving the case by a party, ordinarily the same should not be refused and opportunity was required to be given for production and marking of the said documents as exhibit and for that purpose, procedural law/technicalities should not be allowed to come in way of the parties as the ultimate goal is to provide substantial justice to the parties. The another judgment referred to and relied upon by the learned counsel for the petitioners reported in 2012(3) JLJR 248 also appears to be relevant for the purpose of deciding the present case as the facts of the present case appears to be similar to the referred case, which has been cited by the learned counsel for the petitioners. The case laws, which have been referred to and relied upon by the learned counsel for the respondents- plaintiff is concerned, the same were not applicable to the facts of the present case. In view of the underlying principle laid down by the Hon'ble Apex Court, this Court is of the view that instead of entering into the procedural technicalities the court should make endavour to do substantial justice and thereby give an opportunity for production of a vital documents, which are necessary for the determination of real issues and controversies between the parties. 7. In the instant case as discussed above, the documents were very much on record of Title Suit No. 63/2003 and, the said document was also necessary for the determination of Title Suit No. 55/2003 as it has been stated in the application filed by the petitioners- defendants, therefore, this court is of the view that the impugned orders dated 28.5.2012 and 5.9.2012 are required to be set aside and the petitioners- defendants are required to be given an opportunity for production of the said documents. The court below is also directed to consider for marking as exhibits the said documents after hearing the parties and, thereafter, a fair opportunity be provided to the respondents-plaintiffs to adduce evidence, if any, in this regard. The court below is also directed to consider for marking as exhibits the said documents after hearing the parties and, thereafter, a fair opportunity be provided to the respondents-plaintiffs to adduce evidence, if any, in this regard. In view of the conduct of the petitioners narrated by the learned court below in its order, a cost of Rs. 2,500/-(two thousand five hundred only) is ordered to be imposed upon the petitioners-defendants. The amount of cost be deposited in the court below and the same shall be paid to the respondents. 8. With the aforesaid observations and directions, this writ petition is allowed.