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2013 DIGILAW 69 (UTT)

Surinder Kaur v. Islam Ahmad

2013-02-27

K.J.SENGUPTA

body2013
JUDGMENT Kalyan Jyoti Sengupta, J. 1. This application under Article 227 of the Constitution of India has been filed questioning two orders, one passed by learned trial Judge rejecting the petitioner’s application for receiving the documents after the closure of the arguments, when the suit was fixed for delivery of judgment. It was observed by learned trial Judge that there is no sufficient reason and ground to entertain this application at belated stage. Petitioner before me is a plaintiff and took this matter to the first revisional court, namely, the learned District Judge who held that the order of rejection of the learned trial Judge was justified in the fact and circumstances of this case. 2. Learned counsel appearing for the petitioner submits that both the learned court below failed to exercise their jurisdiction by not entertaining the fresh document as evidence as it could be done under provision of law at any stage even before delivery of judgment. In support of his submission, he has placed reliance on a judgment of Hon’ble Single Judge of this Court in the case of Smt. Saroj Devi Jaiswal and Another vs. Additional District Judge and Another, 2011 (29) LCD 1084 and also Supreme Court’s decision in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, 2005 (23) LCD 1250. 3. Learned counsel for the respondent No.4, on the other hand, says that the proposition of law as propounded by learned counsel for the petitioner is not disputed but in the application there is no explanation as to why the document was not produced at the earlier stage of hearing of the suit. He has also submitted referring dates when evidence was closed by both the parties and court concluded the hearing and fixed the date for delivery of judgment and for re-arguments also that this application is delaying tactics on the part of the plaintiff who brought the suit in the year 1991. Realizing the fate of the suit, the plaintiff wants to prolong it keeping it pending. 4. In fact, the document which is sought to be filed was available in the year 1991 itself and it is not discovered recently nor it is new document. Moreover, the relevancy of the said document has not been pleaded in the petition. Realizing the fate of the suit, the plaintiff wants to prolong it keeping it pending. 4. In fact, the document which is sought to be filed was available in the year 1991 itself and it is not discovered recently nor it is new document. Moreover, the relevancy of the said document has not been pleaded in the petition. He further contends that both the courts below have not exercised their jurisdiction in the favour of the plaintiff. This Court under Article 227 of the Constitution of India shall not substitute its own discretion. Therefore, the application should be rejected. 5. I have heard leaned counsel for the parties. The only question which is falling for consideration before this Court is whether the learned Court has exercised discretion judiciously and rationally on the given fact & circumstances of the case. Before I express any opinion on this issue, I just mention relevant dates and also admitted facts. 6. The suit was filed in the year 1991 by the plaintiff/petitioner and after exchange of pleadings and completing the formalities, evidence of plaintiff was concluded on 04.05.2012 and evidence of defendant was concluded on 19.09.2012. It is also an admitted position that document, which is sought to be filed later on, is an old one of the year 1991 and it could have been produced at early stage. Why it could not be produced, is not explained in the petition. Therefore, it is clear that on the closure of argument of both the parties, no attempt was made to bring this document to make part of evidence on 15.01.2013. Argument was closed by the parties and an attempt was made by an application to bring the document on record too. The judgment was to be delivered on 23.01.2013. Presiding Officer was not present on 23.01.2013 as such, judgment could not be delivered on that day. The matter was posted for delivery of judgment on 18.02.2013, however judgment was not delivered and the Court allowed the parties to argue the matter and thereafter the matter was fixed for delivery of judgment on 18.02.2013. Taking advantage of adjournment of the matter, fix 23rd February, 2013. The plaintiff filed the application on 21.02.2013 for bringing the document on record. 7. Taking advantage of adjournment of the matter, fix 23rd February, 2013. The plaintiff filed the application on 21.02.2013 for bringing the document on record. 7. The fact mentioned aforesaid clearly establish that there has been complete lack of diligence if not culpable negligence, and it is not ignorance of the plaintiff/petitioner as alleged. This application was rejected by learned trial Judge on 22.02.2013 with the reason mentioned in the impugned order. I have gone through the reasons recorded by learned trial Judge. I am completely in agreement with the reasons and observation given therein. The revisional court has also accepted the order of the leaned trial Judge by the impugned order and the matter is fixed for delivery of judgment for tomorrow i.e. on 28.02.2012. Therefore, I am of the view that there is attempt of the plaintiff to delay the matter and moreover, there is no whisper in the petition as to why the document sought to be brought could not be produced at earlier stage. Under this circumstances, I cannot hold that of discretion exercised against the plaintiff is illegal or arbitrary or irrational. 8. The power of the court under law as explained by the Supreme Court is to be exercised to receive evidence before delivery of judgment in extraordinary and fit case and upon receipt of satisfactory explanation which can not be contradicted by the adversary on any circumstances. Therefore the decision cited by the learned counsel for the petitioner has no manner of application. Learned Single Judge in the judgment cited before me in para 6 has observed, what I have observed. In that case the Court allowed the application to receive further evidence before delivery of judgment on satisfactory explanation being given. Admittedly the case on hand is not the same. Accordingly, this application fails, however, dismissal of this application does not debar the applicant if so advised from making application under Order 41 Rule 27 CPC, if any appeal is preferred by any of the parties. 9. The writ petition is dismissed. 10. Since the matter is disposed of at the admission stage, leave is granted to Mr. Piyush Garg, Advocate appeared on behalf of respondent No.4 to file his vakalatnama in the department during the course of the day.