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Himachal Pradesh High Court · body

2014 DIGILAW 778 (HP)

Bhalku Ram v. Mathra Dass

2014-06-21

RAJIV SHARMA

body2014
JUDGMENT Rajiv Sharma, Judge. This petition is directed against the order dated 24.1.2014 rendered by the Civil Judge (Junior Division), Court No. 3, Hamirpur in CMA No. 30/2014 in Civil Suit No. 102/2000. 2. “Key facts” necessary for the adjudication of this petition are that petitioners-plaintiffs (hereinafter referred as the “plaintiffs” for convenience sake) filed a Civil Suit registered as Civil Suit No. 102/2000 in the court of Civil Judge (Junior Division), Court No. 3, Hamirpur. The suit was filed for declaration that the plaintiffs and proforma defendants are owners in possession of the suit land and the entries made in the revenue record showing the contesting defendants as nonoccupancy tenants alongwith plaintiffs are wrong and contrary to the position existing on the spot and such illegal entries made without the knowledge or notice to the plaintiffs are without jurisdiction, nullity and not binding on the plaintiffs. The case was earlier decided by the learned Civil Judge (Junior Division). However, the learned District Judge has remanded the matter. 3. Plaintiffs have moved an application under order 7 rule 14 (3) of the Code of Civil Procedure for permission to tender in evidence certified copy of plaint dated 19.8.1969, copy of amended plaint dated 7.7.1976, copies of judgment and decree dated 18.11.1978 and copies of Khasra Girdawari 1965-66, 1977-78, 1967-68 and 1976-77. According to the plaintiffs, documents were not earlier available with them and they have obtained the same recently. According to them, delay in placing the documents on record was neither intentional nor deliberate. 4. The application was resisted by the contesting defendants. According to them, the application was misconceived and has been filed belatedly. 5. Mr. Dheeraj K. Vashistha has vehemently argued that the production of documents is necessary for complete and effective adjudication of the matter. 6. Mr. K.D. Sood, learned Senior Advocate has vehemently argued that the application has been filed to delay the proceedings. 7. I have heard the learned counsel for the parties and have gone through the impugned order and pleadings carefully. 8. The Civil Suit was filed by the plaintiffs in the year 2000. The application has been filed belatedly after the recording of evidence. No convincing and cogent reasons have been assigned why the documents have not been placed on record earlier. The plaintiffs have already been granted ample opportunities to produce the evidence. 8. The Civil Suit was filed by the plaintiffs in the year 2000. The application has been filed belatedly after the recording of evidence. No convincing and cogent reasons have been assigned why the documents have not been placed on record earlier. The plaintiffs have already been granted ample opportunities to produce the evidence. In case the application is allowed at this belated stage, it is bound to prejudice the case of defendants. These documents were required to be placed on record during the trial. The application filed by the plaintiffs is devoid of merit and the same has rightly been rejected by the Civil Judge (Junior Division), Court No.3, Hamirpur. 9. Their Lordships of the Hon'ble Supreme Court in M/s Bagai Construction through its proprietor Lalit Bagai v. M/s Gupta building Material Store, AIR 2013 SC 1849 have held that after change of various provisions by way of amendment in the Code of Civil Procedure, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reason time. Their Lordships have further held that in fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. Their Lordships were considering filing of two applications under order 7 rule 14 and under order 18 rule 17 of the Code of Civil Procedure. Their Lordships have further held that the plaintiff had filed the application before the trial court in order to overcome the lacunae in the plaint, pleadings and evidence. Those evidence have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. In the case before the Hon’ble Supreme Court, final arguments were heard on number of times and judgment was reserved and only thereafter in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Their Lordships have held as under : “6) In order to find out the acceptability of the impugned order or not, it is useful to refer the relevant provisions of the CPC which read thus: Order VII Rule 14 14. Their Lordships have held as under : “6) In order to find out the acceptability of the impugned order or not, it is useful to refer the relevant provisions of the CPC which read thus: Order VII Rule 14 14. Production of document on which plaintiff sues or relies.- (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff witnesses, or, handed over to a witness merely to refresh his memory……… 11) The perusal of the materials placed by the plaintiff which are intended to be marked as bills have already been mentioned by the plaintiff in its statement of account but the original bills have not been placed on record by the plaintiff till the date of filing of such application. It is further seen that during the entire trial, those documents have remained in exclusive possession of the plaintiff but for the reasons known to it, still the plaintiff has not placed these bills on record. In such circumstance, as rightly observed by the trial Court at this belated stage and that too after the conclusion of the evidence and final arguments and after reserving the matter for pronouncement of judgment, we are of the view that the plaintiff cannot be permitted to file such applications to fill the lacunae in its pleadings and evidence led by him. As rightly observed by the trial Court, there is no acceptable reason or cause which has been shown by the plaintiff as to why these documents were not placed on record by the plaintiff during the entire trial. Unfortunately, the High Court taking note of the words oeat any stage occurring in Order XVIII Rule 17 casually set aside the order of the trial Court, allowed those applications and permitted the plaintiff to place on record certain bills and also granted permission to recall PW-1 to prove those bills. Though power under Section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of the court and Court can exercise its discretion to permit reopening of evidence or recalling of witness for further examination/cross-examination after evidence led by the parties, in the light of the information as shown in the order of the trial Court, namely, those documents were very well available throughout the trial, we are of the view that even by exercise of Section 151 of CPC, the plaintiff cannot be permitted. 12) After change of various provisions by way of amendment in the CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC.” 10. Accordingly, in view of above, there is no merit in the petition and the same is dismissed, so also the pending application, if any. No costs.