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2015 DIGILAW 1209 (JHR)

Fagu Mahato v. Shankar Sao (Mahato)

2015-10-01

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 10.02.2014 whereby, application dated 04.09.2013 for recalling the plaintiffs' witness no.1 for proving the original document has been rejected, the present writ petition has been filed. 2. The petitioners are plaintiffs in Title Suit No. 18 of 2007. The suit was instituted for a decree of declaration of right, title and interest over Schedule-A and Schedule-B properties. The plaintiffs also prayed for a decree for removing two shutters fixed in the lane (gali) causing obstruction for going to the main road from the house of the plaintiffs and the shutter which was fixed in front of sweet meat shop. In the plaint, the plaintiffs asserted that the Jamindar of Jharia Raj Estate late Raja Kali Prasad Singh executed a registered Indenture dated 11.09.1947 for a permanent raiyati right over Plot No. 2182 measuring about 0.01 decimal, in Plot No. 2183 area about 0.16 decimals and a portion of Plot No. 2184 on annual rent of rupees one and cess three paise. The plaintiffs filed list of documents on 02.03.2007 which contained copy of the original deed no. 7512 dated 11.09.1947. After the parties closed their evidence and the suit was fixed for final argument, application dated 04.09.2013 was filed by the plaintiffs for marking deed of Indenture bearing no. 7512 dated 11.09.1947. The said application has been dismissed vide impugned order dated 10.02.2014. Aggrieved, the petitioners filed the present writ petition. 3. The learned counsel for the petitioners submits that, the deed of Indenture dated 11.09.1947 has been specifically pleaded by the plaintiffs in Title Suit No. 18 of 2007 and in the proceeding of the Title Suit, a copy of deed no.7512 dated 11.09.1947 was filed along with examination-in-chief of P.W.1 namely, Fagu Mahato. It is contended that due to inadvertence though other documents were marked, the deed of Indenture dated 11.09.1947 could not be marked and therefore, application dated 04.09.2013 was filed however, the trial court has erroneously rejected the prayer seeking permission to mark the said document as an exhibit. 4. Per contra, Mr. Birendra Kumar, the learned counsel for the respondent submits that, it is the duty of the plaintiff to mark a document through his witnesses. Though the plaintiffs got other documents marked through P.W.5 namely, Lakhiram Mahto and P.W. 6 namely, Raju Kumar Sao, the plaintiffs failed to exhibit deed of Indenture dated 11.09.1947. 4. Per contra, Mr. Birendra Kumar, the learned counsel for the respondent submits that, it is the duty of the plaintiff to mark a document through his witnesses. Though the plaintiffs got other documents marked through P.W.5 namely, Lakhiram Mahto and P.W. 6 namely, Raju Kumar Sao, the plaintiffs failed to exhibit deed of Indenture dated 11.09.1947. After the parties closed their evidence and the suit was fixed for final argument, at that stage the plaintiffs cannot be permitted to fill up lacuna in their case. Referring to Order XVIII Rule 4 C.P.C., the learned counsel for the respondent submits that, if the plaintiffs have failed to mark a document, at a later stage they cannot be permitted to get the document exhibited. 5. The plaint in Title Suit No. 18 of 2007 discloses that the plaintiffs have relied on the registered Indenture bearing no. 7512 dated 11.09.1947 executed by the Jamindar of Jharia Raj Estate, late Raja Kali Prasad Singh. It is also not in dispute that the list of documents filed by the plaintiffs mentions deed no. 7512 dated 11.09.1947. The learned counsel for the petitioners has submitted that, after the amendment in the Code of Civil Procedure, the witnesses are required to file their examination-in-chief and along with the examination-in-chief of the witness Fagu Mahto, a copy of registered Indenture bearing no. 7512 dated 11.09.1947 was filed. The witness in his examination-in-chief has referred to the said document. The learned counsel for the petitioners referred to Order XIII Rule 4 C.P.C. and submitted that, it was the duty of the Court to mark the documents which were filed along with evidence of the witnesses. The impugned order dated 10.02.2014 reveals that the only ground on which the application dated 04.09.2013 has been rejected is delay in filing the application. In “Mahila Ramkali Devi and Others Vs. Nandram (D) Thr. Lrs. and Others”, (2015) SCCR 568 the Hon'ble Supreme Court observed that, “it is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure”. Ordinarily, the parties are permitted to contest the suit on merits. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure”. Ordinarily, the parties are permitted to contest the suit on merits. The petitioners have pleaded inadvertence and it is a matter of record that though other documents filed by the plaintiffs have been marked as exhibits, the deed of Indenture dated 11.09.1947 has not been marked as exhibit. As noticed above, the plaintiffs have relied on the said deed of Indenture and therefore, I find substance in the plea taken by the petitioners that due to inadvertence the said document could not be marked as exhibit. Order XVIII Rule 17 C.P.C. provides that the Court at any stage of the suit may recall a witness who has been examined and may put other question to him as the Court thinks fit. In “K. K. Velu Samy Vs. N. Palanisamy” (2011) 11 SCC 275 it has been held that though the parties may not be permitted to lead further evidence, in exercise of power under Order XVIII Rule 17 C.P.C. the Court may permit a witness to be recalled. In the present case the recall of the P.W. 1 is required only to correct a technical mistake which occurred due to inadvertence of the plaintiffs. 6. Considering the aforesaid facts, I am of the opinion that the impugned order dated 10.02.2014 suffers from serious error in law. Accordingly, order dated 10.02.2014 is set-aside and the writ petition is allowed. The plaintiffs' witness shall be recalled for marking the aforesaid registered Indenture dated 11.09.1947 and the defendant shall be permitted to cross-examine the said witness however, with respect to the said document only.