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2015 DIGILAW 1218 (RAJ)

Manoj Kumar v. Bhoma Ram

2015-07-02

ARUN BHANSALI

body2015
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 25.05.2015 passed by the trial court, whereby, the application filed by the petitioner under Section 65 of the Evidence Act read with Order 18, Rule 4 and 17 CPC has been rejected. 2. The petitioner-plaintiff filed a suit for mandatory and permanent injunction pertaining to land situated at village Osian; the plaintiff led his evidence and where after the defendants also completed their evidence and matter was fixed for final arguments. 3. At this stage, the petitioner filed the present application, inter alia, with the averments that the petitioner has been examined qua Exhibits-1 to 12, however, a note was placed by the trial court that Exhibits-1 to 6, in absence of original, would not be read; the plaintiff has filed copies of the document on record and was not permitted to produce certified copies and his evidence was closed. 4. The application was filed seeking to get the documents marked as exhibits, permit secondary evidence and to permit the petitioner to lead evidence as a recalled witness for the said purpose. 5. Though no reply was filed by the defendants but the application was opposed. 6. The trial court after hearing the parties, came to the conclusion that along with the suit neither original nor certified copies were produced; the issues were framed on 05.11.2012; affidavit in evidence was filed on 08.10.2014; in the affidavit reference to original sale deed and its photo copy was made and that also qua the other five exhibits; the witness was cross-examined; the plea regarding not permitting the petitioner to produce certified copy was not borne out from the record; on the other hand, it was apparent that the petitioner was granted 11 opportunities to lead evidence and on coming to the conclusion that the application has been filed at the stage of arguments apparently for the purpose of filling up the lacuna, dismissed the application. 7. 7. It is submitted by learned counsel for the petitioner that the original and certified copies were specifically indicated in the evidence affidavit filed by the petitioner and he was cross-examined based on the said affidavit; however, when it was noticed by the trial court that Exhibits-1 to 6 were not original, it was endorsed on cross-examination that the said documents would not be read; the petitioner filed the application with due diligence, however, the trial court by merely acting on the technicality has rejected the application; it was submitted that in case the petitioner was not permitted to mark Exhibits-1 to 6, the entire purpose would be frustrated while it would not affect the defendants at all as the defendants have already cross-examined the plaintiff on the said documents and, therefore, the order impugned deserves to be quashed and set aside. 8. Reliance was placed on Gullipalli Naram Naidu v. Kinthali Kumaraswami, AIR 2003 AP 481 and Jodhpur Gums & Chemicals Pvt. Ltd. v. Punjab National Bank & Ors., AIR 1999 Raj. 38 . 9. I have considered the submissions made by learned counsel for the petitioner and have perused the material placed on record. 10. It is apparent that the petitioner based on the documents available on record led his evidence on 16.12.2014; where after the defendants led their evidence, which was concluded on 31.01.2015 and the matter was fixed for final arguments on 18.02.2015; then the present application was filed by the petitioner seeking recall of the petitioner himself as witness so as to mark the documents 1 to 6 as exhibits along with the originals/certified copies of the said documents; a prayer was also made to permit leading of secondary evidence. 11. The entire conduct of the petitioner in not even caring to move application under Section 65 of the Act before appearing for cross-examination, where after not producing the original/certified copies of the documents and even when on 16.12.2014 it came to his notice that in absence of original documents Exhibits-1 to 6 would not be read, the application was filed on 18.02.2015 after the defendants had closed their evidence; further the trial court has noticed that the petitioner was granted as many as 11 opportunities, where after, the evidence was led on 16.12.2014 clearly indicates the casual and negligent conduct of the petitioner. 12. 12. In case the application filed by the petitioner was to be accepted, the same would put the stage of the suit back to evidence of the plaintiff though evidence of the defendants is already over; the entire sequence of events as noticed hereinbefore clearly reflect the approach of the petitioner in conducting the litigation and permitting the petitioner to now appear as a recalled witness, produce documents, seek permission to lead secondary evidence and getting himself cross-examined would be putting premium on such conduct, which the trial court has already rejected. 13. So far as the judgments cited by learned counsel for the petitioner are concerned, in the case of Gullipalli Naram Naidu (supra) the permission was granted only on account of the fact that petitioner had already led secondary evidence and where after the original document was found, which the party wanted to get exhibited. While in the case of Jodhpur Gums & Chemicals Pvt. Ltd. (supra) the document was already on record and only on account of over sight of the Advocate, the same could not be marked as exhibit. The facts and circumstances of the said cases have no similarity and, therefore, the law laid down in the said cases have no application to the present case. 14. In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.