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2015 DIGILAW 1397 (GAU)

Akabbar Ali v. Md. Habibar Rahman

2015-11-06

SUMAN SHYAM

body2015
JUDGMENT : Heard Ms. R. Choudhury, learned counsel for the petitioner. Also heard Mr. A. Roshid, learned counsel representing the respondents. 2. This revision petition has been preferred by the petitioner/defendant in Title Suit No. 52/2008 pending in the court of Munsiff, Abhayapuri, Bongaigaon, being aggrieved by the impugned order dated 09-06-2015 whereby the learned Trial Court had rejected the application dated 18-02-2015 filed by and on behalf of the petitioner/defendant under Order XIII Rule 2 CPC seeking leave to introduce the documents mentioned therein at a belated stage. In the application filed under Order XIII Rule 2 CPC the defendant/petitioner has contended that their elder brother late Nabi Hussain who is the only educated person in the family was taking steps in the suit on behalf of the defendants and as such all the original documents were lying in the custody of said Nabi Hussain. However, sometime in the first part of the year 2013 Nabi Hussain was murdered by some unidentified persons and since then the petitioner/defendant has been taking steps in the suit. After the death of Nabi Hussain the engaged lawyer had also returned the brief as a result of which a new set of lawyers had to be engaged by the defendants. It has been mentioned in the petition that defendant does not have any clue as to why the original documents of the tile in support of the claim of the defendants, which were lying in the custody of Nabi Hussain, had not been submitted by him before settlement of the issue as per requirement under Order XIII Rule 1 CPC. 3. While drawing the attention of this Court to the pleadings contained in the paragraph 16 and 17 of the written statement Ms. Choudhury, learned counsel for the petitioner submits that by making the aforesaid application, the petitioner/defendant merely sought leave of the court to produce the certified copy of the registered deed of sale bearing No. 44/2004 as well as the copy of jamabandi issued by the office of the Sub-Registrar, North Salmara in support of their pleaded case. She submits that since the necessary pleadings in support of the aforesaid claim of the petitioner mentioning the document therein are already available in the written statement hence, there was no question of any prejudice being cause to the plaintiff/ respondent if the prayer of the petitioner was allowed. 4. She submits that since the necessary pleadings in support of the aforesaid claim of the petitioner mentioning the document therein are already available in the written statement hence, there was no question of any prejudice being cause to the plaintiff/ respondent if the prayer of the petitioner was allowed. 4. The learned counsel for the petitioner, further, submitted that while passing the impugned order dated 09-06-2015 the learned court below had completely ignored the peculiar facts and circumstances of the case and therefore, on a misconstruction of the law declared by this Court in the case of Nepal Das & Anr. Vs. Adhiti Deori & Ors. reported in 2011(2) GLT 336 had rejected the application of the defendant thereby causing serious prejudice to the interest of the petitioner. 4. Per contra, Mr. A. Roshid, learned counsel for the respondent submits that once the petitioner/ defendant has failed to produce the original document as per the mandate of Order XIII Rule 1 CPC, he cannot be allowed to introduce the said documents without the leave of the court. In support of his argument Mr. Roshid has placed reliance on a decision of this Court reported in 2011 (4) GLT 971 rendered in the case of Subhash Trading Co. (M/S) & Ors. Vs. Amolok Chand Surana. 5. I have considered the submission made by and on behalf of the parties and have also perused the authorities relied upon by the parties. In the case of Nepal Das (Supra) this Court had observed that if a document is not included in the list as per the requirement of Order XIII Rule 1 CPC, the court would not allow the introduction of such documents at a subsequent stage. This Court has, however, observed that if a party who seeks introduction of a document at a belated stage satisfies the court that introduction of the document would, if not allowed, cause, prejudice and it was for reasons beyond his control or power that the document could not be produced earlier nor could the document be included in the list of documents which are required to be filed at the time of presentation of the plaint or written statement, the court would be justified in granting leave to the applicant to introduce such document at a belated stage. It is, therefore, clear that rule regarding introduction of document under Order XIII Rule 1 CPC is not an inflexible rule and civil court is vested with power of granting leave at a belated stage for introduction of the documents, if the party succeeds in showing sufficient cause for previous default. 6. In the case of Subash Trading (Supra) this Court has also observed that material document not filed before the settlement of the issue cannot be admitted without the leave granted by the court. However, aforesaid authority relied upon by Mr. Roshid does not lay down any binding precedent of law that court does not have the power to grant leave permitting belated introduction of document even if it is satisfied as regards the question of prejudice as well as the validity of the explanation for previous non-production of the said document. 7. It is trite that procedural law is handmaid of justice. In a case if the court is satisfied that for just and valid reason, the party was prevented from production of particular document, the non-production of which will cause prejudice to the interest of the petitioner, It will certainly be competent to grant leave for introduction of such document even at a belated stage if applicant succeeds in furnishing sufficient explanation for previous default. 8. In the facts and circumstances of the present case, I am of the considered opinion that the petitioner has been able to give sufficient explanation for previous non-production of the document and the omission on the part of the petitioner cannot be attributed as an act of laches and negligence on his part. It further appears from the record that the foundation has already been laid down in the written statement for adducing such documents in evidence, and, therefore, the plaintiff/ respondent is well aware of the case of the defendant/petitioner. Since the matter pertains to the question of right, title and interest over the suit land, hence, if the defendant is not allowed to produce the document of title in support of his claim over the plot of land under his possession then the same would certainly cause serious prejudice to the interest of the petitioner. Since the plaintiff side would get opportunity to cross-examine the defendants, hence, no prejudice will be caused to him if the prayer is allowed. 9. Since the plaintiff side would get opportunity to cross-examine the defendants, hence, no prejudice will be caused to him if the prayer is allowed. 9. In such view of the matter, I am of the considered opinion that the learned court below had failed to properly exercise its jurisdiction conferred under the law. Consequently, the impugned order dated 09-06-2015 is held to be vitiated by illegality and non-application of mind. As such same is hereby set aside. The prayer made by the petitioner in the application dated 18-02-2015 filed under Order XIII Rule 2 CPC is hereby allowed by granting leave to the petitioner to introduce the document mentioned therein subject to the law as regards the admissibility of the said document under the Indian Evidence Act, 1872. With the above observation, this revision petition stands allowed.