Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 161 (JHR)

Chattu Ram Horil Ram (Pvt. ) Ltd. v. Raju Ram

2015-02-04

SHREE CHANDRASHEKHAR

body2015
Order Aggrieved by order dated 04.06.2007 whereby, the application for adducing further evidence has been dismissed, the petitioner has preferred the present writ petition. 2. Briefly stated, an eviction suit being Eviction Suit No. 23 of 1991 was filed by the petitioner seeking eviction from a portion of suit property. The petitioner preferred a Title Suit No. 02 of 1996 seeking a declaration that Sale-Deed No. 2972, Sale-Deed No. 2973, Sale-Deed No. 2974 dated 12.03.1993, Sale-Deed No. 6992 dated 26.05.1988 and Sale-Deed No. 12847 dated 16.10.1988 are void ab initio, illegal, inoperative and collusive therefore, requires to be cancelled. The petitioner preferred application dated 03.09.2005 with prayer to adduce certified copy of sale-deeds and to examine representative of the company for proving the documents. Petition dated 03.09.2005 was resisted by the defendants contending that the present application has been filed for delaying disposal of the title suit. The said application has been dismissed vide order dated 04.06.2007 and therefore, the petitioner has approached this Court. 3. Heard learned counsel for the petitioner and perused the documents on record. Counsel for the respondents are absent. 4. The learned counsel for the petitioner refers to paragraph no. 3 of the plaint of Title Suit No. 02 of 1996 and submits that the suit was filed seeking declaration that the sale-deeds are null and void, inoperative etc and therefore, it was necessary for the plaintiff to bring on record the certified copy of the sale-deeds. The certified copy of sale-deeds are public documents and therefore, no formal proof is required. Since, the plaintiff has sought a declaration with respect to the Sale-Deed No. 2972, Sale-Deed No. 2973, Sale-Deed No. 2974 dated 12.03.1993, Sale-Deed No. 6992 dated 26.05.1988 and Sale-Deed No. 12847 dated 16.10.1988 and photocopies of the same are already on record, the learned Trial Court should have allowed the application dated 03.09.2005. 5. A perusal of paragraph nos.3 and 4 of the plaint of Title Suit No.2 of 1996 discloses that the petitioner has filed the suit seeking a declaration that sale deeds dated 12.03.1993, 26.05.1988 and 16.10.1988 are void abinitio, illegal inoperative, collusive etc. however, the certified copies of the sale deeds were not brought on record. It appears that certified copy of the Memorandum and Article of association of the petitioner-company was also not brought on record and thus, it was not marked as Exhibit. however, the certified copies of the sale deeds were not brought on record. It appears that certified copy of the Memorandum and Article of association of the petitioner-company was also not brought on record and thus, it was not marked as Exhibit. Though, photocopies of the sale deed and the Memorandum and Article of the Association of the petitioner-company have already been brought on record. It appears that after the plaintiff examined three witnesses, application dated 03.09.2005 was filed seeking permission of the Court to adduce further evidence. The said application has been dismissed vide order dated 04.06.2007. 6. The learned counsel for the petitioner further submitted that in the Eviction Suit No.23 of 1991, the original documents are missing from the Court. In the present proceeding, though the photocopies of the sale deeds and the Memorandum and Article of Association of the petitioner-company were brought on record, inadvertently certified copies of those documents were not filed and thus, could not be marked as Exhibits. It is submitted that though the learned trial court has observed that a public document does not require formal proof however, since the certified copy of the Memorandum and Article of Association of the petitioner-company would not fall under Section 74 of the Evidence Act, the said document may be permitted to be brought on record and the witness namely, Dayanand Prasad Bhadani, who is Director of the plaintiff-company may be permitted to be examined as the plaintiff's witness. 7. In “K.K. Velusamy Vs. N. Palanisamy”, reported in (2011) 11 SCC 275 , the Hon'ble Supreme Court has held as under: “19. ….......... But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.” 8. In the above facts and circumstances, I am of the opinion that one opportunity may be granted to the petitioner for producing the certified copy of the Memorandum and Article of Association of the petitioner-company and the witness namely, Dayanand Prasad Bhadani may be permitted to be examined by the plaintiff for proving the said document. 9. In view of the aforesaid facts and circumstances of the case, the writ petition is allowed with the cost of Rs.25,000/-. The plaintiff is directed to examine the witness namely, Dayanand Prasad Bhadani on or before 20.03.2015. It is made clear that this order is subject to payment of Rs.25,000/- in the trial court to be paid to the defendants and no further adjournment would be granted to the plaintiff for examining the said witness. Petition allowed.