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2016 DIGILAW 1196 (HP)

Kirti Prakash v. Surender Kumar

2016-06-28

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present petition is maintained by the petitioners defendants (hereinafter referred to as ‘the petitioners’) against the order of learned Civil Judge (Junior Division), Court No. (IV), Mandi, District Mandi, H.P., in CMA No. 8 of 2016 of Civil Suit No. 157 of 2012, whereby the learned Court below dismissed the application of the petitioners under Order 8 Rule 1-A(3) CPC for producing on record certain documents. 2. Briefly stating the facts giving rise to the present petition are that the petitioners filed an application under Order 8 Rule 1-A (3) CPC, for producing certain documents on record, which were not traceable earlier, in a suit filed by respondent-plaintiff (hereinafter referred to as ‘the respondent’) for declaration, injunction and also for confirmation of joint possession. It is averred that these documents are essential for deciding the real controversy and it will not cause any prejudice to the other party. It is further averred that the documents, which are intended to be produced on record, are public documents, i.e. certified copy of Mutation No. 366, dated 20.03.1993, copy of Relinquishment deed, dated 11.11.1992 and copies of judgment and decree dated 18.12.1968. These documents were not produced on record earlier, as the same were not traceable and could not be filed. 3. Conversely, the respondent has submitted before the learned Court below that these documents were within the knowledge of the petitioners and they have not produced the same intentionally. It is also averred that the petitioners had earlier moved an application under Order 8 Rule 1-A(3) CPC for producing certain documents on record, which was allowed. 4. The learned Court below dismissed the application of the petitioner on 13.01.2016 and has observed as under: “From perusal of the case file and the documents sought to be prove it is evident that documents are well within knowledge of the defendants at the time of filing written statement and despite having knowledge they have not filed these documents. Moreover, no sufficient cause has been shown for filing documents at this stage. From the file it is evident that earlier also an application has been filed by defendant to place on record some judgment and decree which was allowed. Keeping in view the facts and circumstances of the present case, I deem it appropriate to dismiss application as it has been filed just to linger on proceedings. From the file it is evident that earlier also an application has been filed by defendant to place on record some judgment and decree which was allowed. Keeping in view the facts and circumstances of the present case, I deem it appropriate to dismiss application as it has been filed just to linger on proceedings. Accordingly, application is dismissed.” 5. I have heard the learned counsel for the parties and have gone through the record in detail. 6. After going through the record, it is found that the Court below had already given an opportunity to the petitioners to produce the documents on record, but in spite of that opportunity, the documents were not produced on record. On 05.06.2015 the Court below has held that no party should be deprived of their right to contest the case properly and effectively and in the interest of justice allowed the application to place on record the relevant documents subject to the cost of Rs.100/-, but even thereafter on 02.09.2015 when the case was listed for defendants’ witnesses, again an application was moved and the same was dismissed vide the impugned order. 7. At this stage, the learned counsel for the petitioner has argued that one and the last opportunity may be granted to the petitioner to produce the documents, i.e., certified copy of mutation No. 366, dated 20.03.1993, copy of relinquishment deed, dated 11.11.1992, copies of judgment and decree, dated 18.12.1968, before the learned Civil Judge (Sr. Division), Court No. IV, Mandi. 8. Taking into consideration the fact that the case is yet at the stage of defendants’ witnesses, it is in the interest of justice to allow last opportunity to the petitioners to produce the documents on record and respondents are required to be compensated adequately. Accordingly, the petition is allowed subject to cost of Rs.5000/- (rupees five thousand only). Therefore, it is ordered that the petitioners be allowed to produce documents, i.e., certified copy of mutation No. 366, dated 20.03.1993, copy of relinquishment deed, dated 11.11.1992, copies of judgment and decree, dated 18.12.1968, before the learned Court below subject to payment of costs of Rs.5000/- to the respondents. It is also ordered that the Court below shall list the case for defendants’ witnesses and if on that day the cost is paid to the respondents, the petitioner be allowed to produced the documents as referred hereinabove, in accordance with law. It is also ordered that the Court below shall list the case for defendants’ witnesses and if on that day the cost is paid to the respondents, the petitioner be allowed to produced the documents as referred hereinabove, in accordance with law. 9. Accordingly, the petition is disposed of, so also pending applications, if any, and the parties are directed to appear before the learned Civil Judge (Jr. Division) Court No. IV, Mandi, District Mandi, H.P., on 18th July, 2016. 10. The Registry is directed to send the records of the learned Court below forthwith so as to reach the learned Court well before the date fixed.