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2016 DIGILAW 1490 (HP)

Kiran Bala v. Mansha Devi

2016-07-27

SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. Defendants’ application, so filed under Order 8 Rule 1A(3) of the Code of Civil Procedure, for placing on record original Will of deceased Jindu Ram, by leading evidence, came to be allowed by the trial Court vide order dated 19.3.2016, passed by Civil Judge (Senior Division), Court No. 1, Hamirpur, Himachal Pradesh, in CMA No. 49/16 in CS No. 38/11, titled as Mansha Devi and others v. Kiran Bala and others, subject matter of challenge by the plaintiffs (petitioners herein) in the present petition, filed under Article 227 of the Constitution of India. 2. Trial Court found the document necessary for adjudication of the controversy in issue between the parties. Despite delay, the application stands allowed to avoid multiplicity of litigation between the parties. 3. Plaintiffs, as indigent, filed a suit for possession of the land in question. It is not in dispute that they are claiming succession to the property originally owned by deceased Jindu Ram. 4. In the written statement, as is evident from Para-10, defendants refuted the plaintiffs’ claim, on the strength of Will executed by the original owner in their favour. 5. Issues framed by the trial Court do pertain to the proprietary rights of the parties. 6. In the application dated 20.2.2016, it stands pleaded, though not substantiated, that there had been inadvertent and bona-fide mistake on their part in not placing the document on record. 7. Relevant provision of the statute reads as under: Order 8 Rule 1A(3) “1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him. (3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.” 8. Evidently, before the document is produced and received in evidence, leave of the Court is absolutely necessary. Now, what are the parameters, which the court is required to consider, while granting leave, is well settled. Intent in procrastinating the proceedings; deliberate delay; irrelevant documents/evidence; are some of the factors to be weighed in mind while deciding the application. 9. In the instant case, both the parties are claiming right over the property, originally belonging to deceased Jindu Ram. Intent in procrastinating the proceedings; deliberate delay; irrelevant documents/evidence; are some of the factors to be weighed in mind while deciding the application. 9. In the instant case, both the parties are claiming right over the property, originally belonging to deceased Jindu Ram. Whether he had bequeathed the property in favour of some of the defendants or as to whether succession opened up with his death, are issues which necessarily require consideration for complete adjudication of the controversy inter se the Parties. 10. It is in this backdrop, no fault can be found with the impugned order. It cannot be said that the Court below committed any error of jurisdiction. It was within the power of the Court to have allowed the application. It cannot be said that the Court overstepped or failed to exercise jurisdiction so vested in it. It also cannot be said that the order is illegal or improper. Mistake in not promptly placing on record the document has been held to be bona-fide and inadvertent. Simply because another view is possible, this in itself would not be a reason sufficient to hold the order perverse. 11. One cannot shut eyes to the fact that parties hail from rural background and are not well conversant with the procedures of law. They only go by the advice of the counsel, who in fact was duty bound to have apprised the parties of their rights and adopted the procedure required to be followed. 12. By not allowing the document to be taken on record, serious prejudice would be caused to the defendants. In fact comparative mischief and inconvenience would lie in favour of the defendants/applicants and not otherwise. After trial, arguments have to be concluded by the parties. 13. Mr. G.D. Verma, learned Senior Advocate, assisted by Mr. B.C. Verma, Advocate, refers to various judicial pronouncements. 14. Reliance upon a decision rendered by a Coordinate Bench of this Court in CMPMO No.363 of 2015, titled as Nirmal Singh v. Manohar Lal and others, decided on 8.4.2016, is misconceived, for it having been based on given facts and circumstances. What primarily weighed with the Court was irrelevancy of the document sought to be placed on record. 15. 14. Reliance upon a decision rendered by a Coordinate Bench of this Court in CMPMO No.363 of 2015, titled as Nirmal Singh v. Manohar Lal and others, decided on 8.4.2016, is misconceived, for it having been based on given facts and circumstances. What primarily weighed with the Court was irrelevancy of the document sought to be placed on record. 15. In State of Karnataka & another v. K.C. Subramanya & others, (2014) 13 SCC 468 , the apex Court was dealing with the provisions under Order 41 Rule 27 of the Code of Civil Procedure and not the ones in question. In any event, the decision is distinguishable on facts and as such not applicable. To similar effect is the decision rendered by the apex Court in Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148 , and Jagdish Chand v. Ambika Devi and others, 2014(2) Shim.LC 774. 16. In Madan Mohan Aggarwal v. Smt. Mansa Devi and others, 1985(2) PLR 206, the Court was dealing with a case where additional evidence came to be taken on record after the hearing in the suit stood concluded, but no judgment was pronounced. To similar effect is the decision rendered in Sat Pal v. Ram Kumar and others, 1992 PLJ 5, and Soma Devi v. Guin Devi, AIR 2003 HP 158 . 17. The parameters, which are required to be considered by the Court, for exercising its jurisdiction under sub-rule (3) Rule 1A of Order 8 of the Code of Civil Procedure are different than the ones laid down under Order 41 Rule 27 of the Code of Civil Procedure. 18. For all the aforesaid reasons, present petition, devoid of merit, is dismissed. 19. Any observation made hereinabove shall have no bearing whatsoever on the merits of the main case. Parties, through their learned counsel, are directed to appear before the Court below on 24.10.2016. Trial is expedited and except for official witnesses, parties shall produce their evidence, if so required and desired, at their own risk and responsibility. Petition stands disposed of, so also pending applications, if any.