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2016 DIGILAW 1878 (RAJ)

Shrawan Kumar Brahmin v. Tej Karan Brahmin

2016-12-21

DINESH CHANDRA SOMANI

body2016
JUDGMENT : Dinesh Chandra Somani, J. These writ petitions have been filed under Article 227 of the Constitution of India with prayer to quash and set aside the order dated 29.9.2016 and 22.9.2016 assailed in WP No. 14881/2016 and 14882/2016 respectively, passed by learned Civil Judge, Kanwas, District Kota in Civil Suit No. 10/2005 Shrawan Kumar v. Tej Karan & Ors. and to pass appropriate orders as may be deemed just and proper. As both the writ petitions arose from the different orders passed in the same civil suit, both the petitions were heard together and are being decided by this common order. A copy of the order be kept on the record of SBCWP No. 14882/2016. 2. Skeletal material facts necessary for disposal of these writ petitions ate that the plaintiff-petitioner filed a civil suit for declaration of he being an adopted son and for permanent injunction with averment that the defendant Nos. 1 and 2 are real brothers and the plaintiff is real son of defendant No. 2. It was submitted that on the basis of submissions made in the plaint, the plaintiff is entitled to be declared as adopted son of Late Shri Suraj Mai. After filing the plaint, written statement was filed by the defendants. 3. After completion of plaintiffs evidence, defendant Tej Karan filed an application under Order 8, Rule 8A of C.P.C. on 17.12.2015 with submission that certain documents which are necessary and relevant, are to be taken on record, which includes copies of written statements, judgment and an affidavit. It was also stated that the documents are public documents and affidavit of 4.6.1999 is old and there is no suspicion of it being forged or fabricated. The plaintiff petitioner opposed the application by filing reply thereto, and prayed to dismiss the application. 4. Thereafter, on 4.2.2016 the plaintiff-petitioner filed an application for taking the documents annexed with the application, on record with submission that younger brother of Late Shri Suraj Mai, Tej Karan (defendant) was an agent of Unit Trust of India. Suraj Mai and plaintiff-petitioner used to purchase shares of Unit Trust through defendant Tej Karan, which were received on the address of the petitioner. Suraj Mai and plaintiff-petitioner used to purchase shares of Unit Trust through defendant Tej Karan, which were received on the address of the petitioner. It was also submitted that signatures of Late Suraj Mai on alleged affidavit dated 4.6.1999, does not tally with his original signatures, therefore, plaintiff wants to produce some documents for comparison of the signatures, so that the truth may come on record. Petitioner also submitted that the necessity of filing application for taking the documents on record, had arisen to counter the averments made by the defendant in his application dated 17.12.2015 and prayed to take the documents, i.e., 5 certificates of Unit Trust, document of partition took place in Samvat 2028 between Suraj Mai and his brother Keshri Lal and Sale Deed dated 12.2.1982 bearing signatures of Shri Suraj Mai, for proving that the document/affidavit dated 4.6.1999 is forged. Defendant opposed the application by filing reply thereto and prayed to dismiss the application. 5. Learned Trial Court after hearing the arguments of the parties, allowed the application of the defendant filed on 17.12.2015 vide impugned order dated 22.9.2016 and documents filed with the application were taken on record. Learned Trial Court dismissed the application of the plaintiff-petitioner filed on 04.2.2016 vide its impugned order dated 29.9.2016. Being aggrieved with the orders dated 22.9.2016 and 29.9.2016, the plaintiff-petitioner has preferred these petitions under Article 227 of the Constitution of India. 6. We gave anxious consideration to the submissions made by learned Counsel for both the parties and perused the material placed by the parties, on record. 7. Learned Counsel for the petitioner submitted that learned Trial Court has committed illegality with material irregularity in not taking into consideration the material on record and had passed the impugned orders dated 22.9.2016 and 29.9.2016, which are wholly erroneous and illegal and deserve to be quashed and set aside. Learned Counsel also submitted that the defendant-respondent has filed the application under Order 8, Rule 8A of C.P.C. on 17.12.2015, which provision is not existing in C.P.C., since it has already been repealed. Learned Counsel also submitted that the defendant-respondent has filed the application under Order 8, Rule 8A of C.P.C. on 17.12.2015, which provision is not existing in C.P.C., since it has already been repealed. Learned Counsel further submitted that the case of the plaintiff-petitioner is that alleged signatures of Suraj Mai on affidavit dated 4.6.1999 are forged and fabricated, and to prove this fact, the petitioner filed the documents bearing original signatures of Late Shri Suraj Mai for the purpose of comparison but learned Trial Court rejected the plaintiff-petitioner's application merely on account of documents not filed prior to plaintiffs evidence, thus, the impugned orders are erroneous and perverse. 8. Learned Counsel for the respondents strongly opposed the arguments of learned Counsel for the petitioner and prayed to dismiss both the writ petitions, being devoid of substance. 9. Defendant Tej Karan filed an application on 17.12.2015 under Order 8, Rule 8A of C.P.C. Rule 8A was repealed by the legislature by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) with effect from 1.7.2002, much prior to filing of the application. But from the averments and prayer made in the application, it appears that the defendant Tej Karan filed the application for the relief which may be given under Order 8, Rule 1 A(3) of C.P.C. and the learned Trial Court has decided the application taking into consideration the provisions of Order 8, Rule 1A (3) of C.P.C. Mere mentioning of a wrong provision of law is of little consequence, because the learned Trial Court has exercised the powers available to it under Order 8, Rule 1A (3) of C.P.C. therefore, the impugned order dated 22.9.2016 does not become invalid, only on this ground. 10. This is not the case of the plaintiff-petitioner that the documents filed by the defendant Tej Karan with his application dated 17.12.2015, are not relevant to the dispute between the parties. Contention of the petitioner is that three documents filed by the defendant with the application are certified copies obtained from the Court much prior to filing of the application and if the same could not be traced before settlement of issues, he could obtain another certified copies from the Court, to be filed with the written statement. It is also stated that the affidavit of Suraj Mai dated 4.6.1999 appears to be forged and fabricated. It is also stated that the affidavit of Suraj Mai dated 4.6.1999 appears to be forged and fabricated. Learned Trial Court was of opinion that documents filed by the defendant with the application are public documents, the case is at the stage of defendant's evidence and the plaintiff has a right to cross examine the defendant regarding the documents produced by him and allowed the application of the defendant. The reasons assigned by the learned Trial Court in allowing the application are absolutely legal and justified and we find no force in the arguments of learned Counsel for the petitioner to interfere in the impugned order dated 22.9.2016 in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. 11. Now, we consider the impugned order dated 29.9.2016 passed on the application filed by the plaintiff-petitioner on 4.2.2016 for taking the documents on record annexed with the application. 12. Learned Counsel for the petitioner submitted that the plaintiff-petitioner and Late Suraj Mai used to jointly purchase shares of Unit Trust through the defendant Tej Karan, which were received at the address of petitioner, which fact appears from the documents mentioned at serial Nos. 1 to 5. Learned Counsel also submitted that the document mentioned at serial No. 6 in the application, is a document of partition took place between Late Shri Suraj Mai and his brother Keshri Lal in Samvat 2028 and document mentioned at serial No. 7 in the application, is Sale Deed dated 12.2.1982. Both the documents bear signatures of Late Shri Suraj Mai, therefore, these documents are necessary for comparison of the alleged signatures of Late Shri Suraj Mai on affidavit dated 4.6.1999 produced by defendant Tej Karan. Learned Counsel has also submitted that the documents filed by the petitioner with the application are necessary to bring the truth on record and will be helpful to the Court to do the justice. 13. On the other hand, learned Counsel for the respondents strongly opposed the arguments of learned Counsel for the petitioner submitting that the plaintiff-petitioner has filed the documents at the stage of defendant's evidence, therefore, defendant will not have opportunity to rebut the documents. The document mentioned at serial No. 6 is much old and it may be forged and fabricated and prayed to reject the petition being devoid of substance. 14. The document mentioned at serial No. 6 is much old and it may be forged and fabricated and prayed to reject the petition being devoid of substance. 14. Learned Trial Court dismissed the application of plaintiff-petitioner on the premise that documents mentioned at serial Nos. 1 to 5, do not bear signature of any person. It was also observed that the documents mentioned at serial Nos. 6 and 7 bear signatures of Suraj Mai, which ought to have been produced before recording of plaintiffs evidence, because the defendant may be prejudiced, if the documents are taken on record, as he will have no opportunity to cross examine the plaintiff regarding these documents and dismissed the application. 15. The suit filed by the plaintiff-petitioner is for declaration of he being an adopted son of Late Shri Suraj Mai and for decree of permanent injunction. An affidavit of Late Shri Suraj Mai dated 4.6.1999 was produced by the defendant-respondent, after completion of plaintiffs evidence. Contention of petitioner is that the affidavit is not signed by Late Shri Suraj Mai, as such it is a forged and fabricated document. The petitioner filed the documents mentioned at serial Nos. 6 and 7 pertaining to Samvat 2028 and year 1982 respectively, bearing signatures of Late Shri Suraj Mai, for comparison of alleged signatures of Suraj Mai on affidavit dated 4.6.1999. Documents mentioned at serial Nos. 1 to 5, though not signed by anyone, are also relevant to the dispute between the parties and the matter in issue, to be decided by the learned Trial Court. The endeavour should be to do real justice between the parties, rather than to dismiss any application on technical grounds. The Courts may award cost to the opposite party for the inconvenience, if any, caused to him due to late filing of an application but should not dismiss the application only on the ground of delay, if the documents are relevant to the controversy between the parties and no limitation is prescribed for filing of an application. 16. In view of the discussion made above, the application filed by the plaintiff-petitioner on 4.2.2016 for taking the documents on record, should have been allowed on payment of cost to the defendant-respondent for the inconvenience caused to him, due to delayed application. 16. In view of the discussion made above, the application filed by the plaintiff-petitioner on 4.2.2016 for taking the documents on record, should have been allowed on payment of cost to the defendant-respondent for the inconvenience caused to him, due to delayed application. After considering the totality of the facts and circumstances of the case, we are of the view that ends of justice will meet, in case the application of the plaintiff-petitioner dated 4.2.2016 tor taking the documents on record, is allowed on cost of Rs. 1,500/-. Consequently, the Writ Petition No. 14881/2016 is allowed and impugned order dated 29.9.2016 passed by the learned Trial Court, dismissing the application of plaintiff-petitioner dated 4.2.2016, is set aside and the document annexed with the application of plaintiff-petitioner, are ordered to be taken on record on payment of cost of Rs. 1,500/-. It is made clear that the payment of cost would be condition precedent. The Writ Petition Np. 14882/2016 is dismissed being devoid of substance. Petition No. 14881 of 2016/Petition No. 14882 of 2016 dismissed.