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2016 DIGILAW 2536 (HP)

Piar Chand v. Deepika

2016-12-02

SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. The plaintiff (petitioner herein), claiming himself to be owner, filed a suit for declaration, challenging revenue entries recorded to the contrary, in favour of defendants No. 1 to 3 (respondents No. 1 to 3 herein) to be null and void as also entry of date of birth of defendant No. 3, in the record maintained by the school, to be illegal. 2. The contesting defendants resisted the suit inter alia claiming themselves to have perfected the title by way of statutory provisions. 3. Based on the pleadings of the parties, trial court framed several issues, including the one relating to the said entry of date of birth. 4. It is a matter of record that for establishing the factum of incorrect entry pertaining to the date of birth of defendant No. 3, plaintiff did not place any material, worthy of credence, along with the plaint. It is also a matter of record that for establishing such fact, plaintiff filed an application seeking permission to place on record birth certificate, which came to be dismissed by the trial Court vide order dated 9.8.2011, passed in CMA No. 138/11 (Civil Suit No. 78/98/96), titled as Piar Chand vs. Deepika & others, operative portion whereof, reads as under: “4. Perusal of the case file reveals that the photocopy of certificate of Sh. Vivek Mahajan (matriculation certificate) placed on record. Mere placing on record the photocopy of document cannot be held as perse admissible unless it is upon the applicant to show under which provision of law, it is perse admissible. Perusal of the case file reveals that the suit has been filed in the year 1996, more than fifteen years already stand lapsed. Perusal of the plaint reveals that it is within the knowledge of applicant to prove the said document being photocopy placed on record and the fate of the case is depend upon it. Applicant fails to show any “due diligence” upon his part. As per law laid down in a case titled as Madan Mohan Singh & Ors. vs. Rajni Kant & Anr. Applicant fails to show any “due diligence” upon his part. As per law laid down in a case titled as Madan Mohan Singh & Ors. vs. Rajni Kant & Anr. reported in 2010 (3) APEX COURT JUDGMENTS 196 (S.C.) “If a person wants to rely on a particular date of birth and wants to press document in service, he has to prove its authenticity in terms of S. 32(5) of Evidence Act, by examining the person having special means of knowledge, authenticity of date, time etc. mentioned therein”. 5. Applying the ratio of this citation, by no stretch of imagination it be held that the photocopy of document is perse admissible and this court to exhibit in the statement of counsel. 6. In view of discussion above, application is not sustainable as applicant fails to show any due diligence on his part as well as photocopy of matriculation certificate cannot be tendered in the deposition being perse admissible. There is no force in the application accordingly, it is rejected. Application, after registration and its due completion be tagged with main case file.” Significantly this order has attained finality. 5. It is a matter of record that though the suit came to be disposed of in terms of judgment dated 31.12.2007, but it stood remanded back to the trial Court and at that stage, plaintiff again filed a similar application, seeking permission to place on record certified copy of the birth certificate so obtained under the provisions of the Right to Information Act, 2005. 6. It is this application which stands dismissed in terms of impugned order dated 17.11.2012, passed by Civil Judge, (Jr. Divn.), Chamba, in Civil Suit No. 78/98/1996, titled as Piar Chand vs. Deepika & others (Annexure P-9). 7. Bare reading of the impugned order is reflective of the fact that not only has the trial Court appreciated the statutory provisions but correctly applied the same to the attending fact situation. 8. Perusal of the application in question only reveals that plaintiff was fully aware of the date of birth of defendant No. 3. Birth certificate is a public document and could have been obtained or proved, without any difficulty, at the first opportune time. In any event, between the dismissal of the first application and passing of the impugned order, no new fact has emerged. Obtaining a certified copy is not a discovery of a new fact. Birth certificate is a public document and could have been obtained or proved, without any difficulty, at the first opportune time. In any event, between the dismissal of the first application and passing of the impugned order, no new fact has emerged. Obtaining a certified copy is not a discovery of a new fact. The earlier application came to be dismissed not only for the reason that plaintiff had placed photocopy of the document but also for the reason that he had failed to exhibit exercise of due diligence, explaining the delay, in placing the document on record. 9. Even in the instant application, plaintiff has, prima facie, failed to establish as to why such document never came to be filed in the Court alongwith the plaint. Also no steps for summoning the record at the time of trial were ever taken by him. 10. It cannot be said that in the passing of impugned order, trial Court has either exceeded or failed to correctly and appropriately exercise jurisdiction so vested in it, warranting interference by this Court in a petition of the nature so filed by him, scope of interference with which, elaborately stands discussed in Shalini Shyam Shetty & another vs. Rajendra Shankar Patil, (2010) 8 SCC 329 and Jai Singh & others vs. Municipal Corporation of Delhi & another, (2010) 9 SCC 385 , so referred to and relied upon by Sh. Ramakant Sharma, learned Senior Counsel. 11. In fact, parties have been litigating since the year 1996 and the first attempt to place on record the said document was made only in the year 2011. It is not that plaintiff is an illiterate rustic person, having no access to justice delivery system. It is also not that he was misguided or was under some misconception of law or fact. It is also not that he belongs to the lowest strata of the society, which prevented him from taking steps at the earliest. Also issues can be decided on the basis of evidence already led by the parties. 12. It is also not that he was misguided or was under some misconception of law or fact. It is also not that he belongs to the lowest strata of the society, which prevented him from taking steps at the earliest. Also issues can be decided on the basis of evidence already led by the parties. 12. It is not the law that under no circumstance document can be taken on record, but then it has to be with the leave of the Court, exercise of which, in any case has to be within the settled parameters of law and unexplained delay, lack of due diligence and furnishing inadequate explanation, inter alia being certain factors not warranting favourable exercise thereof. Prejudice, if at all, is to be shown by the plaintiff and not the defendant for the statutory provisions under Order VII Rule 14 CPC, mandates plaintiff to prepare a list and produce all documents with the plaint. Now in the instant case, what prevented the plaintiff to do so and wake up from deep slumber after more than 15 years remains unexplained. 13. There is yet another reason for dismissing the plaintiff’s application and that being, finality attached to the earlier order. 14. In support of the petition, reliance is sought on the decision rendered by this Court in Braham Dass vs. Onkar Chand & another, 2009 (1) Shim. L.C. 339. The said decision stands rendered in the given facts and circumstances, where the case was still at the stage of trial. To the similar effect, is the decision rendered by Hon’ble the apex Court in Kapil Kumar Sharma vs. Lalit Kumar Sharma & another, (2013) 14 SCC 612. In view of the aforesaid discussions, present petition, devoid of any merit is dismissed. Pending applications, if any, also stands disposed of accordingly.