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2016 DIGILAW 264 (UTT)

Amarnath Ahuja v. Praveen Ahuja

2016-06-23

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. By means of present writ petition, the petitioner seeks the following relief, among others:- “To issue a writ, order or direction in the nature of certiorari quashing the order dated 16.04.2016 passed by learned 4th Additional Civil Judge, Dehradun, in Original Suit No. 28 of 2015, Amarnath Ahuja vs. Praveen Ahuja and another and allow the application no. 64 C filed by the petitioner. ” 2. In a suit instituted by the petitioner against the respondents for eviction, an application under Order 7 Rule 14 along with Order 13 Rule 1 C.P.C., read with Section 151 C. P.C. was filed on behalf of the petitioner, as follows: “(I) That the document which are filed through separate list are the certified copy of assessment order of the firm of the plaintiff to which the plaintiff is the sole proprietor and also certified copy of meter sealing certificate, mutation order and certified copy of assessment and letter of PNB, Patel Nagar, Dehradun issued to the Director of Military, form and bill & receipts of tax and further correspondence viz. and certified issued in favour of the plaintiff’s firm and original death certificate of Smt. Sumitra Devi and certificate issued in favour of plaintiff which are necessary for the disposal of the case and were not with the plaintiff at the time of filling the suit and were filed in original in other suits. The certified copies of which were received by the plaintiff (of this case) during the pendency of the above suit from the counsel of the plaintiffs of other suit. (II) That the defendant totally denied the income/business of the plaintiff. To rebut the contention of the defendant, it is necessary for the plaintiff to file the document through list which are essential for the just decision of the case.” [Emphasis supplied with appropriate corrections] 3. Objections were filed on behalf of the respondents on the same. These objections find place as Annexure No. 7 to this writ petition. 4. After hearing both the sides, learned Trial Court dismissed the application. Hence the present writ petition. 5. Objections were filed on behalf of the respondents on the same. These objections find place as Annexure No. 7 to this writ petition. 4. After hearing both the sides, learned Trial Court dismissed the application. Hence the present writ petition. 5. It will be appropriate to reproduce herein the Scheme of Order 7 Rule 14 CPC and Order 13 Rule 1 of C.P.C. herein below for convenience:- “Order 7 Rule 14- Production of document on which plaintiff sues or relies.- (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is present by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. [(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff’s witnesses, or, handed over to the witness merely to refresh his memory.] [Order 8 Rule 1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.– (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall entere such document in a list, and shall produced it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. [(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.] (4) Nothing in this rule shall apply to documents – (a) produced for the cross-examination of the plaintiff’s witnesses, or (b) handed over to a witness merely to refresh his memory.] [Order 13 Rule 1 – Original documents to be produced at or before the settlement of issues.- (1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement. (2) the court shall receive the documents so produced : Provided that they are accompanied by an accurate list thereof prepared in such form as the High court directs. (3) Nothing in sub-rule (1) shall apply to documents- (a) provided for the cross-examination of the witnesses of the other party; or (b) handed over to a witness merely to refresh his memory.]” 6. A decision of this Court in Kumaon University vs. Harish Chandra Pandey & others, reported in 2014 (1) U.D. 334 would also be relevant for proper adjudication of the controversy in hand. The relevant paragraphs are being excerpted hereinunder:- “Bare perusal of Rule 14 Order 7 and Rule 1-A of Order 8 would go to demonstrate that after 1999 amendment w.e.f. 2002, parties to the suit shall file list of the documentary evidence alongwith their respective pleadings alongwith the copies of such documentary evidence. However, the reading of Order 13 Rule 1 would go to demonstrate that original documents, which were mentioned in the list and copies thereof were filed with the pleadings at the initial stage as per Rule 14 Order 7 and Rule 1-A of Order 8, shall be filed before the Trial Court on or before the framing of the issues. However, the reading of Order 13 Rule 1 would go to demonstrate that original documents, which were mentioned in the list and copies thereof were filed with the pleadings at the initial stage as per Rule 14 Order 7 and Rule 1-A of Order 8, shall be filed before the Trial Court on or before the framing of the issues. As per sub-rule 3 of Rule 14 of order 7 of the C.P.C. as well as sub-rule 3 of Rule 1-A of Order 8 of the C.P.C. party may file additional documentary evidence, which was not earlier filed and mentioned in the list filed alongwith the pleadings, with the leave of the Court at the subsequent stage of the suit. Party seeking leave of the court to place on record additional documentary evidence either under sub-rule 3 of Rule 14 of Order 7 or under sub-rule 3 of Rule 1-A of Order 8 C.P.C., as the case may be, must show to the Court as to why additional evidence sought to be filed was not placed on the record at the appropriate stage and as to why additional evidence is necessary for the fair adjudication of the case. The Court may grant leave, after having satisfied, to place on record additional evidence. Sub-rule 3(a) of Rule 1 of Order 13 provides that document which sought to be filed for the purpose of cross examination or for refreshing the memory of the witnesses, need not be filed on or before the framing of the issues. If proviso of Rule 4 of Order 18 is read alongwith provision of Rule 1 of order 13, it can very well be said that only such documents can be filed alongwith the affidavit of the witnesses which are for the refreshing the memory of the witness or for the purpose of the cross examination. However, all other documentary evidence must be mentioned in the list and copies thereof must be filed alongwith the pleadings as contemplated under Rule 14 of Order 7 and Rule 1-A of Order 8 C.P.C. and original thereof shall be placed on record on or before framing of issues as required by Order 13 Rule 1 C.P.C. As observed herein before, additional evidence may be filed only with the leave of the Court. In my humble opinion, there is no question of any implied leave to file additional documentary evidence. In my humble opinion, there is no question of any implied leave to file additional documentary evidence. Parties to the suit must apply under sub-rule 3 of Rule 14 of Order 7 or Rule 1-A of Rule 8 of the C.P.C. as the case may be. However, it is clarified that plaintiffs/respondents herein may move appropriate application under sub-rule (3) of Rule 14 of Order 7 C.P.C. seeking leave of the Trial court to place on record additional documentary evidence which are sought to be filed alongwith affidavit of PW3 and learned Trial Court after giving opportunity to the defendant/petitioner to file reply to that application shall pass appropriate orders thereon in accordance with law.” 7. It is the submission of learned counsel for the respondents that the petitioners have not assigned any reason as to why the documents were being filed at this stage? Why not along with the plaint? 8. On a perusal of annexure 2, a reference of which has already been given in one of the foregoing paragraph of this judgment, it reveals that the petitioner has furnished sufficient reasons to indicate as to why such documents were not filed by him earlier. 9. It is an admitted fact that the trial has not yet begun and issues have not yet been settled. 10. In view of the settled position of law, which, if applied to the facts of the present case, would amply demonstrate that the additional papers sought to be filed by the petitioners ought to have been permitted to be produced by the trial court for just decision of the case. These documents appear to be relevant for proper adjudication. 11. The court below has, therefore, committed an error in not permitting the petitioner to produce those documents. As a consequence thereof, the order impugned is set aside. 12. Writ Petition is, accordingly, allowed. No order as to costs.