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2016 DIGILAW 279 (RAJ)

Pawan Kumar v. Surja Ram

2016-02-18

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against order dated 30.01.2015 passed by the First Appellate Court, whereby, the application filed by the petitioner under Order 41, Rule 27 CPC has been rejected. 2. The petitioner filed a suit for permanent and mandatory injunction against the respondents; the suit was dismissed by the trial court. 3. Feeling aggrieved, the petitioner filed first appeal. 4. During the pendency of the appeal, the petitioner filed an application under Order 41, Rule 27 CPC, inter alia, seeking permission to produce certain documents pertaining to the criminal proceedings being FIR No. 56/2008, which resulted in F.R., its acceptance and statements of complainant under Section 161 Cr.P.C.; the petitioner also sought to produce three receipts dated 02.02.2015, 18.03.2015 and 24.06.2015. 5. The application was opposed by the respondents-defendants. 6. The First Appellate Court after hearing the parties, came to the conclusion that the petitioner could have produced the documents, which were in existence before the judgment was delivered by the trial court and there was no reasonable cause for not producing the said documents and, consequently, dismissed the application. 7. It is submitted by learned counsel for the petitioner that the First Appellate Court was not justified in rejecting the application as the documents were relevant and the petitioner was unaware of the F.R. submitted by the Police and the fact that the same was accepted by the criminal court; the FIR was already produced before the trial court and was exhibited and as in case of acceptance of F.R. no notice is issued to the petitioner, there was no reason for the petitioner being aware of the said documents and, therefore, the assumption on which, the trial court has rejected the application is baseless and, therefore, the order impugned deserves to be set aside. 8. Learned counsel for the respondents submitted that the petitioner has failed to indicate any reason in the application for the delay in production of the documents and, therefore, the First Appellate Court was justified in rejecting the application; it was submitted that for accepting the application it is prerequisite that petitioner should make out a case of due diligence and, in absence whereof, the application was rightly rejected by the First Appellate Court. 9. Reliance was placed on Govt. of Karnataka & Anr. 9. Reliance was placed on Govt. of Karnataka & Anr. v. K.C. Sumramanya & Ors., 2014(2) CCC 232 (SC), Manish v. Smt. Shanti Devi, 2015 (2) WLN 195 (Raj.), Sudesh (Smt.) & Anr. v. Amar Pal Singh & Ors., 2015 (1) WLN (Raj.) and Kanti & Ors. v. U.I.T., Bikaner & Ors., AIR 1998 Raj. 108 . 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. The documents sought to be produced by the petitioner in appeal are F.R. dated 21.06.2008, order accepting the F.R. dated 02.05.2015, material related to the said F.R. and the three receipts dated 02.05.2015, 18.03.2015 and 24.06.2015 after the judgment of the trial court dated 14.10.2015, whereby, the suit filed by the petitioner has been dismissed. 12. A look at the reply filed by the respondent would indicate that the entire plea raised pertained to the relevance of the documents and the fact that the documents were not produced during the pendency of the suit; nowhere the respondents have disputed the genuineness of the documents, which are sought to be produced by the petitioner; the submission of learned counsel for the petitioner has substance that an accused has no locus so far as acceptance of F.R. is concerned and, therefore, it cannot be presumed that the petitioner was aware of filing of the F.R. and its acceptance by the criminal court and, therefore, to that extent it cannot be said that the petitioner did not act with due diligence in approaching the Appellate Court by filing application under Order 41, Rule 27 CPC. 13. So far as receipts sought to be produced are concerned, the receipts are dated 02.05.2015, 18.03.2015 and 24.06.2015 and it cannot be said that the application made by the petitioner is belated to the extent that the same would entail dismissal of the application on such count. 14. 13. So far as receipts sought to be produced are concerned, the receipts are dated 02.05.2015, 18.03.2015 and 24.06.2015 and it cannot be said that the application made by the petitioner is belated to the extent that the same would entail dismissal of the application on such count. 14. So far as the submissions made by learned counsel for the respondents regarding the relevance of the documents in question are concerned, merely accepting the application under Order 41, Rule 27 CPC does not make the documents relevant; the Appellate Court is required to apply its mind regarding the relevance of the documents and come to a conclusion after hearing the parties after the application is accepted and even otherwise the Appellate Court has not said anything regarding the relevance of the documents. 15. The various judgments relied on by counsel for the petitioner has no application to the facts of the present case as the appellate court has rejected the application on wrong premise. 16. In view of the above discussion, the writ petition filed by the petitioner is allowed. The order dated 30.01.2015 passed by the First Appellate Court is set aside. The application filed by the petitioner under Order 41, Rule 27 CPC is allowed. The petitioner is permitted to produce the documents as additional evidence. No order as to costs.