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2016 DIGILAW 457 (HP)

Nirmal Singh v. Manohar Lal

2016-04-08

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. This petition under Article 227 of the Constitution of India is directed against the order passed by the learned Civil Judge (Senior Division), Nalagarh, on 23.05.2015 whereby the application filed by the petitioner for placing on record certain documents came to be dismissed. 2. The brief facts of the case are that plaintiffs-respondents No.1 and 2 (hereinafter referred to as the respondents) filed a suit against the defendant-petitioner (hereinafter referred to as the petitioner) for specific performance of the contract for execution of sale deed of suit property measuring 0 bigha 7 biswas, being 7/93 share out of total land measuring 4 bighas 13 biswas, bearing Khasra No.1246, comprised in Khata-Khatauni No.141/157, situated in the area of Bhogpur, Pargana Plassi, Tehsil Nalagarh, District Solan. 3. The suit was resisted by the petitioner by filing written statement wherein it was alleged that the agreement which though had been reduced into writing had been tampered with by the use of technology and thus was not enforceable. It was further alleged that the petitioner had appeared before the Sub Registrar, Nalagarh on 06.10.2008 for execution of the sale deed, but it was the respondents who failed to turn up and were thus not entitled to seek specific performance of the agreement. 4. During the pendency of the suit, the petitioner filed an application under Order 8, Rule 1 CPC seeking permission to produce on record the copy of the drawing of proposed house and average value thereof and to adduce additional evidence in support thereof. It was alleged that these documents could not be produced earlier due to sheer inadvertence and due to bona fide mistake and the same are necessary for the proper and effective adjudication of real controversy interse parties. It was also alleged that no prejudice would be caused to the opposite parties in case the documents are ordered to be brought on record as they would get full opportunity to cross-examine the petitioner in respect of these documents. 5. The respondents resisted the application by filing reply thereto wherein it was denied that the documents were material or in any manner relevant for deciding the real controversy between the parties. It was averred that they had filed a suit for specific performance of the contract based on agreement which had not been disputed even by the petitioner. 5. The respondents resisted the application by filing reply thereto wherein it was denied that the documents were material or in any manner relevant for deciding the real controversy between the parties. It was averred that they had filed a suit for specific performance of the contract based on agreement which had not been disputed even by the petitioner. The only dispute between the parties was with respect to the remaining payment during the subsistence of the agreement. It was further averred that the petitioner in the written statement had admitted the receipt of Rs. 4,00,000/- towards sale consideration at the time of execution of the agreement dated 07.02.2008 and it is only the sale consideration subsequently paid by the respondents that has been disputed by the petitioner. In such circumstances, the site plan of the building had no relevance with the controversy in dispute between the parties and moreover the evidence of the petitioner, who is defendant in the case, had already been closed on 13.12.2011 and this application has been filed when the case has been posted for arguments for the last one and half years. 6. The learned trial Court considered the application and dismissed the same by concluding that once the agreement of sale dated 07.02.2008 and the consideration settled therein are not disputed and the only dispute between the parties is with respect to the remaining amount during the subsistence of the agreement, then it can safely be concluded that the site plan of the building and value thereof have no relevancy with the matter in dispute between the parties. It was further held that the documents now sought to be produced on record were already in the knowledge of the petitioner when he came to adduce his evidence which came to be closed on 13.12.2011 and, therefore, the application now filed lacked bonafides and the application had only been moved to delay the disposal of the suit. I have heard the learned counsel for the parties and have gone through the records of the case. 7. I have heard the learned counsel for the parties and have gone through the records of the case. 7. It is vehemently argued by Shri Suneel Awasthi, Advocate that the learned Court below has erred in dismissing the application in a casual and routine manner and has further failed to appreciate the fact that the documents are necessary in order to adjudicate the real controversy between the parties and that the same could not be produced in spite of due diligence. He would further argue that no pre-judice would be caused to the respondents in case these documents are ordered to be brought on record. 8. On the other hand, Shri Sanjeev Kuthiala, Advocate, has vehemently argued that this petition is nothing but an abuse of the process of Court. According to him, the petitioner had closed his evidence on 13.12.2011 and the case had been posted for arguments for the last one and half years and the application, at this stage, was filed with the sole object to delay the disposal of the suit. 9. It would be evident from the impugned order that cogent reasons have been given by the learned Court below for dismissing the application and I only need refer to para-5 of the impugned order which reads thus:- "5. The suit is based on agreement to sell dated 7.2.2008 and defendant No.1 has not disputed the execution of agreement dated 7.2.2008 and the consideration settled between the parties and the dispute between the parties is with respect to the payment of remaining amount during the subsistence of the agreement. If to go by aforesaid facet of this case, it can be safely said that the site plan of the building and value thereof have no relevancy with the matter in dispute between the parties. Even otherwise also, these things were already in the knowledge of defendant No.1 when he came to adduce evidence and defendants evidence came to be closed on 13.12.2011 and thereafter, on the basis of this application, it cannot be said that defendant No.1 has failed to produce on record aforesaid documents and to adduce additional evidence thereof, despite due diligence, ignoring the fact that these documents have no bearing on the actual matter in controversy. Even if defendant No.1 is permitted to produce on record aforesaid documents, it will not suffice any purpose, rather it will delay the disposal of the case. If the relevancy of the documents sought to be produced on record is ignored, even then application cannot be held to be maintainable as defendant No.1 has not exercised any due diligence when evidence came to be adduced in respect of this case." 10. No exception can be taken to the order passed by the learned Court below as it was incumbent upon the petitioner to have satisfied the Court below on the following aspects:- (i) How site plan of the building and value thereof were necessary for the just and proper decision of the case. (ii) What prevented the petitioner from placing these documents at the stage when he was leading his evidence. (iii) Why the petitioner waited for years together to move this application, particularly, when his evidence came to be closed on 13.12.2011. 11. Having failed to satisfy the learned Court on all these aspects, the petitioner cannot now find fault with the impugned order passed by the learned Court below. There is no illegality or impropriety in the order as the same has been passed in accordance with law. Reluctantly, there is no merit in this petition and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of. Interim order dated 04.09.2015 is vacated. 12. However, before parting, I find it intriguing that though the evidence of the petitioner has been closed on 13.12.2011, yet final decision in the case is not forthcoming. It is also evident from the impugned order that the case is being posted for arguments for the last one and half years. This indeed is a serious matter. Taking into consideration, the entire facts and circumstances of the case, the learned trial Court is directed to decide the case as expeditiously as possible and in no event later than 30th June, 2016.