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2017 DIGILAW 1355 (HP)

Vidya Dutt v. Bhadri Devi (died) Through Lrs

2017-12-07

VIVEK SINGH THAKUR

body2017
JUDGMENT Vivek Singh Thakur, J. (Oral) - This petition has been filed against impugned order dated 27.4.2016 passed by learned Civil Judge (Junior Division), Rajgarh Camp at Sarahan District Sirmaur (H.P.), whereby application preferred by the plaintiff under Order 7, Rule 14 read with Section 151 C.P.C. seeking permission to produce and place certain documents on record has been rejected. 2. I have heard learned counsel for the parties and have also gone through the record placed on record. 3. The applicant/plaintiff has filed a suit for declaration with consequential relief of permanent prohibitory injunction, assailing the mutation for inheritance of property of one Shri Tula Ram in favour of defendant No.1 Bhadri Devi (now deceased) on the ground that said defendant had customary divorce from her husband late Shri Tula Ram on 26.1.1986 as per Reet prevalent in the ilaqua and Biradari and had parted with said Tula Ram forever. 4. The evidence of plaintiff was closed on 18.12.2015. Where after the suit was fixed for evidence of defendants on 12.1.2016 on which date for want of steps for defendants'' evidence, it could not be recorded and case was adjourned for 18.1.2016. On that day, affidavits of D.Ws Amar Singh and Bawa Chand in examination-in-chief of defendants'' evidence were filed. But they were not cross examined and an application under Order 7, Rule 14, C.P.C was filed on behalf of the plaintiff for seeking permission to place following certain documents on record:- (i) Admission record of Ms. Laxmi. (ii) Birth certificate of Ms. Laxmi. (iii) Admission record of Ms. Hem Lata. (iv) Birth Certificate of Ms. Hem Lata. (v) Admission record of Shri Inder Singh. (vi) Birth certificate of Shri Inder Singh. (vii) Admission record of Ms. Babli. (viii) Birth certificate of Ms. Babli. (ix) Admission record of Shri Kamal. (x) Birth certificate of Shri Kamal. (xi) Admission record of Shri Dunni Chand. (xii) Birth certificate of Shri Dunni Chand. (xiii) Copy of Parivar Register. (xiv) Another copy of Parivar Register. 5. Reply to application under Order 7, Rule 14, C.P.C. was filed on 13.4.2016 and vide impugned order dated 27.4.2016, this application preferred on behalf of the plaintiff was dismissed. 6. (xi) Admission record of Shri Dunni Chand. (xii) Birth certificate of Shri Dunni Chand. (xiii) Copy of Parivar Register. (xiv) Another copy of Parivar Register. 5. Reply to application under Order 7, Rule 14, C.P.C. was filed on 13.4.2016 and vide impugned order dated 27.4.2016, this application preferred on behalf of the plaintiff was dismissed. 6. It is undisputed fact that at the time of starting of evidence of plaintiff, defendant Bhadri Devi was alive but before closing of evidence of plaintiff, she had expired on 19.6.2012 and after her death, an application for deletion of her name was filed. It was stated in said application that deceased defendant had begotten six sons/daughters mentioned in said application but having no concern with the property in suit being not children of late Shri Tula Ram. The said application was contested by other defendants and relying upon reference of children of deceased defendant No. 1 Bhadri Devi in the said application, these wards of deceased defendant No.1 were directed to be brought on record as defendants and the application was dismissed and plaintiff was directed to furnish correct address of these sons and daughter of deceased Bhadri Devi. Thereafter, remaining evidence of the plaintiff was completed on 18.12.2015. 7. It is stated in application that documents proposed to be brought on record were not in possession of plaintiff, and during life time of defendant No.1, there was no necessity to place these documents on record which are related to parentage of sons and daughters of deceased Bhadri Devi, who were not party to suit prior to her death. It is also averred that documents sought to be produced are part of public/official record, not likely to be tampered and evidence of the defendants has not yet started and defendants will get the chance to cross examine the witnesses. 8. Learned counsel for the petitioner has relied upon the judgement of this Court in case Balwant Kumar and another vs. Kailash Behl and another AIR 2003 HP 48 to counter the findings of the trial Court with regard to relevancy of documents sought to be placed on record with submission that relevancy of documents is to be considered only after permission to produce and prove those documents on record in accordance with law. 9. 9. Contesting this application, the respondents/defendants had filed reply to application on 13.4.2016, specifically denying the second marriage of deceased Bhadri Devi and stating that alleged record was already on record of the suit and application was opposed for being filed at the belated stage and non-production of documents by plaintiff despite having sufficient time to do so. 10. Plea of the respondents/defendants is that these documents are not sufficient to prove the customary divorce and plea of customary divorce was taken in plaint itself for which the plaintiff should have led evidence within reasonable period granted to him and thus now the plaintiff cannot be permitted to re-open his evidence under the garb of proving and placing these documents on record at this stage. 11. The respondents have also relied upon judgement pronounced by the Apex Court in Bagai Construction (through its Proprietor Lalit Bagai vs. Gupta Building Material Store, (2013) 14 SCC 1 wherein the Apex Court had rejected the application of plaintiff filed at the belated stage. 12. After giving consideration to the arguments addressed by learned counsel for the parties and the case law referred in support thereto, I find that reasons for which the application was rejected by the Apex Court in Bagai construction''s case were distinguishable to the facts of the present case. In Bagai''s case, it is specifically mentioned that plaintiff had already mentioned the bills in the statement of accounts, but had not produced the original bills till the date of filing of application, for the reasons best known to the plaintiff despite having exclusive possession of those bills and application was filed after conclusion of evidence of both the parties at the stage of final arguments. It has been held by the Apex Court that application(s) for adjournment, re-opening and recalling are interim measures should as far as possible be avoided and only in compelling and acceptable reasons, such applications are to be considered. It has also been observed by the Apex Court that final arguments were heard on number of times and judgement . was reserved and only thereafter in order to improve its case the plaintiff came forward with such an application to avoid the final judgement against it. It has also been observed by the Apex Court that final arguments were heard on number of times and judgement . was reserved and only thereafter in order to improve its case the plaintiff came forward with such an application to avoid the final judgement against it. But facts in present case are entirely different as the defendants'' evidence is yet at the initial stage and only affidavits of two defendants'' witnesses in examination in chief have been filed, who are yet to be cross examined. Plaintiff''s evidence was closed on 18.12.2015 and thereafter on the date when affidavits in examination in chief of defendants'' witnesses were being filed, an application under Order 7, Rule 14 C.P.C. was moved by the plaintiff. Therefore, bonafide of the plaintiff in present case is not under doubt and it is not a case where documents were in possession of the plaintiff at the time of filing of written statement, or question of inheritance by the wards of deceased defendant No.1 Bhadri Devi had arisen at that time. It is only after death of deceased defendant No. 1 and arraying her wards as defendants in the main suit, occasion has arisen to place on record the parentage of these newly added defendants, which may have bearing on their claim in property in dispute. Moreover the trial Court has not rejected application of plaintiff for delay but holding that these documents do not necessary as for fact, sought to be proved with documents from Serial No. (i) to (xii) evidence of Parivar Register as Ext.PD and Ext.PY is already on record and documents at serial numbers xiii and xiv are not having any bearing on list as none of these documents proves customary divorce in the concerned area. 13. With help of documents proposed to be placed on record, existence of certain fact in issue has been sought to be proved. However, the trial Court has rejected prayer to lead evidence for availability of other evidence on record, despite itself having observed that it is fundamental principle that the parties should be permitted to let in all possible evidence which are relevant for the purpose of adjudicating the matters in controversy before the Court. The trial Court has also ignored variance in evidentiary value of different documents. The trial Court has also ignored variance in evidentiary value of different documents. Provative value of Birth Certificate issued under Death and Birth Registration Act and school admission record is definitely higher than Parivar Register. Therefore, documents (i) to (xii) should have been permitted to be placed on record. At the same time, it cannot be held at this stage that copies of Parivar Register at Sr. No. (xiii) and (xiv) will not have bearing on list as these documents may have corroborative value which is to be evaluated by the trial Court at appropriate stage. 14. Further by way of this application, the plaintiff has sought only production of certain documents on record and therefore, at the time of allowing the plaintiff to produce these documents on record, the only evidence to produce and prove these documents can be permitted to be led by the plaintiff and definitely plaintiff cannot re-open his evidence under the garb of production of these documents. 15. In view of above discussion, present petition is allowed and impugned order dated 27.4.2016 is set aside. Application of plaintiff under Order 7, Rule 14 C.P.C. is allowed in terms of this order. 16. It is also submitted on behalf of petitioner/plaintiff that only two witnesses on the basis of official record, are to be examined. Hence petitioner/plaintiff is permitted to produce those documents on record by leading evidence at the most in two dates, after presence before the trial Court but after 28th February, 2018. It is made clear that after 28th February, 2018 no further opportunity to lead any evidence shall be granted to the plaintiff to produce documents in question and also the evidence of the plaintiff shall be confined only to produce and prove these documents only. It is informed that suit is pending before learned Civil Judge (Junior Division), Rajgarh camp at Sarahan, District Sirmaur (H.P.) and now next visit of learned Civil Judge (Junior Division), Rajgarh will be in the month of January, 2018. Therefore, parties are directed to appear before learned Civil Judge (Junior Division), Rajgarh at Rajgarh on 21.12.2017. Record be sent back to the trial Court immediately.