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2017 DIGILAW 321 (RAJ)

Ramakant Modi v. Girdhari Sarawagi Mahajan

2017-01-27

VEERENDR SINGH SIRADHANA

body2017
JUDGMENT ORDER Veerendr Singh Siradhana, J. - The matter comes up in an interim application number 3116 of 2017, with a prayer for vacation of the ex-parte interim order dated 22nd September, 2013. However, in view of the fact that the controversy is within a narrow compass; the matter was taken up for final adjudication, at this stage, with the consent of the counsel for the parties. 2. Heard learned counsel for the parties. 3. The essential material facts necessary for appreciation of the controversy are that the plaintiff/respondents instituted the suit proceedings for declaration and cancellation of sale deed dated 24th July, 2006, while praying for possession and damages along with permanent injunction. The petitioner/defendants (for short "petitioners"), submitted their written statement on 10th August, 2009, resisting the claim of the plaintiffs/respondents with the statement that the sale deed dated 9th December, 1959, is a forged document on the basis of which suit proceedings have been instituted while seeking a declaration and cancellation of the sale deed dated 24th July, 2006. It is not in disputed that an application under Order 8, Rule 1-A(3) of the Code of Civil Procedure, 1908 (for short "CPC"), was instituted by the petitioners on 9th March, 2016, with a prayer to take on record certain documents to be received in evidence. The application was resisted by the plaintiff/respondents, which has been declined vide impugned order dated 4th August, 2016, of which the petitioners are aggrieved of. 4. Learned counsel for the petitioners, reiterating the pleaded facts and grounds of the memo of the writ application, asserted that in the written statement, the petitioners have specifically denied the averments of the plaint stating that the so-called sale deed dated 9th December, 1959, could not have been executed by Tara Devi as a widow affixing her thumb impression for her husband (Srilal), was very much alive. Further, Tara Devi was not an illiterate lady and used to affix her signatures, and therefore, the sale deed dated 9th December, 1959, is a false and fabricated document. 5. Referring to the contents of the application under Order 8, Rule 1-A(3) of CPC, learned counsel for the petitioners contended that Pawan Kumar is son of Tara Devi, who furnished the relevant information and documents, which were sought to be brought on record by the petitioners through the application, which has been declined. 5. Referring to the contents of the application under Order 8, Rule 1-A(3) of CPC, learned counsel for the petitioners contended that Pawan Kumar is son of Tara Devi, who furnished the relevant information and documents, which were sought to be brought on record by the petitioners through the application, which has been declined. In order to substantiate his stand, a reference has been made to a document reflecting signature of Tara Devi (Annexure- 5). 6. Learned counsel has also referred to an adoption deed, which has been placed on record as Annexure-6, from where it is reflected that Pawan Kumar son of Tara Devi, has gone into adoption to Rameshwar Lal, father of Tara Devi, i.e. grandfather (maternal) of Pawan Kumar. The adoption deed appears to have been executed on 13th December, 1962. Permanent Account Number (PAN) of Pawan Kumar reflects his date of birth as 15th December, 1960. Thus, in the backdrop of the documents aforesaid, learned counsel for the petitioners would submit that Tara Devi, was not a widow on 9th December, 1959, as the son - Pawan Kumar, was born to her on 15th December, 1960. 7. Delay in institution of the application is sought to be explained with the statement that these documents, which are sought to be brought on record were not in the power and possession of the petitioners as they were made available by none else but Pawan Kumar son of Tara Devi. In support of his submissions, learned counsel has relied upon the opinion of this Court in the case of Madan Lal and Anr. vs. Rent Tribunal, Alwar and Anr.: 2006 (2) DNJ (Raj.) 820, and in the case of Moti Lal vs. Lrs of Gullu Khan and Ors.: 2010 WLC (Raj.) UC 232. 8. Per contra; Mr. Rahul Kamwar resisting the prayer while supporting the impugned order dated 4th August, 2016, would submit that the Court below committed no illegality much less gross illegality while declining the application preferred by the petitioners, that was instituted after an inordinate, unexplained and huge delay of seven years. 9. Referring to the prayer clause of the plaint, it is contended that in the prayer clause, the petitioners have prayed for only dismissal of the suit and there is no counter-claim as such, therefore, the Court below committed no illegality in declining the application. 9. Referring to the prayer clause of the plaint, it is contended that in the prayer clause, the petitioners have prayed for only dismissal of the suit and there is no counter-claim as such, therefore, the Court below committed no illegality in declining the application. It is further asserted that no issue has been framed as to the genuineness of sale deed dated 9th December, 1959. Moreover, any amount of evidence in absence of pleadings, is of no consequence. The application instituted and declined, is yet another attempt to delay the proceedings. In support of his stand, learned counsel has relied upon the opinion of a Coordinate Bench of this Court at Principal Seat, Jodhpur, in the case of Satish Gaggar vs. Satya Prakash and Ors.: S.B. Civil Writ Petition Number 11846 of 2015, decided on 26th November 2015. A reference has also been made to the opinion of this Court in the case of Narayan vs. Ram Sahai and Ors.: S.B. Civil Writ Petition No.10843 of 2015, decided on 1st December, 2015, as well as the case of Bachhaj Nahar vs. Nilima Mandal and Anr.: (2008) 17 SCC 491 . 10. I have heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 11. From the materials available on record as referred to and relied upon by the learned counsel for the petitioners, a glance of the contents of para 2 of the written statement would reveal that there is a specific pleading as to the fact that Tara Devi was not a widow at the time of execution of the alleged sale deed dated 9th December, 1959, and therefore, the sale deed appears to be a false and fabricated document. There is also a specific statement to the effect that Tara Devi used to affix her signatures and not a thumb impression. Moreover, no women whose husband is alive would depose herself to be a widow. From the contents of the application seeking leave of the Court to bring on record, the documents in evidence, as contemplated under Order 8, Rule 1- A(3) of CPC, it is evident that these documents were made available to the petitioners by Pawan Kumar son of Tara Devi. From the contents of the application seeking leave of the Court to bring on record, the documents in evidence, as contemplated under Order 8, Rule 1- A(3) of CPC, it is evident that these documents were made available to the petitioners by Pawan Kumar son of Tara Devi. Possession of these documents by Pawan Kumar in natural course of factual matrix obtaining, in the instant case at hand, appears to be natural. 12. In the case of Madan Lal and Anr. (supra), a Coordinate Bench of this Court while considering the scope of Order 8, Rule 1-A(3) of CPC observed that the documents which form the basis of defence are to be filed along with the written statement and subrule (3) entrusts the Court with the power to grant leave for production of documents, which ought to have been produced in Court by the defendant, but is not so produced. At this juncture, it will be relevant to consider the text of Order 8, Rule 1-A(3) of CPC, which reads thus: "Order VIII 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 counterclaim, he shall enter such document in a list, and shall produce 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 filled 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. (3) A document which sought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, 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." 13. (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." 13. From a glance of the contents of the writ application and the documents annexed thereto more, particularly the application under Order 8, Rule 1-A(3) read with section 151 CPC and other documents in support thereof, would reveal that those documents are relevant with the pleadings under paragraph 2 of the written statement. 14. In the case of Moti Lal (supra), another Coordinate Bench of this Court at Principal Seat, Jodhpur, taking note of the observations made by the Apex Court of the land in the case of Anil Behari Ghosh vs. Smt. Latika Bala Dassi and Ors.: AIR 1955 SC 566 , held that even the judgment of a criminal Court is not altogether irrelevant even though having a limited relevance would be admissible in evidence and an order on an application that was granted under Order 8, Rule 1-A(3) of CPC, would not be erroneous. 15. In the case of Bachhaj Nahar (supra), the Apex Court of the land examined the controversy in the backdrop of the singular facts where the scope of the second appeal was an issue and the ratio is where neither party puts forth a contention, the Court cannot obviously make out such a case not pleaded, suo-moto. From the factual matrix as operating in the instant case at hand, the pleadings with reference to false and fabrication of the document (sale deed) dated 9th December, 1959, are very much in existence on record. Moreover, the paragraph referred to and relied upon by the learned counsel for the plaintiff/respondents while resisting the writ application is with reference to the relief(s). 16. In the case of Narayan (supra), a Coordinate Bench of this Court while observing as to the scope of Article 227 of the Constitution of India in the backdrop of the factual matrix wherein application under Order 8, Rule 1-A(3) of CPC was instituted to bring on record certain judgments passed in disputes between the plaintiffs and defendant by the revenue Courts. Thus, the factual matrix is entirely different and distinguishable. Hence, the opinion has no application to the facts of the case at hand. 17. Thus, the factual matrix is entirely different and distinguishable. Hence, the opinion has no application to the facts of the case at hand. 17. In the case of Satish Gaggar (supra), the observations were made by the Coordinate Bench of this Court in the factual matrix wherein certified copies of the statements of father of respondent/plaintiff recorded in suit, were sought to be brought on record in the factual matrix where in the petitioner''s own admission, the application was filed when the suit was posted for final arguments wherein he has placed on record the copy of the plaint, written statement as well as judgment but did not furnish any reason for not placing on record the statements of father of the respondent. Thus, the opinion is absolutely in the backdrop of entirely different and distinguishable facts. 18. For the reasons and discussions aforesaid, the writ application succeeds and hereby allowed. 19. Impugned order dated 4th August, 2016, is quashed and set aside. 20. The trial Court is directed to take on record the documents annexed with the application under Order 8, Rule 1-A(3) of CPC. 21. No costs.