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2018 DIGILAW 1031 (HP)

Akshay Doegar v. Kanwar Vijay Singh

2018-05-31

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J The present application, under Order 8, Rule 1(3), read with Section 151 of the Code of Civil Procedure, has been maintained by the applicant-defendant, with a prayer that he may be permitted to place and prove on record the documents, filed with this application. As per the applicant, the present suit has been filed by the non-applicant/plaintiff on the allegations that on account of the litigation instituted by the applicant-defendant against him, he could not complete the construction of his building within time, which caused financial loss of rental income to him. It has also been alleged by the non-applicant that he suffered damage and loss of reputation due to litigation and time spent on defending cases and various cases were instituted against him with the only intention to harass him. It has been further averred in the application that the non-applicant/plaintiff has completed his evidence and now the case is fixed for the evidence of the applicant-defendant and the applicant-defendant in his evidence intends to prove the documents, which could not be placed on record at the time of filing of written statement, as these documents were not in existence at that time and have come in existence after the filing of the written statement. So, the present application may be allowed and the applicant-defendant may be permitted to place and prove the documents mentioned hereinbelow. The documents which the applicant intends to place and prove on record are as under: (a) Copy of Jamabandi with respect to the land comprised in Khata/Khatauni No. 116/144, Khasra No. 1290/983, measuring 173.40 sq. mts. In the ownership of Shri Akshay Doegar, situated at Mauza Up Mohal Chhota Shimla, Khas, Tehsil and District Shimla, H.P. for the year 2012-13. (b) Copy of Jamabandi for the year 2012-13, Khata/Khatauni No. 1/1, Khasra No. 1291/983, situated at Muza Up Mohal, Chhota Shimla Khas, Tehsil and District Shimla. (c) Copy of proceedings of 28th and 29th meeting of Single Umbrella Committee of Municipal Corporation, Shimla, dated 07.08.2013 and 09.07.2013. (d) Copy of letter No. MCS/AP/870/- 6811-12, dated 05.12.2013 from Commissioner, Municipal Corporation, Shimla to Secretary (T. & C.P.) to the Government of Himachal Pradesh, Shimla. (e) Copy of letter No. TCP-F(6)- 25/2014, dated 31.07.2014 from the Secretary (T & C.P.), Government of Himachal Pradesh to the Commissioner, Municipal Corporation, Shimla. 2. (d) Copy of letter No. MCS/AP/870/- 6811-12, dated 05.12.2013 from Commissioner, Municipal Corporation, Shimla to Secretary (T. & C.P.) to the Government of Himachal Pradesh, Shimla. (e) Copy of letter No. TCP-F(6)- 25/2014, dated 31.07.2014 from the Secretary (T & C.P.), Government of Himachal Pradesh to the Commissioner, Municipal Corporation, Shimla. 2. Reply to the application has been filed, wherein it has been averred that the documents sought to be placed on record were admittedly in existence and in the knowledge of the applicant prior to the evidence of the plaintiff, as the dates of the same vary from 2012 to 2014. The applicant purposely waited for closing of the evidence of non-applicant/plaintiff and thereafter with malafide intention, moved the present application. It has been further averred in the reply that if the said documents are permitted to be placed on record, the non-applicant/plaintiff will be highly prejudiced, so the present application may be dismissed. 3. Learned counsel for the applicant-defendant has argued that the application is to place on record the documents, which have come into existence after filing of the written statement and earlier the applicant was having no opportunity to produce these documents on record. Learned counsel for the applicant-defendant in support of his contentions placed strong reliance upon the decision rendered by a Coordinate Bench of this Court in Brahm Dass vs. Onkar Chand and another’s case. 4. On the other hand, learned Senior Counsel appearing on behalf of the non-applicant/plaintiff has argued that the suit has been filed for the action, which has accrued only upto the year 2006 and since the matter also stands adjudicated by the Division Bench of this Court with the observations that the applicant-defendant has dragged the non-applicant/plaintiff in unnecessary litigation, these documents cannot be allowed to be produced on record at this moment. He has further argued that the documents are irrelevant, as the damages are only claimed by the non-applicant/plaintiff upto the filing of the suit, so the present application deserves dismissal. 5. In rebuttal, learned counsel for the applicant-defendant has argued that as per the law laid down by this Hon’ble Court in Brahm Dass vs. Onkar Chand and another’s case, the present application deserves to be allowed and documents, as mentioned above are required to be placed on record. 6. 5. In rebuttal, learned counsel for the applicant-defendant has argued that as per the law laid down by this Hon’ble Court in Brahm Dass vs. Onkar Chand and another’s case, the present application deserves to be allowed and documents, as mentioned above are required to be placed on record. 6. To appreciate the arguments of learned counsel for the parties, this Court has gone though the records in detail. 7. The documents which the applicant-defendant wants to produced on record, are the documents, which came into existence after filing of the written statement. As per the learned counsel for the applicant-defendant by way of producing aforesaid documents, he wants to show that the building was not in a position to be used earlier. However, this aspect is disputed by the learned Senior Counsel appearing on behalf of the non-applicant/plaintiff and he pleaded that the damages are calculated, as the building was not allowed to be put to use and completed due to the acts of the applicant-defendant. 8. A Coordinate Bench of this Court in Brahm Dass vs. Onkar Chand and another, Latest HLJ 2009 (HP) 384 has held as under: “5. The documents are 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, however, the documents can be produced subsequently with the leave of the court. Whether the documents are relevant or not could not be decided at the stage of considering the application under order 7 Rule 4(3) of the Code of Civil Procedure and this question was to be determined at the stage of arguments. The learned trial Court has also misconstrued the judgment rendered by he Hon’ble Supreme court cited in the order. There is no specific bar to produce the documents at the stage of hearing with the leave of the court. The court endeavour must be to adjudicate the lis effectively and if certain documents could not be filed with the plaint until and unless serious prejudice is caused to the other side, the same must be permitted to be produced on record. The other party also gets an opportunity to rebut the evidence produced by the parties during the hearing. The court has to exercise the jurisdiction for the production of the documents liberally. The other party also gets an opportunity to rebut the evidence produced by the parties during the hearing. The court has to exercise the jurisdiction for the production of the documents liberally. It is settled principle that opportunity should be afforded to the parties to produce their evidence and state their case before the Court. The Court has to exercise the jurisdiction in favour of the production of the evidence instead of scuttling it. The courts should not permit the parties to indulge in dilatory tactics to stall the proceedings. The court has discretion and generally speaking it will be wise exercise of the discretion to permit the production of the evidence and the question to be decided in each case in the light of the particular circumstances.” 9. In view of the above discussion and the law cited hereinabove, this Court finds that the discretion to permit the production of the documents on record is required to be exercised in favour of the applicant-defendant to meet the ends of justice. Accordingly, the present application is allowed and the documents, the applicant-defendant wants to produce on record are permitted to be produced on record. The application stands disposed of.