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2018 DIGILAW 1125 (JHR)

Lakshmi Narayan Bhagat v. Gayatri Devi

2018-05-15

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. – The petitioner, who is appellant in Title Appeal No.24 of 2001, is aggrieved of orders dated 10.07.2006, 27.07.2006 and 29.08.2006. 2. Briefly stated, initially Title Suit No.111 of 1985 was instituted for specific performance of the agreement to sale dated 14.10.1983. The suit was admitted and transferred to the Charge Officer. The suit was dismissed vide order dated 28.04.1987 against which an application was filed before Commissioner, Santhal Pargana Division, Dumka which was registered as Title Suit No.09 of 1987. This application was allowed and the matter was remitted back to the Charge Officer, whereupon it was renumbered as Title Suit No.07 of 1991. On remand, this suit was again dismissed against which the petitioner has preferred Title Appeal No.24 of 2001. During pendency of this suit when the defendant disputed execution of agreement to sale and pleaded that the suit property was already sold by a registered sale-deed dated 24.04.1986, for examination of his signature on the agreement by an expert an application was filed by the plaintiff. However, before the expert could send the report plaintiff''s evidence was closed, but before final judgment in Title Suit No.07 of 1991 was delivered the expert had sent a report dated 11.02.1996 to the court. In the pending appeal the appellant filed an application under Order XLI Rule 27 CPC for exhibiting the said report and by an order dated 27.08.2003 this application was allowed and the expert''s report was marked as Exhibit-X on payment of cost of Rs.3000/-. This order was challenged by the defendant in W.P.(C) No.6139 of 2003, however, without success; the writ petition was dismissed by an order dated 13.02.2004. Thereafter, the appellant filed an application on 22.04.2006 for marking the said report of the expert as one of his documents vide Exhibit-19. When this application was dismissed the appellant filed an application allegedly seeking clarification on this issue and when that application was dismissed, he filed an application under Rule 245 of the Civil Court Rules for marking Exhibit-X as plaintiff''s document vide Exhibit-19. By an order dated 29.08.2006 the application under Rule 245 of the Civil Court Rules has been dismissed. 3. By an order dated 29.08.2006 the application under Rule 245 of the Civil Court Rules has been dismissed. 3. Contention raised on behalf of the petitioner is that once the expert''s report has been marked as Exhibit-X for identification this report needs to be marked as plaintiff''s document, for it was obtained at the instance of the plaintiff. 4. As against the above, Sri Sanjay Kumar Sinha, the learned counsel for the respondents submits that previously two similar applications were dismissed by the court vide orders dated 10.07.2006 and 27.07.2006 and while so, a fresh application purportedly under Rule 245 of the Civil Court Rules was not maintainable and it has rightly been dismissed by the trial judge. 5. Rule 245 of the Civil Court Rules of the High Court of Judicature at Patna reads as under: 245. Documents admitted in evidence shall be marked with figures 1,2,3, etc., and capital letters A,B,C, etc., accordingly as they are admitted on behalf of the plaintiffs or defendants and separate lists of such documents in Form No.(J)11 shall be prepared by the Bench Clerk which will be signed by the Presiding Judge. The entries in these lists shall be made day by day. 6. A glance at Rule 245 of the Civil Court Rules would indicate that it merely provides a procedure for marking documents of the parties to the suit by assigning numbers in seriatum to those documents. Obviously, this rule does not confer a right in the plaintiff to seek marking of one of the court''s documents as his document. During pendency of Title Suit No.07 of 1991 the expert''s report was kept in the court''s custody and it was marked as Exhibit-X in Title Appeal No.24 of 2001 on an application filed under Order XLI Rule 27 CPC by the appellant. May be this report was obtained on an application filed by the plaintiff, this report would not become the plaintiff''s documents. There is no prohibition in law for the parties to refer to and rely on a document which is on record, but there is no provision in the Code under which a plaintiff can seek a direction for marking the expert''s report received by the court in the pending suit as one of his documents. Applications filed by the petitioner were frivolous. 7. Applications filed by the petitioner were frivolous. 7. In the above facts, finding no infirmity in the orders impugned in the present proceeding, the writ petition is dismissed.