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2018 DIGILAW 1872 (RAJ)

Lal Mohammed v. Jaipal

2018-09-10

DINESH MEHTA

body2018
JUDGMENT 1. The above captioned writ petitions emanate from common order dated 30.11.2017, whereby an application dated 23.10.2017 filed by the defendant Lal Mohd. under Order VIII Rule 1A(3) of the Code of Civil Procedure was partly allowed. 2. The defendant Lal Mohd. has challenged that part of the order, vide which his application qua certified copy of the plaint has been rejected, by way of writ petition being SBCWP No. 14650/2017; whereas the other writ petition being SBCWP No. 15053/2017 has been preferred by the plaintiff legal representatives of Jaipal, against the very same order, vide which the court below has allowed the application and permitted the defendants to file the documents and bills relating to water and electricity connection. 3. As both the writ petitions involve common facts and law governing provisions of Order VIII Rule 1A(3) of the Code, they are being decided conjointly. The facts admitted and appertain to both the writ petitions are set out here infra. 4. The plaintiff Jaipal had filed a suit in the year 2001 for eviction and possession against the defendants - Lal Mohd. et al in relation to a Nohara situated in Ward No. 2, Churu. In response to the suit so filed, the defendants filed a written statement on 23.1.2003, denying the averments of the plaint and taking a stance that he had been enjoying possession of the suit property for last 80 years, while also contending that he was entitled to be declared owner, by virtue of adverse possession. 5. Considering the pleadings of the parties, the learned trial court framed 13 issues, out of which, issue no. 13 was framed keeping in view the defendants' stand about their possession to be protected in light of the defense aforesaid. The said issue reads thus:- ^^13- vk;k fiNys 80 o"kZ ls Áfroknh la[;k 1 o mlds iwoZt fookfnr uksgjs ij cgSfl;r ekfyd dkfct lHkh ds Kku esa jgs gS vkSj Áfroknhx.k dk fookfnr uksgjs ij dCtk eq[kkyQkuk gks pqdk gS\ Áfroknh** 6. After recording the evidence of the plaintiff, when the suit reached the stage of defendants' evidence, Lal Mohd. (defendant) filed the subject application on 23.10.2017 and sought leave of the court to produce following set of documents. (i) Plaint of Suit No. 53/2010 pending in the court of Addl. District Judge, Churu between Nawab Khan and Lal Mohd. After recording the evidence of the plaintiff, when the suit reached the stage of defendants' evidence, Lal Mohd. (defendant) filed the subject application on 23.10.2017 and sought leave of the court to produce following set of documents. (i) Plaint of Suit No. 53/2010 pending in the court of Addl. District Judge, Churu between Nawab Khan and Lal Mohd. (defendant) with a plea that an assertion about his possession of the adjacent property since 1997 has been made in the said case. (ii) Set of documents relating to taking electricity connection and water connection by his son, defendant No. 3 and payment of the charges. 7. With a view to seek leave to produce the above sets of document, the defendants contended that these documents are necessary to prove their long possession over the subject property and to establish their adverse possession, on account of taking electricity and water connection. 8. The District Judge, Churu partially allowed the above application under Order VIII Rule 1A(3) of the Code of Civil Procedure vide his order dated 3.11.2017. While refusing the permission to produce first set of documents relating to the certified copy of the plaint, the trial court accepted the application concerning the documents relating to water and electricity connection on the contentious property. SBCWP No. 14650/2017: 9. Mr. Sandeep Shah, learned counsel for the defendants calling in question the order dated 3.11.2017, urged that the learned trial court has erred in rejecting the petitioner's application qua the certified copy of the plaint of the Suit No. 53/2010. He contended that the plaint was necessary to prove his long and subsisting possession; and assertion in this regard has been specifically made in his written statement. He submitted that in case the certified copy of the plaint is taken on record, it would neither prejudice the cause of the plaintiff nor would it impede the cause of trial in any manner. 10. Per contra, Mr. Manish Shishodia supported the order under consideration and contended that the issue no. 8, framed by the learned trial court in this regard, already stood deleted by the High Court, while observing that the possession of the adjacent shop by the other person has no bearing on the suit premises and thus the same is not relevant for the dispute between the present contesting parties. 8, framed by the learned trial court in this regard, already stood deleted by the High Court, while observing that the possession of the adjacent shop by the other person has no bearing on the suit premises and thus the same is not relevant for the dispute between the present contesting parties. Adopting the same analogy and argument, he urged that the plaint of another suit cannot be taken on record of the present case. 11. Having heard learned counsel for the parties and upon perusal of the material available on record, I am of the considered view that the court below has committed neither any error of facts nor of law, in refusing the defendants' prayer to produce certified copy of the plaint of the Suit No. 53/2010 on record. In teeth of the order dated 24.2.2016 passed in SBCWP No. 14830/2015, vide which the issue no. 8 had been obliterated being irrelevant, there remains no ground to plant the plaint of said suit in the present case. Needless to observe that the plaint of the suit of the adjacent property has hardly any bearing or relevance in the present case. With the aid of the plaint, the defendants have sought to assert their possession, which in considered opinion of this Court, is impermissible in law. An assertion made by the plaintiff in the plaint of another suit, even if against the common defendant, cannot be used in evidence in the present case. More so, the averments in the plaint are only assertion of facts and not proof, for which the same cannot be read to lend support to the defendants' assertion regarding their long possession. 12. As a result of the appraisal of factual and legal matrix noticed above, I do not find any substance in the present writ petition, for which it is dismissed. SBCWP No. 15053/2017: 13. This writ petition has been filed by the plaintiff, oppugning remaining part of the order dated 3.11.2017, vide which learned trial court has allowed the defendant's application and permitted him to place on record, two bills of electricity and water in the name of Iqbal, defendant No. 3, subject to payment of cost of Rs. 500/-. 14. Mr. Manish Shishodia, learned counsel for the petitioner, advancing the arguments submitted that the learned trial court has committed a serious error of law in allowing the defendant's application filed on 23.10.2017. 500/-. 14. Mr. Manish Shishodia, learned counsel for the petitioner, advancing the arguments submitted that the learned trial court has committed a serious error of law in allowing the defendant's application filed on 23.10.2017. He firstly contended that the application under consideration was highly belated, by pointing out that after filing the written statement way back on 23.1.2003, the defendant suddenly sprang into action, when the matter was at the stage of his evidence and sough to produce documents relating to electricity and water connection and payment of charges. Secondly he argued that notwithstanding the delay, not even a whisper had been made in the written statement regarding these documents. He emphasised that there was neither any reference of these documents in the written statement nor a mention in the list of documents filed by the defendant. His third submission has been that the provisions of Order VIII Rule 1A of the Code are not meant to cover up the lacunae left by the defendants, advertently or inadvertnelty. He submitted that the import and purport of this provision is only to permit the defendant to bring that evidence on record, which has come into being, after filing of the written statement. By reading the provisions of Order VIII Rule 1A (3), he contended that it is always incumbent upon the defendant to refer to such documents in the written statement and give a list of all those documents upon which his defence is based. 15. Learned counsel for the petitioner further contended that the court below has liberally allowed the defendant's application, completely being oblivious of the statutory provisions and ignorant about the settled legal position. He added that the bills of electricity and water connection are neither relevant nor sufficient to prove defendants' possession, adverse or otherwise. Questioning the very evidentiary value of the contentious documents, he summed up by saying that the application has wrongly been allowed, vide the order impugned. 16. Mr. Shah learned counsel for the defendant-respondent in the present case, supported the order of the learned trial court by contending that in the light of the defendants' assertion in the written statement, regarding their adverse possession and the averments made in para no. 5 of the application that the defendant has found the receipts and documents regarding electricity and water connection taken in 1999, just before filing of the application, his application deserved acceptance. 5 of the application that the defendant has found the receipts and documents regarding electricity and water connection taken in 1999, just before filing of the application, his application deserved acceptance. Learned counsel contended that as these documents were not available with the defendants, at the time of filing written statement, which were unearthed in October 2017, there was hardly any delay in filing the application regarding these documents. He urged that even if there was a bit delay, the same was duly explained and when the learned trial court considering the same has granted defendants' application, this Court should refrain from interfering in its supervisory jurisdiction, under Article 227 of the Constitution of India. 17. In other words his argument has been that the High Court should be loath in interfering in an order, when the learned trial court in exercise of its discretion, has allowed the application and permitted certain documents to be taken on record. 18. Having considered the arguments advanced by rival counsels in relation to the documents already taken on record, I feel that the learned trial court has been a bit too liberal in permitting the defendant to produce the contentious documents. A perusal of the written statement filed by the defendant reveals that they have not made even a whisper about taking the electricity and water connection on the contentious property. Apart from this, the application under consideration has been filed after 16 years of filing of the written statement under a cloak or of finding these documents dating back to the year 1989, only in the year 2017. 19. A simple reading of the provisions of Order VIII Rule 1A (3) of the Code of Civil Procedure reveals that it mandates that the defendant has to make a reference of all the documents in the written statement and has to furnish a list thereof at the time of filing written statement. 20. It is true that the Code of Civil Procedure has kept a window open, for the defendant to file additional documents, during the course of hearing, albeit with the leave of the court; but then, such power has to be exercised by the trial court with great circumspection and caution. It cannot be exercised as a matter of course or as liberally as has been done in the present case. 21. It cannot be exercised as a matter of course or as liberally as has been done in the present case. 21. In considered opinion of this Court, the documents being electricity and water bills of 1997 having not been referred in the pleadings, cannot be permitted to be taken on record after 14 years of filing of the written statement, more particularly, when the suit is at the stage of defendants' evidence. 22. The averments made in the application under consideration shows that these documents are not simply documents to evince the defendants' possession, but have been field with a view to demonstrate overt act of the defendants. With the help of these documents they propose to prove that they have taken electricity and water connection, for which and from such date, their possession has become hostile to the rights, interest and title of the true owner. According to me, this is a pertinent and foundational fact, which needs to be asserted and specifically pleaded in the written statement. 23. In considered opinion of the court, these documents cannot be taken on record, sans any specific pleadings by the defendant in this regard. 24. Tested on the above anvil, impugned order dated 3.11.2017 passed by the learned trial court is clearly erroneous and the court below has exceeded the jurisdiction vested in it. The order dated 3.11.2017 is, therefore, quashed and set aside the writ petition being No. 15053/2017 is hereby allowed; the documents, viz. electricity and water bills in the name of Iqbal filed alongwith the application dated 23.10.2017 are ordered to be taken off the record. 25. To sum up, Writ Petition No. 14650/2017 is dismissed, whereas Writ Petition No. 15053/2017 is allowed, by the common order instant.