Pramod Kumar Sahu v. Rajesh Kumar Agarwal, son of Late Satyanarayan Agarwal, resident of Jhanda Chowk, Ramgarh, PO and PS-Ramgarh, District Hazaribagh
2018-12-04
SHREE CHANDRASHEKHAR
body2018
DigiLaw.ai
JUDGMENT : The petitioners, who are plaintiffs in Title Suit No. 98 of 2001, are aggrieved of order dated 04.12.2017 by which the applications, all dated 12.05.2015, for calling the original power of attorney dated 18.05.1990 from the office of the District Sub-Registrar, Jamshedpur, the L.T.I. register of the year 2001 from the office of District Sub-Registrar, Ramgarh and for calling the specimen signature of the defendant no. 1 from the Bank of Baroda, Ramgarh Cant., Account No. 5095, have been allowed. 2. Title Suit No. 98 of 2001 has been instituted by Kishun Sao, who during pendency of the suit has died and in his place the petitioners have been substituted. The suit was instituted for a decree for declaration of the plaintiff's right, title, interest and confirmation of his possession over the suit property which he claims to have purchased. The defendant-Satya Narayan Agrawal contested the suit by filing written statement, taking a specific stand that the power of attorney allegedly executed by him on 18.05.1990 is forged and fabricated document and it was never executed by him on 18.05.1990 or on any other date either at Jamshedpur or any other place. During pendency of the suit, defendant no. 1 also died and his legal heirs and successors who are respondents in the present proceeding have been substituted. After the plaintiffs' evidence was closed; according to the learned Senior counsel for the petitioners the defendants had examined 5 witnesses, the aforesaid applications were filed by the defendants. 3. Mr. Jai Prakash, the learned Senior counsel for the respondent no. 1 submits that since the plaintiffs have produced a certified copy of the power of attorney dated 18.05.1990, now it is the turn of the defendants to discharge their burden by adducing evidence in support of their stand that the said power of attorney is forged and fabricated document. It is submitted that after the death of the defendant no. 1, who according to the plaintiff has executed power of attorney dated 18.05.1990, it has become necessary for the defendants to lead evidence for comparing signature of the defendant no. 1 with his admitted signature and that was the reason the aforesaid three applications dated 12.05.2015 were filed. 4. Assailing legality of the impugned order dated 04.12.2017, Mr.
1, who according to the plaintiff has executed power of attorney dated 18.05.1990, it has become necessary for the defendants to lead evidence for comparing signature of the defendant no. 1 with his admitted signature and that was the reason the aforesaid three applications dated 12.05.2015 were filed. 4. Assailing legality of the impugned order dated 04.12.2017, Mr. V. Shivnath, the learned Senior counsel for the petitioners has contended that the list of documents of the defendants themselves includes the power of attorney executed by Mr. Satya Narayan Agrawal “along with his finger print” attested by the District Sub-Registrar, Jamshedpur, however, this aspect has been ignored by the trial judge and by a cryptic order, without disclosing any reason whatsoever, why the defendants must be permitted to lead additional evidence, the trial judge has allowed the aforesaid applications. 5. Order VII Rule 14 CPC provides that the plaintiff shall produce the document at the time of presentation of the plaint on which his claim is founded and if such document is not in his possession he shall, wherever possible, state in whose possession the document is. A similar provision is engrafted under Order VIII Rule 1-A CPC which requires the defendant to follow a similar procedure. No doubt, a plaintiff under Order VII Rule 14(3) CPC and a defendant under Order VIII Rule 1-A (3) CPC can be permitted to lead additional evidence with leave of the Court, however, such power must be exercised sparingly and for the reasons to be recorded by the Court. In the context of exercise of this power another requirement in law is that there must be proper foundation in the pleadings of the parties for the documents which are sought to be adduced as additional evidence. 6. It is a matter of record that the substituted defendants have not filed their additional written statement and they have also not filed an application for amendment in the written statement. One of the applications filed by the defendants is for calling the original specimen signature of the defendant-Satya Narayan Agrawal from his bank account with the Bank of Baroda, Ramgarh Cant., Ramgarh. There is no whisper in the written statement about the aforesaid alleged bank account of the Satya Narayan Agrawal with the Bank of Baroda.
One of the applications filed by the defendants is for calling the original specimen signature of the defendant-Satya Narayan Agrawal from his bank account with the Bank of Baroda, Ramgarh Cant., Ramgarh. There is no whisper in the written statement about the aforesaid alleged bank account of the Satya Narayan Agrawal with the Bank of Baroda. The cardinal principle in law is that during the trial of a suit no evidence beyond the pleadings shall be taken on record. 7. Contention raised on behalf of the respondents that after the death of defendant no. 1 his signature on the power of attorney dated 18.05.1990 needs to be compared with his admitted signature and therefore the aforesaid applications dated 12.05.2015 have rightly been allowed, in the above facts of the case, is liable to be rejected. That can be done with reference to the documentary evidence to be adduced by the defendants, as indicated in the list of documents. As indicated hereinabove, there must be proper foundation in the written statement, may be incorporated through amendment, but without any averment in the pleadings additional document cannot be adduced in evidence. After the plaintiffs' evidence was closed and 5 witnesses were examined by the defendants, there must be a compelling reason and only when the Court comes to a conclusion that additional evidence must be taken in the suit, the applications dated 12.05.2015 can be allowed. But, this is not so in this case. Challenge to the power of attorney dated 18.05.1990 as forged and fabricated document by the defendants is sought to be established by the defendants through as many as 20 documents and they themselves have produced the finger print of the defendant no. 1. In the list of documents or in the written statement there is no whisper of the records which are mentioned in the applications dated 12.05.2015. Moreover, the applications dated 12.05.2015, which, in essence, are not applications for the expert evidence; signature of the defendant no. 1 cannot be verified by the Court, cannot be permitted. Another aspect of the matter is that the trial judge seems to have ignored the basic principle that it is for the plaintiff to establish his case and weakness in the case of the defendant does not decide the fate of the suit. 8. In the aforesaid facts, finding serious infirmity in the impugned order dated 04.12.2017, it is set-aside.
Another aspect of the matter is that the trial judge seems to have ignored the basic principle that it is for the plaintiff to establish his case and weakness in the case of the defendant does not decide the fate of the suit. 8. In the aforesaid facts, finding serious infirmity in the impugned order dated 04.12.2017, it is set-aside. 9. The writ petition is allowed.