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2018 DIGILAW 363 (ORI)

Tulasi Barik v. Biplab Kumar Barik

2018-04-05

BISWANATH RATH

body2018
JUDGMENT : Biswanath Rath, J. This civil miscellaneous petition involves a challenge to the order passed by the trial court on 18.12.2017 involving Civil Suit no.50 of 2013 as appearing at Annexure-5 to this petition. 2. Short background involved in the case is that the petitioner is the defendant no.18 in the suit involved herein whereas the opposite party nos.1 & 2 are the plaintiffs in the court below. Opposite party nos.1 & 2 being the plaintiffs initiated Civil Suit No.50 of 2013 for partition, permanent injunction along with other ancillary reliefs. 3. Leaving aside the unnecessary details regarding the plaints as well as the pleadings as well as the written statement as this Court finds, the same are not relevant at this stage, this Court only takes note the followings: Short fact involving the case is that the petitioner i.e. the defendant no.18 appeared in the suit by filing her written statement along with counter claim refuting the claim of the plaintiffs containing therein that the suit land is an undivided homestead-cum-dwelling house of defendant nos.1 to 9 and the defendant no.18 i.e. the petitioner. It is further pleaded that during cultivation of the land at Village Kokanda the petitioner developed relationship with one Pranakrushna Barik who was looking after Makar Barik and his properties. Taking advantage of innocence of Makar Barik, Pranakrushna prepared certain documents behind his back. Defendant no.10-Niranjan Barik being the son of Pranakrushna sold the said property and the plaintiffs being the sons of Niranjan tried to insert their name, resulting the plaintiffs bringing the sons of Niranjan to the fold of the suit. The petitioner also pleaded that she has every right to repurchase the land purchased by the plaintiffs being co-partioner. It is for the above, the defendant no.18 i.e. the present petitioner filed an application on 22.7.2017 and 28.11.2017 to mark some documents on her behalf in order to prove the status of Niranjan involving the document such as the electoral rolls of the year 1988, 1995, 1999, 2002 and 2004 involving Mouza-Kopanda which claimed to be misplaced but were later on found. Petitioner also claimed in her application that Niranjan Barik created T.C. of Bhagirathpur U.P. School claiming himself to be the son of Makar Barik and the same is not genuine one. Petitioner also claimed in her application that Niranjan Barik created T.C. of Bhagirathpur U.P. School claiming himself to be the son of Makar Barik and the same is not genuine one. Thus, the petitioner filed the documents which she got from the Office of the Block Education Officer, Rasulpur and the Yadast No.717, 611, certified copy of the R.O.R. of Khata No.288 and certified copy of registered sale deed dated 29.01.1952, for marking as public documents requiring no necessity of formal proof. Though the plaintiff did not file any objection to the application dated 22.7.2017 but however, the plaintiffs filed objection to the application dated 28.11.2017 challenging the maintainability of this application and raising the objection on the premises that the certified copies of the Voter list having already been marked, there is no requirement of filing of any other document. Learned counsel for the petitioner alleging that there is mechanical dismissal of the applications referred to hereinabove, by the trial court contended that the impugned order is not only contrary to law but is also an outcome of non-application of judicial mind. 4. It is also alleged that there has been wrong application of substantive law and by erroneous interpretation of law wrong conclusion has been arrived at by the trial court. It is in the premises that the document sought to be introduced being vital to establish the status of Niranjan that his date of birth is in relation with the father becomes vital piece of evidence and are all required for effective adjudication of the suit. For their being a counter claim by the petitioner, learned counsel for the petitioner also claimed that the documents were very much required to be marked to at least establish the counter claim submitted by the petitioner and this aspect has been failed to be appreciated by the trial court. 5. Considering the submission of the learned counsel for the petitioner and on perusal of the pleadings of the petitioner in the written statement as well as in the counter claim at the instance of the petitioner-defendant no.18, this Court nowhere finds any pleading regarding Voter list as well as electoral rolls of the years mentioned therein as well as the transfer certificate referred to in the applications filed by the petitioners. Similarly, there is also no mentioning of the documents like Yadast or the certified copy of the R.O.R. or the registered sale deed dated 29.01.1952 in the written statement as well as in the counter claim. It is under this circumstance, this Court finds, a party has the liberty to lead evidence not only depending on the pleadings either in the plaint or in the written statement but also confining to the materials referred to therein. Law is fairly well settled that any evidence beyond the pleading remains immaterial for the purpose of consideration of the suit. Further, more Law is also well settled that unless reference of such document is available in the pleadings, the adversary does not get chance to rebut and there is, thus, no scope for establishing such aspect through evidence. Further, such scope has been further restricted by virtue of amendment for introduction/satisfaction of due diligence. In the previous paragraph, this Court has already observed that there is even no stray reference of the document now sought to be introduced in the written statement cum the counter claim by the defendant no.18. It is under this circumstance, this Court finds, if at all any additional evidence is necessary, it is on the other hand, open to the defendant no.18 to amend the pleading and bring the documents to the fold of pleading before asking a Court to have the liberty of bringing such documents to the fold of evidence straightway. In absence of which, there is no liberty to any party to introduce the document at his mercy. Granting such liberty now will be amounting to take the suit to the uncontrolled stage with possibility of abuse of process of Court. Further, looking to the pleadings in the written statement as well as in the counter, this Court also finds, the defendant no.18 has already brought certain documents to establish his case. For no pleading, the belatedness in the attempt and further, in absence of amendment of the pleadings, this Court finds, both the applications were not sustainable in the eye of law. 6. Order VII Rule 14 of C.P.C. dealing with production of document, on which the plaintiff sues or relies, prescribes as follows:- “14. For no pleading, the belatedness in the attempt and further, in absence of amendment of the pleadings, this Court finds, both the applications were not sustainable in the eye of law. 6. Order VII Rule 14 of C.P.C. dealing with production of document, on which the plaintiff sues or relies, prescribes as follows:- “14. Production of document on which plaintiff sues or relies-(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. [(3) A document which 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 but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.] (4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.]” Similarly, Order VIII, Rule 1-A and 6-A applies for written statement and counter claim as well deals as follows: “[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 filed with the written statement. (2) Where any such document is not in possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. (2) Where any such document is not in possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. [(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be 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.] [6-A. Counter –claim by defendant – (1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.” Reading of the aforesaid provision, it becomes clear that the purpose behind relying of documents in plaint as well as written statement and counter claim is to apprise the adversary about the other parties claim. It is here, this Court takes into consideration a decision of this Court in the case of Ramchandra Das Versus Hiralal Modi, Trustee, Parvati Bai Estate as reported in 45 (1978)CLT453. 7. Perused the observations as well as the findings of the trial court. It is here, this Court takes into consideration a decision of this Court in the case of Ramchandra Das Versus Hiralal Modi, Trustee, Parvati Bai Estate as reported in 45 (1978)CLT453. 7. Perused the observations as well as the findings of the trial court. For the observations of this Court made hereinabove, this Court finds no disagreement with the finding of the trial court and thus, remain constrained to reject the civil miscellaneous petition at the admission stage, thereby confirming the impugned order. 8. The civil miscellaneous petition stands dismissed at the admission stage itself, for having no merit. No cost.