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2019 DIGILAW 1407 (HP)

Sunil Kumar v. Lajwanti (now deceased)

2019-09-18

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, the petitioner has challenged order, dated 18.04.2019 (Annexure P-5), passed by the Court of learned Civil Judge-II, Amb, District Una, H.P. in CMA No. 111/2019 in Civil Suit No. 89/2012, vide which, an application filed under Order VII, Rule 14(3) of the Code of Civil Procedure by the petitioner to place on record certain documents has been dismissed. 2. Brief facts necessary for the adjudication of the present petition are that petitioner has filed a suit for declaration against the contesting respondents to the effect that plaintiffs, defendants No. 2, 3 and proforma defendants No. 4 to 10 are successors-in-interest of Shri Mehar Chand (deceased) and Shri Mangat Ram (deceased), being brothers, sons and daughters qua the suit land and Will dated 14.05.1986, allegedly executed by Shri Mehar Chand in favour of defendant No. 1, registered on 06.07.2005 vide Vasika No. 218 and Will dated 15.01.1989, allegedly executed by Mangat Ram in favour defendant No. 1, registered on 06.07.2005 vide Vasika No. 219 were forged Wills, a result of fraud played by defendants No. 2 and 3 in connivance with the scribe of the Wills as also the marginal witnesses. This suit was filed in the year 2012. At the stage of leading of evidence of the plaintiffs before the learned Trial Court, an application was filed by the plaintiffs under Order VII, Rule 14(3) of the Code of Civil Procedure, copy of which is appended with the present petition as Annexure P-3, praying for grant of permission to place on record certified copies of sale deeds executed by Shri Mehar Chand, dated 14.03.1980. It was mentioned in the application that plaintiffs had filed a suit for declaration, whereby they had challenged the Will of Shri Mehar Chand, as the same was thumb marked, whereas Mehar Chand during his life time, always signed the documents. It was further mentioned in the application that this was evident from the certified copies of sale deeds vide Vasika Nos. 207 and 208, dated 14.03.1980, executed by deceased Mehar Chand, which need to be proved. It was further mentioned in the application that this was evident from the certified copies of sale deeds vide Vasika Nos. 207 and 208, dated 14.03.1980, executed by deceased Mehar Chand, which need to be proved. Inadvertently, certified copies of sale deeds could not be earlier placed on record, as though the plaintiffs had left the said documents in the brief, but ?yesterday the applicants in the office of their counsel for preparing the affidavit, then they came to know that the above said documents are essential and require to be proved before this Hon'ble Court.? 3. The application was resisted by the contesting defendants. 4. Vide order dated 18.04.2019, which is impugned by way of present petition, the application was dismissed by the learned Court below by holding that there was no reference to the documents either in the plaint or replication and thus filing of the application was done with an ulterior motive. Learned Court also held that fact regarding signing capacity of Shri Mehar Chand was never alleged by the plaintiffs in the plaint and the plaintiffs could not be permitted to raise a new plea. On these basis, the application was dismissed. 5. Leaned counsel for the petitioner has argued that the impugned order is not sustainable in the eyes of law, as learned Trial Court erred in not appreciating that there was no delay in filing the application, as the suit was at initial stage itself, as evidence of the plaintiffs was being recorded. He has further argued that learned Court has erred in not appreciating that placing said documents on record was necessary for the plaintiffs to prove their case and as the plaintiffs had prudently supplied the certified copies of the sale deeds to their counsel, they cannot be made to suffer for the acts of omission and commission of the counsel, because it was the counsel who failed to place the said documents on record. He has relied upon the judgment of this Court in Braham Dass Vs. Onkar Chand and another, 2009 (1) Shim. LC 339 to press home the fact that the provisions of Order VII, Rule 14(3) of the Code of Civil Procedure have to be interpreted liberally and endeavour should be to allow the evidence which a party intends to place on record. 6. Onkar Chand and another, 2009 (1) Shim. LC 339 to press home the fact that the provisions of Order VII, Rule 14(3) of the Code of Civil Procedure have to be interpreted liberally and endeavour should be to allow the evidence which a party intends to place on record. 6. On the other hand, learned counsel for the contesting respondents has argued that there was no infirmity with the order passed by the learned Trial Court as filing of the application was nothing but an abuse of the process of law, because the intent of the plaintiffs was to fill up lacunae. He has further argued that Order VII, Rule 14 of the Code is not meant to allow the parties to fill up lacunae and liberal interpretation of said provision cannot be at the cost of the rights of the other contesting side. Mr. Dhaulta has further argued that the suit was filed in the year 2012 and the application to place on record the documents was preferred by the plaintiffs after a lapse of almost seven years in the month of January, 2019. According to him, simply because the case was at the stage of recording the statements of the plaintiffs' witnesses, it could not be said that the same was at the threshold stage, as there was no explanation whatsoever contained in the application as to what took the plaintiffs seven years to move the application. He thus prayed that the petition be dismissed with cost. 7. I have heard learned counsel for the parties and have also gone through the impugned order as well as other documents appended with the petition. 8. It is a matter of record that the suit was filed by the plaintiffs before the learned Trial Court in the month of April, 2012. The application under Order VII, Rule 14 of the Code to bring on record the documents mentioned therein had been filed in the month of January, 2019. A perusal of the application demonstrates that there is no explanation given therein as to why the documents could either not be placed on record at the time of filing of the suit or within some reasonable time thereafter. It is not the case of the plaintiffs that the documents which they intend to place on record came into existence after the filing of the suit. It is not the case of the plaintiffs that the documents which they intend to place on record came into existence after the filing of the suit. In fact, all that is mentioned in the application is that the documents which the plaintiffs intend to place on record could not earlier be placed on record, as the plaintiffs had left the said documents in the brief, but a day before filing of the application when they went to the office of their counsel for preparing an affidavit, they came to know that the said documents were essential and required to be proved in the Court. The averments made in the application in fact fly at the face of the argument of the learned counsel for the petitioner that the documents could not be placed on record because of the omission of the counsel in the Trial Court. There is no such averment made in the application. On the contrary, the averments are to the effect that it was on a day before the filing of the application that the plaintiffs realized that the filing of the said documents was necessary for proving their case. 9. A Coordinate Bench of this Court in Braham Dass Vs. Onkar Chand and another, 2009 (1) Shim. LC 339 has held that when an application is filed under Order VII, Rule 14(3) of the Code of Civil Procedure to place on record documents, then whether the documents are relevant or not is not to be decided by the Court at the stage of consideration of the application and this question has to be determined at the stage of arguments. Endeavour of the Court 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. It has been further held that it is settled principle that opportunity should be afforded to the parties to produce their evidence and state their case before the Court and the Court has to exercise the jurisdiction in favour of the production of the evidence instead of scuttling it, but the Court should not permit the parties to indulge in dilatory tactics to stall the proceedings. Whether or not such application can be allowed, is to be decided in each case in the light of the particular circumstances therein. This judgment does not helps the petitioner for following reasons: (A) As I have already mentioned above, there is no explanation worth its name in the application as to why the documents could not be placed on record by the plaintiffs in the interregnum of seven years since the filing of the suit and the filing of the application. (B) The provisions of Order VII, Rule 14(3) of the Code, though are to be interpreted liberally, however, said provisions cannot be permitted to be used as a tool by either of the parties to fill up lacunae in their case. (C) Provisions of Order VII, Rule 14(3) of the Code exist to take care of a situation where a party bonafidely was not in a position to place certain documents on record and in these circumstances, the Court has to exercise its discretion to ensure that justice is delivered to the parties concerned. (D) Whenever the Court is called upon to exercise its discretion, then before exercising said discretion, the Court has to weigh the rights of the parties and exercise discretion where such exercise is must for adjudication of the lis and same does not gravely prejudices the other party. 10. In the facts of the present case, as it is clearly borne out from the record that despite the documents being available with the plaintiffs, they failed to place the same on record for almost seven years as from the date of filing of the suit, which demonstrates that there was no due diligence exercised by the plaintiffs, this Court finds no infirmity with the order impugned and further as this Court finds no merit in the petition, the same is dismissed. Miscellaneous applications, if any, also stand disposed of.