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2019 DIGILAW 270 (HP)

Kishniya v. Tarsem Lal

2019-03-15

VIVEK SINGH THAKUR

body2019
JUDGMENT : Vivek Singh Thakur, J. Present petition has been filed against the impugned order dated 05.05.2017 passed by the the Senior Civil Judge, Nalagarh, District Solan, H.P., in Civil suit (Case No.33/1 of 2013, titled as Tarsem Lal Vs. Kishniya & another) filed by respondent No.1-plaintiff against the present petitioner-defendant for possession of suit land by way of Specific Performance of Contract and in alternative for Damages, whereby an application filed by respondent No.1-plaintiff under Order 7 Rule 14(3) CPC seeking permission to produce and place on record 'agreement to sell' dated 17.05.2005 along with one receipt dated 05.07.2005, has been allowed. Respondent No.2 is the proforma defendant in the main suit. 2. I have heard learned counsel for the parties and perused the record of the trial Court. 3. At the time of filing and decision of the application under Order 7 Rule 14(3) CPC, suit was at the stage of examination of plaintiff's witnesses. 4. Respondent No.1-plaintiff has preferred the suit on the basis of agreement to sell for total sale consideration of Rs.3,87,500/-, reduced into writing on 16.05.2006, between the parties. The said agreement has been typed under the caption "Agreement of Full and Final Payment". As per the plaint, petitioner-defendant has failed to perform his part of contract, whereby he had to execute the sale deed in favour of respondent No.1-plaintiff in pursuance to agreement to sell dated 16.05.2006. In alternative relief, damage to the tune of Rs.7,00,000/- has been claimed. 5. Petitioner-Defendant has contested the claim of respondent No.1-plaintiff stating, in the written statement, that he had never agreed or entered into alleged agreement to sell qua the suit land with respondent No.1-plaintiff and had never received any amount of consideration from respondent No.1- plaintiff on 16.05.2006, as claimed in the alleged agreement, as a consideration of sale of suit land or any portion thereof and the alleged agreement dated 16.05.2006 is without consideration and is a sham paper transaction, not binding on him, in any manner. Further stated that respondent No.1-plaintiff, in connivance with the witnesses, has prepared false, fictitious and forged agreement with a designed malafide and illegal motive to grab the valuable suit land. It is further claimed that petitionerdefendant is an old aged, rural, rustic and illiterate person, who knows only to put his signatures. Further stated that respondent No.1-plaintiff, in connivance with the witnesses, has prepared false, fictitious and forged agreement with a designed malafide and illegal motive to grab the valuable suit land. It is further claimed that petitionerdefendant is an old aged, rural, rustic and illiterate person, who knows only to put his signatures. Further that, in fact, respondent No.1-plaintiff along with one Maan Singh had approached petitioner-defendant on 16.05.2005 to purchase the suit land in equal share and according to the bargain between the parties, total sale consideration was settled @ Rs.7,75,000/- and to this effect, an agreement to sell was reduced into writing on 17.05.2005 and on that date, earnest money of Rs.1,00,000/- was also paid and respondent No.1-plaintiff along with Maan Singh had agreed to pay balance sale consideration of Rs.6,75,000/- on or before 16.05.2006, but they had failed to make the entire payment on or before 16.05.2006 and for rise in average value and failure to arrange the funds, respondent No.1- plaintiff and Maan Singh had refused to get the sale deed registered in their favour and had demanded return of amount paid by them, for which petitioner-defendant had agreed and returned it to them, and thereafter, on 16.05.2006, respondent No.1-plaintiff had asked him to execute the document for cancellation of previous agreement dated 17.05.2005 and as such, petitioner-defendant, came to Nalagarh for executing the document to cancel the previous agreement dated 17.05.2005, but respondent No.1-plaintiff in connivance with other witnesses with dishonest and fraudulent intention had prepared false, forged and fabricated document i.e. alleged agreement dated 16.05.2006, by taking undue advantage of illiteracy of petitioner defendant, who signed this document at the instance of respondent No.1-plaintiff, under wrong impression by believing him. 6. The plea of the petitioner-defendant with respect to agreement dated 17.05.2005 has been raised in the preliminary objections incorporated in the written statement, which has been replied by respondent No.1-plaintiff, in the replication to the written statement clarifying therein that earlier he and Maan Singh had intended to purchase one bigha of land from the petitioner-defendant for a consideration of Rs.7,75,000/- and as such agreement dated 17.05.2005 was executed and earnest money of Rs.1,00,000/- was also paid to the petitioner-defendant. However, later on, another purchaser Maan Singh had shown his reluctance to purchase the land and therefore, respondent No.1- plaintiff alone had entered into an agreement to purchase half of the land i.e. 0-10 biswas for half consideration of the earlier settled amount of one bigha and thereafter after payment of sale consideration to the petitioner-defendant, agreement of full and final payment dated 16.05.2006 was executed for total sale consideration of Rs.3,87,500/- in presence of marginal witnesses. Plea of preparing forged and fabricated agreement on 16.05.2006, on the pretext of execution of cancellation agreement, has been denied by respondent No.1-plaintiff. 7. During the pendency of suit, respondent No.1- plaintiff has preferred an application under Order 7 Rule 14(3) CPC, for production and placing on record the agreement dated 17.05.2006 along with receipt dated 05.07.2005. In para-2 of the application, date of agreement has been wrongly typed out as 17.03.2005, which has caused the same mistake about the date in the impugned order also. However, in the cause title of the application as well as in the prayer, dates of agreement and receipt have been rightly mentioned. 8. In aforesaid application, it is averred on behalf of respondent No.1-plaintiff that despite exercising due diligence, these documents could not be mentioned in the list of documents, attached with the plaint and now necessity has arisen to place the same on record, as the petitioner-defendant has alleged that agreement dated 16.05.2006 is a forged and fabricated document, prepared without consideration. Whereas, it is an agreement of payment of full and final sale consideration on 16.05.2006 and the earlier agreement dated 17.05.2005, was also duly attested by the Notary Public and sale consideration paid therein was also taken into consideration at the time of executing agreement dated 16.05.2006. Further, production of these documents will not cause any prejudice to the petitioner-defendant, who is executant of these documents and the case is at its initial stage. 9. Petitioner-Defendant has opposed the aforesaid application by stating that no agreement, as mentioned in the application, was executed between the parties on 17.03.2005 and further that there is no reference of above said document in agreement dated 16.05.2006, on the basis of which main suit has been filed. 9. Petitioner-Defendant has opposed the aforesaid application by stating that no agreement, as mentioned in the application, was executed between the parties on 17.03.2005 and further that there is no reference of above said document in agreement dated 16.05.2006, on the basis of which main suit has been filed. It is further averred that these documents were in the knowledge and possession of respondent No.1-plaintiff and he could have referred all such documents in the plaint and produce the same before the Court or at least could have mentioned about these documents in the list of reliance. It is also denied that payment of sale consideration, so made in pursuance to the alleged document dated 17.05.2005, was taken into consideration at the time of execution of last agreement dated 16.05.2006. 10. Learned counsel for the petitioner-defendant has contended that there is no averment in the plaint with respect to agreement dated 17.05.2005 and receipt dated 05.07.2005, which is, now, being produced by filing the application referred to supra and there is no reference of such agreement dated 17.05.2005 in the agreement dated 16.05.2006 and the suit is based only on the agreement dated 16.05.2006. It is further submitted that the petitioner-defendant was prevented by none to mention these facts in the plaint and also to mention about first agreement in the subsequent agreement and despite that it is not so mentioned/referred either in plaint or in subsequent agreement, which creates doubt about the manner and circumstances of execution of agreement dated 17.05.2005 and receipt dated 05.07.2005, and as these documents were in the knowledge and possession of respondent No.1-plaintiff, he is not entitled to produce these documents at this stage for his act, conduct and deeds. According to him, for want of pleadings with respect to these documents, these documents cannot be permitted to be taken on record and therefore, trial Court has committed illegality and material irregularity in allowing the application by passing the impugned order. 11. Learned counsel for respondent No.1-plaintiff has supported the impugned order for the reasons stated therein and by referring the pleadings in written statement with respect to agreement dated 17.05.2005, it is claimed that these documents are necessary and relevant for complete and final adjudication of the dispute between the parties. 11. Learned counsel for respondent No.1-plaintiff has supported the impugned order for the reasons stated therein and by referring the pleadings in written statement with respect to agreement dated 17.05.2005, it is claimed that these documents are necessary and relevant for complete and final adjudication of the dispute between the parties. Reliance has been placed on the decision rendered by the Apex Court in Salem Advocate Bar Association, Tamil Nadu vs. Union of India, (2005) AIR SC 3353 [ (2005) 6 SCC 344 ] wherein it is observed that Order 7 Rule 14(3) CPC requires leave of the Court to be obtained for production of the documents at later stage after filing of the plaint and list of documents. 12. Reliance has also been placed on the decision rendered by the Apex Court in Chakreshwari Construction Private Limited vs. Manohar Lal, (2017) 5 SCC 212 , wherein it has been held that law permits the parties to file additional evidence at any stage of the trial under Order 7 Rule 14(3) CPC, including at the first or/and second appellate stage under Order 41 Rule 27 CPC, with the leave of the Court provided a case is made out to seek such indulgence. 13. Claim of respondent No.1-plaintiff, in civil suit, is based upon agreement dated 16.05.2006, which is an agreement altogether different to the earlier agreement dated 17.05.2005 as earlier agreement was executed between (A) and (B plus C) with regard to one bigha of land. Whereas, agreement dated 16.05.2006 is an agreement executed between (A) and (B) only, wherein (C) is not a party and subject matter of the agreement is only 0-10 biswas of land, which might be a portion of property subject matter of earlier agreement, but not the entire land which is subject matter of earlier agreement. Therefore, in a claim, based upon a subsequent agreement dated 16.05.2006, independent of the earlier agreement dated 17.05.2005, there was no necessity of mentioning of details of earlier agreement as well as any receipt related thereto, might be issued with respect to part payment, if any. In the facts and circumstances detailed supra, it was also not necessary to mention about execution of agreement dated 17.05.2005 in subsequent and independent agreement dated 16.05.2006. In the facts and circumstances detailed supra, it was also not necessary to mention about execution of agreement dated 17.05.2005 in subsequent and independent agreement dated 16.05.2006. Therefore, plea of petitioner-defendant that for want of mention in the plaint or in the agreement dated 16.05.2006, about agreement dated 17.05.2005 and receipt related thereto, these documents cannot be permitted to be placed on record, is not tenable. 14. Now question arises that when agreement dated 17.05.2005 or receipt related thereto was not necessary to be referred to in plaint or in subsequent agreement dated 16.05.2006, for what reason, the necessity has arisen to place these documents on record. 15. As noticed supra, it is preliminary objection of the petitioner-defendant, taken in written statement, wherein there is reference of earlier agreement dated 17.05.2005 entered into between him and respondent No.1-plaintiff along with one Maan Singh. Petitioner-defendant has given a reference of the said agreement in a particular manner, which has been replied and explained by respondent No.1-plaintiff in reply to preliminary objections in a different manner. Therefore, this document has also become relevant for consideration to adjudicate upon the issues raised in the suit completely and finally. 16. Respondent No.1-plaintiff has filed the application under provision of Order 7 Rule 14(3) CPC which reads as under:- "(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." 17. A bare reading of this provision indicates that any document which ought to be produced in the Court or to be entered in the list of reliance at the time of presentation of plaint, but not produced or entered accordingly, shall be received in evidence only with the leave of the Court. A bare reading of this provision indicates that any document which ought to be produced in the Court or to be entered in the list of reliance at the time of presentation of plaint, but not produced or entered accordingly, shall be received in evidence only with the leave of the Court. Agreement dated 17.05.2005 and receipt dated 05.07.2005 sought to be produced in the Court are not the documents which ought to be produced in the Court by the plaintiff or ought to be entered in the list of reliance at the time of presentation of a plaint because as discussed in detail supra, these documents had never been relied upon by respondent No.1-plaintiff and there was no occasion to file these documents with plaint or mention these documents in list of reliance. Therefore, question of grant of leave to produce the documents under this provision to the plaintiff will arise only when the document is of such a nature which ought to be produced or entered in the list of reliance at the time of presentation of plaint, which is not a situation in the present case. Therefore, provision of Order 7 Rule 14(3) CPC shall not be applicable in the present case. 18. By Amendment Act 104 of 1976, a provision enabling the party to produce the evidence not previously known or which could not be produced despite due diligence, was incorporated by inserting Rule 17-A to the Order 18. However, by Amendment Act, 1999, the said Rule 17-A stands omitted. 19. In Salem Advocate Bar Association's case (supra) referring its earlier decision in Salem Advocate Bar Association, T.N. vs. Union of India, (2003) 1 SCC 49 , the Apex Court has held that on deletion of Order 18 Rule 17-A, which was provided for leading additional evidence, law existing before introduction of amendment would stand restored, and even before insertion of Order 18 Rule 17-A, Court had in built power to permit parties to produce evidence not known to them earlier or which could not be produced inspite of due diligence. It is further held that Order 18 Rule 17-A did not create any new right, but only clarified the position and therefore, deletion of Order 18 Rule 17-A does not disentitle production of evidence at later stage and on party satisfying the Court that after exercise of due diligence, that evidence was not within his knowledge or could not be produced at the time party was leading evidence, the Court may permit leading of such evidence at later stage on such terms as may appear to be just. 20. Where there is no specific provision, Section 151 CPC empowers the Court with inherent powers to do justice and it has been held in Rajendra Prasad Gupta vs. Prakash Chandra Mishra, (2011) 2 SCC 705 that this provision has to be interpreted to mean that every procedure is permitted to the Court for doing justice unless expressly prohibited. In the present case, there is no express power to file an application for leading additional evidence or to place the documents on record, which could not be produced earlier and were not ought to be produced with plaint or to be relied in list of reliance, like present case. The application, in present case, has been filed invoking the provisions of Order 7 Rule 14(3) CPC read with Section 151 CPC. However, even if, Order 7 Rule 14(3) CPC, is not found applicable in the facts and circumstances of the case, inherent powers under Section 151 CPC can be exercised undoubtedly in such a situation and where there is Court has power to pass an order otherwise than the provisions mentioned in the application, mentioning of wrong provisions cannot be a ground for rejecting the prayer. 21. The documents sought to be produced are not unknown to the petitioner-defendant, as he, in his written statement, had made categorical reference of the agreement dated 17.05.2005 and in response thereto, respondent No.1- plaintiff had made averments in replication for clarifying the same. By producing these documents and there is no change in basic nature of the claim set up by respondent No.1-plaintiff rather these documents would only be relevant to adjudicate the claim already made. By producing these documents and there is no change in basic nature of the claim set up by respondent No.1-plaintiff rather these documents would only be relevant to adjudicate the claim already made. It is also noticeable that these documents are in possession of respondent No.1-plaintiff and the petitioner defendant had relied thereupon in preliminary objection taken in his written statement, but had not taken any step for production thereof in the Court during trial, including issuing notice to the plaintiff or seeking direction of the Court for its production by respondent No.1-plaintiff. Petitioner-defendant will have right to lead evidence to rebut the evidence led by respondent No.1- plaintiff and availability of these documents on record would facilitate the petitioner-defendant to prove his plea taken in written statement as production of these documents does not prove the plea of respondent No.1-plaintiff or petitioner defendant. Rival claims of parties are to be assessed on the basis of pleadings, admissible and relevant oral as well as documentary evidence. Plea of parties to be evaluated on the basis of proved contents of documents. These documents shall facilitate the trial Court to adjudicate and determine the real controversy between the parties completely and finally. 22. In the present case, application has been filed only to produce and place on record certain documents, therefore, the trial Court has rightly accorded permission to place these documents on record, but subject to proving those documents, in accordance with law. Permission to produce and place the documents on record does not ipso facto make those documents admissible or proved on record. The production and placing of these documents on record shall be subject to all legal and just exceptions including admissibility, proof of documents and other averments related thereto. Therefore, any observation made in this application in this regard shall be confined to adjudication of present application and shall have no bearing on respective claims of parties which are yet to be assessed by the trial Court on conclusion of trial. 23. In view of the above discussion, I find no infirmity, illegality, irregularity or perversity in the impugned order dated 05.05.2017 passed by the Senior Civil Judge, Nalagarh, District Solan, H.P., in civil suit (Case No.33/1 of 2013, titled as Tarsem Lal Vs. Kishniya & another) allowing the production and placing of documents on record. 24. Parties are directed to appear before the trial Court on 01.04.2019. Kishniya & another) allowing the production and placing of documents on record. 24. Parties are directed to appear before the trial Court on 01.04.2019. Records be sent back immediately. Petition is dismissed, being devoid of merits, in aforesaid terms, so also pending application(s), if any.