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2019 DIGILAW 314 (HP)

Sunil Dutt v. Kedar Nath

2019-03-26

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of Constitution of India, petitioner assails order dated 06.02.2018, passed by learned Senior Civil Judge, Court No.(I), Amb, District Una in Civil Suit No. 69/07 RBT No. 122/14/07, titled as Kedar Nath versus Sat Parkash and others vide which application filed by the present petitioner under Order 8, Rule 1A(3) read with Section 151 of the Civil Procedure Code stands dismissed by the learned Court below. 2. Brief facts necessary for the adjudication of the petitioner are as under:- Predecessor-in-interest of respondent No. 1 and respondent No. 2 has filed a civil suit which is pending adjudication before learned Senior Civil Judge, Court No.(I) Amb, District Una. The suit is for declaration that plaintiff and proforma defendants (which includes the present petitioner) are owners in possession of land measuring 0-99-77 Hects., situated in Mouza Ghanari Dadwalan, Tehsil Amb, District Una, H.P.,(hereinafter referred to as 'suit land’) details whereof are given in the suit and that defendants No. 1 to 4 have no right title or interest over the same and mutation No. 509 and 173 entered and sanctioned in favour of defendants No. 1 to 4 in respect of half share of deceased Smt. Ram Rakhi out of the suit land, dated 28.12.2016 are wrong, illegal, void and ineffective against the rights of the plaintiffs as also proforma defendants. This suit, admittedly, has been filed way back in the year 2007. 3. In June 2017, petitioner filed an application under Order 8, Rule 1A(3) read with Section 151 of the Civil Procedure Code praying for leave of the Court to place on record in evidence a registered Gift Deed, scribed on 15.05.1963 and registered on 16.05.1963, purportedly by late Smt. Ram Rakhi in his favour as also the plaintiffs and other proforma defendants. 4. It was mentioned in the application that Smt. Ram Rakhi had got scribed a Gift Deed on 15.5.1963, which was registered on 16.5.1963. Same pertained to land other than the suit land. The document could not earlier be placed on record as it was lying in a Trunk and due to inadvertence it could not be placed on record at the time of filing of the written statement. 5. Contesting defendants opposed the application. Same pertained to land other than the suit land. The document could not earlier be placed on record as it was lying in a Trunk and due to inadvertence it could not be placed on record at the time of filing of the written statement. 5. Contesting defendants opposed the application. It was mentioned in the reply that as the applicant had not filed any written statement and therefore also he could not be permitted to place on record any documents beyond pleadings. 6. Vide impugned Order, learned Court below has rejected the application inter alia on the ground that as the Gift Deed pertained to land other than the suit land, it was not necessary to bring the same on record for the decision of the suit. Learned Court held that even if it was presumed that the Gift Deed was executed by Smt. Ram Rakhi then also as the same pertained to some other land than the suit land, it was neither relevant, nor applicant could demonstrate as to how the document was relevant to decide the suit before the Court. 7. Feeling aggrieved, petitioner has challenged the order so passed by the learned Court below by way of this petition. 8. I have heard the learned counsel for the parties and gone through the impugned Order as also the documents placed on record. 9. Order 8 Rule 1A(3) of the Code of Civil Procedure provides that a document which ought to be produced in Court by defendants and is not produced, shall not be received in evidence on behalf of the defendants at the time of hearing of the suit without leave of the Court. 10. In the present case, the petitioner has not filed any written statement to the suit. The reason for the same, but obvious appears to be that the interest of the plaintiff as also the petitioner- (defendant) is the same. Petitioner stands impleaded in the suit as a proforma defendant. 11. Be that as it may, the fact of the matter remains that in the absence of there being any written statement on record on behalf of the defendant, Order 8 Rule 1A(3) of the Code will not per se come into play, because in my considered view, defendant can not place on record a document in the absence of written statement having been filed. Party to a suit is entitled to lead evidence to prove its case. For that, but obvious there have to be on record pleadings which are required to be proved/substantiated by statements of witnesses and/or the documents. In the absence of pleadings being there, no evidence can be led by a party. 12. Even otherwise, the findings returned by the learned Trial Court do not suffer either from any illegality or perversity or jurisdictional error. 13. It is the own case of the applicant that purported Gift Deed which he intended to place on record vide application under Order 8 Rule 1A(3) pertains to land other than the suit land. That being so, there is no perversity with the findings returned by learned Trial Court that placing said document on record was not relevant. 14. During the course of arguments, learned counsel for the petitioner has argued that impugned Order is not sustainable in the eye of law, as learned Court below has erred in not appreciating the document which petitioner intended to place on record was more than 30 years old, therefore, the same was per se admissible in evidence. In my considered view this submission of learned counsel deserves rejections. Section 90 of the Indian Evidence Act cannot be interpreted in the said manner. 15. Hon’ble Supreme Court in Gangamma and others Versus Shivalingaiah, (2005) 9 SCC 359 has held that section 90 of the Indian Evidence Act nowhere provides that in terms there of the authenticity of the recitals contained in any document is presumed to be correct. Hon’ble Supreme Court has further held that mere execution of a document, does not lead to be conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in Section 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto. 16. Besides this, the suit having been instituted as far back as in the year 2007, no cogent explanation has come forth from the petitioner as to why the application to place on record the document at a belated stage. The justification given in the application that registered Gift Deed was lying in the Trunk is not worth believing. 17. 16. Besides this, the suit having been instituted as far back as in the year 2007, no cogent explanation has come forth from the petitioner as to why the application to place on record the document at a belated stage. The justification given in the application that registered Gift Deed was lying in the Trunk is not worth believing. 17. This Court cannot be oblivious to the fact that in exercise of its power of superintendence under Article 227 of the Constitution of India, it cannot interfere with the findings returned by the learned Court below, unless the findings are either perverse or there is a jurisdictional error committed by the learned Court below. 18. As this Court does not find any illegality, perversity or jurisdictional error with the impugned Order, the petition being devoid of any merit, is dismissed. Miscellaneous applications, if any, also stand disposed of, accordingly.