Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 567 (HP)

Moti Kapila v. Sanjay Kumar

2019-05-06

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, following reliefs have been prayed for:- “It is, therefore, prayed that impugned order dated 2.11.2018, Annexure P-4, passed by the Ld. Senior Civil Judge, Court No. 1, Una, in CMA under Order 8 Rule 1-A (3), titled Sanjay Kumar and another vs. Moti Kapila, whereby the application for placing on record the documents has been dismissed may be quashed and set aside and the petitioner may be held entitled to place on record the relevant documents, in the interest of justice. Any other relief, deeded proper in the facts and circumstances of the case may also be allowed.” 2. Brief facts necessary for adjudication of the present petition are that respondents herein have filed a suit for mandatory injunction against the present petitioner directing him to hand over the suit land as also for recovery of licence fee of Rs.2,30,000/-. Said suit was filed somewhere in the month of November/December, 2011. Written statement by the present petitioner was filed to the suit in the year 2012. 3. In the year 2018, when the suit was at the arguments stage, an application stood filed by the present petitioner/defendant under Order 8, Rule 1-A (3) of the Code of Civil Procedure (hereinafter referred to as the 'Code’) for permission to produce and prove on record certified copies of police complaint dated 15.09.2010 and police diary No. 28, dated 15.09.2010. A copy of the said application is appended on record as Annexure P-8. It stood mentioned in the said application that at the time of filing of the written statement, certified copies of the said documents were not in the hands of defendant nor were traceable in the record of Police Department and the same could only be traced and collected by the defendant by applying under Right to Information Act from the Una Police on 29.03.2018 and that too with great efforts. It further stood mentioned in the application that the application was filed in good faith and in a bonafide manner and without any unreasonable delay. 4. It further stood mentioned in the application that the application was filed in good faith and in a bonafide manner and without any unreasonable delay. 4. The application stood opposed on the ground that after the filing of the written statement on 07.06.2012, more than 6 opportunities were availed by the defendant to lead evidence and though the said documents were well within the knowledge of the defendant since the very inception of the suit, the same were not filed inter alia for the reason that the said documents have no relevance with the facts of the suit. It further stood mentioned in the reply that earlier also an application under Order 8, Rule 1-A (3) of the Code stood filed by the defendant on 17.09.2017 and the same was allowed as plaintiff had pleaded no objection qua the same. The stand of the plaintiff thus in the reply was that the application was filed just with the intent to delay the adjudication of the suit with malafide intention. 5. Said application stands rejected by the learned trial Court vide impugned order dated 02.11.2018. Learned trial Court while dismissing the application has held that the parties being alive of the matter in controversy had gone to trial and led their evidence and despite the fact that the documents were already in existence when defendant lead produced his evidence, he did not exercise due diligence at the appropriate stage of the case. It further held that earlier also similar application stood filed by the defendant and at that stage, documents which are now intended to be produced on record, could have been produced which the defendant failed to do. Learned trial Court further held that documents were not necessary to advance the case of the defendant and taking the same on record would further delay the case unnecessarily. It thus dismissed the application. 6. The order so passed by learned trial court has been assailed by the petitioner by way of this petition inter alia on the ground that learned Court below has erred in coming to the conclusion that the documents were not necessary for adjudication of the case as said documents were most important and relevant documents to substantiate the case of the defendant. Learned Counsel for the petitioner further argued that the documents pertained to the facts which already stood pleaded in the written statement and not allowing the same to be placed on record has resulted in grave miscarriage of justice as no prejudice could have been caused to the plaintiff in case said application would have been allowed. 7. On the other hand, learned Counsel for the respondent has argued that there is no perversity with the order passed by the learned Court below as the said Court has rightly rejected the application of the petitioner because the application in fact stood filed by the defendant just to delay the matter and there was no cogent explanation given as to why on earlier instances, said documents could not be placed on record. 8. I have heard learned Counsel for the parties and also gone through the impugned order as also the record of the case. 9. It is not in dispute that the suit was filed in the year 2011 and the written statement stood filed in the year 2012. It has also not been disputed that in 6 opportunities which were taken by the defendant to lead his evidence, no effort was made to place on record these documents. It is also a matter of record that in an earlier application filed under Order 8, Rule 1-A (3) of the Code by the present petitioner, which stood allowed by the learned Court below while placing on record some other documents, there was no whisper or request or mention of these particular documents. It was only at the stage of arguments that this application was filed on the pretext that earlier these documents could not be placed on record by the petitioner as the same were not traceable in the Police Department and same were traced only by applying under the Right to Information, Act. 10. Order 8, Rule 1-A (3) of the Civil Procedure Code provides that a document which ought to be produced in the Court by the defendant, but is not produced, shall not, without leave of the Court, be received in evidence on his behalf at the hearing of the suit. In fact, Rule 1- (A) of Order 8 of the Code deals with duty of the defendant upon which relief is claimed or relied upon by him. In fact, Rule 1- (A) of Order 8 of the Code deals with duty of the defendant upon which relief is claimed or relied upon by him. It lays the procedure as to how the documents upon which the defendant intends to rely to prove its case, have to be produced before the Court. The documents, permission to produce and prove on record qua whom was sought under application filed under Order 8, Rule 1A (3) of the Code, as per own case of the petitioner were obtained by him under the Right to Information Act. Though, there is a mention in the application that said documents were not traceable in the Police Department but there is no material on record to substantiate this fact. It is petitioner’s own case that he obtained said documents from the Police Department under Right to Information Act. If said documents were made available to the petitioner by the Police Department under Right to Information Act in March, 2018, it is not understood as to why the petitioner could not earlier obtain said documents under the provisions of the said Act since 2012, because it is not the case of the petitioner that earlier also, he had applied for said documents under the Right to Information Act but the same were not supplied to him by the department concerned. This demonstrates gross negligence on the part of the petitioner. The contention of learned Counsel for the petitioner that the order passed by the learned Court below suffers from perversity as learned Court should not have commented upon the relevance of the documents concerned, in my considered view, is immaterial because otherwise also, such an application could not have been allowed after the lapse of 8 years when delay in filing the application to bring on record the said documents has not at all been satisfactorily explained. It is apparent from the record that the petitioner has been grossly negligent in not taking appropriate steps to bring said documents on record and now at this stage, no indulgence in fact, can be shown to him by permitting him to produce on record the documents in issue, especially when the lis is pending adjudication since the year 2011 and the application was filed in the year 2018 at the stage of arguments of the suit. Accordingly, in view of above discussion, this petition is dismissed being devoid of merit. Pending miscellaneous application (s), if any, also stand disposed of. No orders as to costs.