Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 780 (HP)

Veena Sood v. Ramesh Kumar Sood

2019-06-26

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, Judge: By way of this petition, the petitioner has assailed order dated 07.09.2018, passed by the Court of learned Civil Judge, Court No. 3, Shimla in Civil Suit No. 371-1 of 18/8, vide which, an application filed by her, who is the plaintiff before the learned Trial Court under Order 7 Rule 14 read with Section 151 of the Code of Civil Procedure for placing on record certain documents and proving the same by leading additional evidence, has been dismissed. 2. Brief facts necessary for the adjudication of present petition are as under: Petitioner/plaintiff (hereinafter referred to as =the plaintiff') has filed a suit for declaration that she has inherited the estate of Smt. Durga Devi @ Durgi Devi and defendants have no right, title or interest in the estate of Smt. Durga Devi and for permanent prohibitory injunction for restraining the respondents/defendants (hereinafter referred to as =the defendants') or any other person claiming through or under the defendants any right, title or interest over the estate of Durga Devi and from interfering with or managing the estate of Durga Devi. 3. In these proceedings, plaintiff filed an application under Order 7 Rule 14 read with Section 151 of the Code of Civil Procedure for placing on record certain documents and for proving them by leading additional evidence. As per the plaintiff, though she had examined 15 witnesses, however, one witness cited from the office of Medical Superintendent IGMC, Shimla had intentionally not brought the summoned record and made false statement that the record summoned by the plaintiff was not maintained in the hospital. As per plaintiff, in this regard, she filed an application under Right to Information Act and sought information from PIO of IGMC, Shimla. Her application was initially rejected on 06.07.2015 by the PIO. Appeal filed by her against the said order was also rejected on 08.09.2015. Feeling aggrieved, she preferred a second appeal before the State Information Commissioner, which was allowed on 09.03.2016 and information sought by her was supplied to her (plaintiff) on 06.04.2016. After receipt of the said information, she filed the application intending to place the said documents on record with a prayer for permission to prove the same in accordance with law. Feeling aggrieved, she preferred a second appeal before the State Information Commissioner, which was allowed on 09.03.2016 and information sought by her was supplied to her (plaintiff) on 06.04.2016. After receipt of the said information, she filed the application intending to place the said documents on record with a prayer for permission to prove the same in accordance with law. The details of the documents are spelled out in para-6 of the application, which are as under: ?a. Photostat copy of the application filed by the applicant under R.T.I. Act. b. Photostat copy of the order dated 06.07.2015 passed by PIO, IGMC, Shimla, H.P. c. Photostat copy of the Appeal filed by applicant before Principal-cum- Appellate Authority, IGMC, Shimla, H.P. d. Photostat copy of the order dated 08.09.2015, passed by Principal-cum- Appellate Authority, IGMC, Shimla, H.P. e. Photostat copy of the Second Appeal filed by applicant before Ld. State Information Commissioner, Shimla, H.P. f. Certified copies of the information pertaining to Smt. Durga Devi supplied by PIO (20 pages). And order dated 09.03.2016 passed in Appeal No. 0400/2015-16.? 4. As per the plaintiff, the documents supplied by the PIO, IGMC, Shimla were relevant to decide the controversy and the same were necessary to prove her case. It was also mentioned in the application that as the documents were supplied to the plaintiff under the Right to Information Act, there was no chance of the same being manufactured or otherwise. 5. The application was resisted by the non-applicants, inter alia, on the ground that the same was filed at a highly belated stage with malafide intent. Filing of the application was an afterthought and the same was based on record which appeared to have been fabricated in order to create false evidence. As per respondent, plaintiff had summoned witnesses from IGMC, Shimla alongwith record of admission and death of Smt. Durga Devi. The witness in issue Shri Madan Singh Chauhan, Senior Assistant from IGMC, Shimla was examined as PW-15 on 20.02.2015 and had categorically stated in his statement that no record with respect to handing over of the dead body was maintained in IGMC nor any such entries were there in the original record. It was further mentioned in the reply that had there been record with respect to handing over of the dead body of late Smt. Durga Devi existed, then the plaintiff should have filed it alongwith the suit. It was further mentioned in the reply that had there been record with respect to handing over of the dead body of late Smt. Durga Devi existed, then the plaintiff should have filed it alongwith the suit. It was further mentioned in the reply that the plaintiff could not be permitted to take undue advantage of her own negligence and lapses and permitted to fill up lacunae. 6. This application had been dismissed by way of impugned order. While dismissing the application, learned Trial Court has held that in case the application was allowed, then the documents sought to be placed on record being per se not admissible, would have to be proved by examining witnesses, who would have to step in the witness box and that it would amount to relegating the clock to the date, i.e., 24.06.2015, when plaintiff's right to produce evidence was closed. It further held that allowing the application would amount to re-opening of the case. Documents intended to be placed on record were not relevant for deciding the dispute. Fact regarding handing over the dead body of Durga Devi or pertaining to her admission/discharge from the hospital had little relevance in ascertaining the issues involved in the suit. Learned Court also held that there was no law or rule that only a person who was related to a dead person could claim the body. It further held that in what manner said facts would prove adoption of the plaintiff was also not stated by her and therefore also, the documents intended to be placed on record were not important. 7. Be that as it may, 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. As per record, on 24.06.2015, an adjournment was sought by the plaintiff to lead further evidence, however, the request was declined by the learned Trial Court and evidence was ordered to be closed and said order when assailed before this Court, was upheld vide order dated 04.09.2015. 9. 8. As per record, on 24.06.2015, an adjournment was sought by the plaintiff to lead further evidence, however, the request was declined by the learned Trial Court and evidence was ordered to be closed and said order when assailed before this Court, was upheld vide order dated 04.09.2015. 9. Order 7 Rule 14 (3) of the Code of Civil Procedure provides that 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 plaint. 10. Coming to the facts of the present case, the application under Rule 14 of Order 7 of the Code was, inter alia, filed to place on record documents which were obtained by the plaintiff under the Right to Information Act. These documents were provided to her under the Right to Information Act, pursuant to her second appeal having been allowed by the State Information Commissioner on 09.03.2016. In other words, after the second appeal of the petitioner/plaintiff was allowed on 09.03.2016, the documents were supplied to her under the Right to Information Act on 06.04.2016. The application was filed by her to place them on record and to prove the same by leading additional evidence on 26.04.2016, meaning thereby that the application was filed within a month of the receipt of documents. 11. The genesis of the filing of the application was that PW-15-Madan Singh Chauhan, who was a witness sited from the office of Medical Superintendent, IGMC, Shimla had intentionally not brought the summoned record and had made false statement that the record summoned by the plaintiff was not maintained by IGMC, Shimla. As per the plaintiff, now as the said record was supplied to her, the same be allowed to be taken on record and proved as per law. 12. It has not been disputed that PW-15, i.e., witness from the office of Medical Superintendent, IGMC, Shimla had not brought the requisitioned record and had stated in the Court that no such record was maintained at IGMC, Shimla. 12. It has not been disputed that PW-15, i.e., witness from the office of Medical Superintendent, IGMC, Shimla had not brought the requisitioned record and had stated in the Court that no such record was maintained at IGMC, Shimla. It is not in dispute that the record which was called from IGMC, Shimla inter alia pertained to the admission of deceased Smt. Durga Devi in the hospital and handing over of her dead body after her death. Incidentally, a perusal of the reply filed by the non-applicants, who were opposing the said application demonstrates that the stand taken by the non-applicants in the reply was that the filing of the application was just an afterthought, as the plaintiff intended to fill up lacunae and further that the documents which were intended to be placed on record appeared to have been fabricated in order to create false evidence. 13. Learned Trial Court while dismissing the application erred in not appreciating that prayer of the plaintiff was to place those documents on record, which as per her, PW-15 had intentionally not brought on record by wrongly stating in the Court that said record was not available in the hospital and said application was opposed by the nonapplicants on the ground that the plaintiff wanted to fill up the lacunae in her case and the documents appeared to be fabricated. 14. Learned Court erred in not appreciating that when the requisitioned record summoned through PW-15 was not brought, it could not be said that the plaintiff was trying to fill up lacunae in her case. It erred in not appreciating that there was no merit in the contention of the non-applicants that the documents, which plaintiff intended to place on record were fabricated documents, as the documents which were intended to be placed on record, admittedly, were those which had been provided to her under the Right to Information Act. This demonstrates that learned Trial Court has not dealt with the application upon proper appreciation of the contention made in the application as also in the reply. Learned Trial Court was more influenced and swayed by the fact that on an earlier date, i.e., on 24.06.2015, said Court had rejected the request of the plaintiff for grant of opportunity by way of adjournment to lead evidence and that said order on challenge, had been upheld by this Court. Learned Trial Court was more influenced and swayed by the fact that on an earlier date, i.e., on 24.06.2015, said Court had rejected the request of the plaintiff for grant of opportunity by way of adjournment to lead evidence and that said order on challenge, had been upheld by this Court. Learned Trial Court erred in not appreciating that as the information stood supplied to the plaintiff after 24.06.2015, therefore, said order had no bearing with the prayer which was made by the plaintiff in application filed under Order 7 Rule 14 of the Code. 15. It is settled law that on a 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 the party was leading evidence, the Court may permit leading of such evidence at a later stage on such terms as may appear to be just {See Salem Advocate Bar Association, TN. Vs. Union of India, (2005) 6 Supreme Court Cases 344}. 16. In the present case, the plaintiff had spelled out cogent reasons as to why the documents, which she intended to place on record, could not be placed on record earlier. In this background, the findings returned by the learned Trial Court that the application filed by the plaintiff could not be allowed as the same would relegate the Clock back to the date, i.e., 24.06.2015 are perverse findings, especially in view of the fact that the documents which the plaintiff intended to place on record were not in her possession as on 24.06.2015 when her request for adjournment to lead evidence was denied by the learned Court below. The subsequent findings returned by the learned Trial Court that the documents were not important and had no relevance with the controversy, subject matter of the lis between the parties, in my considered view, were totally uncalled for, because learned Court should not have ventured into the said area while dismissing the application of the plaintiff on other grounds. 17. Accordingly, as this Court is of the view that the impugned order is per se bad and not sustainable in the eyes of law, this petition is allowed and the impugned order dated 07.09.2018 is ordered to be set aside. 17. Accordingly, as this Court is of the view that the impugned order is per se bad and not sustainable in the eyes of law, this petition is allowed and the impugned order dated 07.09.2018 is ordered to be set aside. As a natural corollary, the application filed by the plaintiff under Order 7 Rule 14 of the Code of Civil Procedure is allowed and the documents appended with the same are ordered to be placed on record. Learned Trial Court is directed to permit the plaintiff to prove the documents in accordance with law. This, however, will be subject to payment of cost of Rs.5000/- by the plaintiff to the defendants. 18. Parties are directed to appear before the learned Trial Court on 22nd July, 2019. The petition stands disposed of, so also pending miscellaneous applications, if any.