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Madhya Pradesh High Court · body

2019 DIGILAW 96 (MP)

Sudheer Jain v. Sunil Modi

2019-01-29

G.S.AHLUWALIA

body2019
ORDER 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 30.8.2017 passed by First Additional Judge to the Court of First Civil Judge, Class-II, Vidisha in COC No. 82-A/2015, by which the application filed by the petitioners under Order 7 Rule 14(3) of CPC has been rejected and the trial Court has refused to take the partition deed on record on the ground that by order dated 14.6.2016, the petitioners were directed to file all the documents pertaining to their title and since they have failed to do, therefore, now they cannot be allowed to file the additional documents. 2. The necessary facts for the disposal of the present petition in short are that the plaintiffs/petitioners have filed a suit for permanent injunction as well as for enforcement of their easementary rights. 3. It appears that on an application filed by the respondents, the trial Court by order dated 14.6.2016, had directed the petitioners to file all the documents pertaining to their title and also to file an affidavit, otherwise, they would not be given any opportunity to file the same in view of section 164 of the Indian Evidence Act. 4. The petitioners did not file the partition deed in compliance of order dated 14.5.2016. However, later on, the petitioners filed an application under Order 7 rule 14 of CPC seeking leave of the Court to file a partition deed. The said application has been rejected by the impugned order by holding that the petitioners were already in possession of partition deed even on the date of order dated 14.6.2016, but the said order was not complied with, and no explanation has been given for not filing the documents on earlier occasion. 5. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioners that undisputedly, till 30.8.2017 no issues were framed even today, no issues have been framed so far. section 164 of the Evidence Act does not create an absolute bar. Similarly, the order under Order 7 rule 14(3) of CPC also gives discretion to the Court to grant leave to the plaintiff to file the documents at a later stage. The partition deed cannot be said to be a document of title and thus, it is incorrect to say that the petitioner has violated the order dated 14.6.2016. Similarly, the order under Order 7 rule 14(3) of CPC also gives discretion to the Court to grant leave to the plaintiff to file the documents at a later stage. The partition deed cannot be said to be a document of title and thus, it is incorrect to say that the petitioner has violated the order dated 14.6.2016. Thus, it is submitted that as earlier there was no direction to the petitioner to file the partition deed, therefore, the provision of section 164 of the Evidence Act would not be applicable to the facts and circumstances of the case. 6. Per contra,it is submitted by the counsel for the respondents that the petitioner had failed to place all the necessary documents on record in compliance of the order dated 14.6.2016, therefore, the trial Court has not committed any mistake in refusing to grant leave to the petitioners to file the additional documents. However, it is fairly conceded by the counsel for the respondents that even till today, no issues have been framed. 7. Heard the learned counsel for the parties. 8. The order dated 14.6.2016 has not been placed on record, however, the copy of the same was provided to the Court. By order dated 14.6.2016, apart from the other documents, the petitioner was also directed to file all the documents relating to their title and it was observed that in case if there is any failure on the part of the petitioner to comply the order, then provision of section 164 of the Evidence Act would apply. 9. Before proceeding further, this Court feels it appropriate to consider the implication of section 164 of the Evidence Act which reads as under:- ''164.Using, as evidence, of document, production of which was refused on notice.-When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.'' From the plain reading of section 164 of the Evidence Act, it is apparent that when a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document without the consent of the parties or order of the Court. Thus, it is clear that the bar as contained in section 164 of the Evidence Act is not absolute. Thus, it is clear that the bar as contained in section 164 of the Evidence Act is not absolute. The opposite party can waive its rights to object the filing of document at a later stage by giving express consent to the same, and similarly, the words "or the order of the Court" gives discretion to the Court to grant leave to file such documents. Therefore, when any provision gives discretion to the Court, then it should be exercised judiciously. The Supreme Court in the case of Central Bank of India v. Ravindra, reported in (2002) 1 SCC 367 , has held as under : 55.8......The discretion shall be exercised fairly, judiciously and for reasons and not in an arbitrary or fanciful manner. 10. Thus, it is clear that the bar as contained under section 164 of the Evidence Act is not absolute and it still gives discretion to the Court to permit the defaulter party to produce the documents at a later stage which he has had notice to produce. In the present case, the Court has not exercised its discretion and has not given a finding as to why the petitioners cannot be permitted to place the partition deed on record at a later stage, specifically when, even the issues have not been framed so far, therefore, no prejudice would be caused to the respondents. Order 7 rule 14 (3) of CPC reads as under : ''Order 7 Rule 14: Production of document on which plaintiff sues or relies (1)xxxxxxxxxxxxxxxx (2)xxxxxxxxxxxxxxxx (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. (4)xxxxxxxxxxxxxxxx 11. From the plain reading of the above provision, it is clear that the plaintiff can file the documents at a later stage with the leave of the Court. Thus, it is clear that section 164 of the Evidence Act as well as Order 7 rule 14(3) of CPC, gives discretion to the trial Court to grant leave to the plaintiff to file the documents at a later stage. introduced Santoshibai as Radhabai and got loan sanctioned. Thus, it is clear that section 164 of the Evidence Act as well as Order 7 rule 14(3) of CPC, gives discretion to the trial Court to grant leave to the plaintiff to file the documents at a later stage. introduced Santoshibai as Radhabai and got loan sanctioned. After investigation, charge-sheet has been filed against the accused including the applicant Shriram Patidar. 3. Learned Fourth Additional Sessions Judge, West Nimar, Khargone vide order dated 11.5.2018 framed charges under sections 420/34, 467/34, 468/34, 471/34, 120-B and 406 of the IPC against the applicant alongwith other co-accused persons. 4. Against this order, criminal revision has been preferred. In the grounds mentioned in the criminal revision, it has been stated that there is no other evidence against the applicant apart from the memorandum recorded under section 27 of the Evidence Act, which is memorandum of co-accused, which is inadmissible against the applicant. 5. The Court's attention was also brought to the order passed by the Co-ordinate Bench, which is based on identical facts and the same having been passed in Cr. R. No. 2313/2018 in the case of Vinod Patidar v. State of MP on 5.9.2018. 6. In that case, identical fraud was played with the Syndicate Bank, Khargone by the same set of accused persons taking loan in the name of Radhabai (same deceased lady as in this case). In that case also, there was no evidence apart from the memorandum recorded under section 27 of the Evidence Act. In that case, a reference was made to Privy Council decision in the case of Pulukuri Kottaya vs. Emperor reported in AIR 1947, P.C. 67, in which it was held that unless there is discovery of fact, statement made under section 27 of the Evidence Act has not evidentiary value and on that basis, the accused was discharged. 7. In the case in hand, investigation has been carried out in a manner identical to that referred to in the case of Vinod Patidar (supra). There is no evidence against the applicant Shriram Patidar, apart from the memorandum recorded under section 27 of the Evidence Act by the accused. Had there been any evidence corroborating the facts contained in the memorandum, that would have been admissible against the applicant Shriram Patidar. There is no evidence against the applicant Shriram Patidar, apart from the memorandum recorded under section 27 of the Evidence Act by the accused. Had there been any evidence corroborating the facts contained in the memorandum, that would have been admissible against the applicant Shriram Patidar. However, the applicant who claims to have received a portion of the loan amount has not been subjected to any other investigation as such seizure of money from him. Further, no other evidence is available apart from his own memorandum thus, there is no discovery of facts on the basis of statements made under section 27 of the Evidence Act. Hence, no offence is made out against the applicant and, therefore, charges under sections 420/34, 467/34, 468/34, 471/34, 120-B and 406 of the IPC cannot be sustained. 8. Resultantly, in view of the discussions above, this criminal revision is liable to be allowed and is hereby allowed and the order framing charges under sections 420/34, 467/34, 468/34, 471/34, 120-B and 406 of the IPC against the applicant is set aside and the present applicant stands discharged against the charges. 9. A copy of this order be sent to the Trial Court for information and necessary compliance. Certified copy, as per rules.