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2021 DIGILAW 236 (UTT)

Rakesh Kandpal v. Neelam Kandpal

2021-04-12

ALOK KUMAR VERMA, R.S.CHAUHAN

body2021
JUDGMENT : Alok Kumar Verma, J. 1. This appeal is filed under Section 19 of the Family Courts Act, 1984 against the order dated 12.03.2021 passed by the learned Judge, Family Court, Kashipur, District Udham Singh Nagar, in Suit No. 462 of 2015, "Rakesh Kandpal vs. Smt. Neelam Kandpal", whereby the application, filed by the appellant-plaintiff to compare the hand-writing of the respondent-defendant in the pages of a dairy, which was produced by the appellant-plaintiff, along with his affidavit of examination-in-chief, was dismissed. 2. Short facts of the case are that the appellant and the respondent got married on 29.11.2011; from their wedlock, one female child was born in the year, 2013. The appellant-husband filed a divorce suit against the respondent, his wife, seeking dissolution of their marriage on the ground of cruelty available under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. It is alleged by the plaintiff in the plaint that his wife had a love affair with another prior to her marriage. She agreed to marry with him under the pressure of her family members. The behavior of his wife and her parental family members is cruel towards him. They usually demanded money from him. On 15.12.2013, his wife along with his minor daughter, jewellery, cash etc, left her matrimonial house. 3. The respondent-defendant, the wife of the appellant-plaintiff, filed her written statement. She denied all these allegations of the plaintiff. 4. After settlement of the issues, the plaintiff annexed the pages of a diary with his affidavit of examination-in-chief, purporting to contain the writing of his wife, in order to prove the non-willingness of his wife regarding marriage with him. The defendant-wife in her affidavit of examination-in-chief denied all the allegations of the plaintiff. Therefore, the plaintiff filed an application to summon a hand-writing expert to compare the handwriting of his wife. The defendant filed her objection. After hearing the learned counsel for both the parties, the learned trial court dismissed the said application by the impugned order. Aggrieved thereby, the appellant-plaintiff has preferred the present appeal. 5. Therefore, the plaintiff filed an application to summon a hand-writing expert to compare the handwriting of his wife. The defendant filed her objection. After hearing the learned counsel for both the parties, the learned trial court dismissed the said application by the impugned order. Aggrieved thereby, the appellant-plaintiff has preferred the present appeal. 5. The learned trial court dismissed the said application on the ground that the said documents were filed without giving any reason for non-filing of the documents at the appropriate stage; the plaintiff could not explain when and where from he had received the said documents; the plaintiff could not even explain why he did not make any statement, in his plaint, regarding the said documents; the decision of the suit does not depend on the proposed documents. 6. Heard Mr. Yogesh Upadhyaya, the learned counsel for the appellant, and perused the copies of the documents in question, which are available on the record. 7. Mr. Yogesh Upadhyaya, the learned counsel for the appellant, submitted that the appellant in his plaint mentioned the fact that the respondent had a love affair prior to the marriage with the appellant; she agreed to marry him under the pressure of her family members; the appellant filed the pages of a diary with his affidavit of examination-in-chief; the said pages of the diary were written by the respondent; the respondent denied her writing; the contents of the diary pages are clearly reflecting that the respondent got married with the appellant under the pressure of her family members; to prove his case, it is essential to obtain opinion of a handwriting expert. 8. Order 7, Rule 14 of the Code of Civil Procedure, 1908 deals with "Production of document on which plaintiff sues or relies", and Order 13 deals with "Production, Impounding and Return of Documents". These related provisions read as follows:- 9. Order 7, Rule 14 of the Civil Procedure Code, 1908 is quoted hereunder:- "14. Production of document on which plaintiff sues or relies.-(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. (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) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory." 10. Order 13, Rule 1 of the Civil Procedure Code, 1908 is quoted hereunder:- "1. Original documents to be produced at or before the settlement of issues.-(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement. (2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs. (3) Nothing in sub-rule (1) shall apply to documents- (a) produced for the cross-examination of the witnesses of the other party; or (b) handed over to a witness merely to refresh his memory." 11. The terms "Documents" and "Evidence" are interpreted by the Interpretation Clause under Section 3 of the Indian Evidence Act, 1872:- "Documents".-"Documents" means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. "Evidence".-"Evidence" means and includes- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence." 12. The "evidence" has been reduced to two heads; (i) Oral evidence; (ii) Documentary evidence. 13. A document, produced for the inspection of the Court, becomes evidence when it is found acceptable. A distinction must be drawn between admissibility of documentary evidence, and the manner of proof. The "evidence" has been reduced to two heads; (i) Oral evidence; (ii) Documentary evidence. 13. A document, produced for the inspection of the Court, becomes evidence when it is found acceptable. A distinction must be drawn between admissibility of documentary evidence, and the manner of proof. In other words, the document upon which reliance is placed by the party must be brought on record legally. 14. If any document or a copy could not be filed with the plaint under Order 7, Rule 14 of the C.P.C., it cannot be allowed to be received in evidence on behalf of the plaintiff at the hearing of the suit. However, such document may be received in evidence with the leave of the Court. Order 13, Rule 1 provides that the parties to produce all documentary evidences in original before settlement of issue. Order 7, Rule 14(4) of C.P.C. makes exception only in respect of those documents which are produced for the cross-examination of the plaintiff's witnesses, or handed over to a witness merely to refresh his memory; Order 13, Rule 1(3) of C.P.C. makes exception in respect of those documents which are to be handed over to a witness for refreshing his memory, or to which witness, may be confronted during cross-examination. 15. A party cannot be equated with a witness. Order 1 of C.P.C. deals with "Parties to Suits". The person who brings the suit is called "plaintiff" and the person who is being sued is called "defendant". Thus, the plaintiff and the defendant, together are called parties to the suit. During the trial, the parties normally call one or more witnesses to support their claim. This distinction is fortified by the language of Order 7, Rule 14(1) of C.P.C. which casts an obligation upon the plaintiff to produce the documents when the plaint is presented by him. Therefore, the rule is that if any document is to be produced by a plaintiff, the same is to be produced with his plaint. Subsequent production of a document can be done only if the Court is satisfied with the grounds explained for non-production of the document. 16. In the present case, the appellant had neither filed the said pages of the diary along with his plaint, nor filed any list of the said documents. Subsequent production of a document can be done only if the Court is satisfied with the grounds explained for non-production of the document. 16. In the present case, the appellant had neither filed the said pages of the diary along with his plaint, nor filed any list of the said documents. The said documents were annexed with his affidavit of examination-in-chief, without giving any reason for non-filing of the said documents at the appropriate stage. 17. The Family Court may receive evidence whether or not it would otherwise be relevant or admissible under the Indian Evidence Act, provided in its opinion, such evidence would assist it in effectively dealing with the dispute. The test for a Family Court to receive and admit documentary evidence in its subjective satisfaction that the evidence would assist it to deal effectively with the dispute. 18. The appellant has filed a divorce suit against the respondent on the ground of cruelty. According to the Clause (i-a) of sub-section 1 of Section 13 of the Hindu Marriage Act, 1955, a suit for divorce can lie at the instance of the husband, or the wife if the other party has, after the solemnization of the marriage, treated the plaintiff with cruelty. The case of the appellant is not that the respondent is still in a love affair with another and for this reason she still does not want to live with him, which constitutes cruelty to him. In these circumstances, the learned trial court has expressed its subjective satisfaction that the decision of the suit does not depend on the proposed documents. 19. In view of the above detailed discussions, this Court does not find any merit in the present appeal. Therefore, the appeal is liable to be dismissed at the admission stage. 20. For the reasons stated above, the appeal is dismissed.