Rajasthan High Court - Jodhpur
Jagdish Prasad vs . on 14 October, 2015
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:ORDER:
S.B. CIVIL WRIT PETITION NO.2865/2014
Jagdish Prasad
vs.
Om Prakash & Ors.
Date of Order :: 14th October, 2015
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. M.R. Singhvi, Senior Advocate assisted by
Mr. Bhavit Sharma, for the petitioner.
Mr. Narendra Thanvi )
Mr. B.K. Vyas ) for the respondents.
----
BY THE COURT:
This writ petition under Article 227 of the Constitution of India has been filed by the petitioner-defendant No. 1 against order dated 21.01.2014 passed by the trial court, whereby, the application filed by the petitioner-defendant No. 1 under Section 151 CPC and Section 44 of the Indian Evidence Act, 1872 ('Evidence Act') has been dismissed.
The petitioner filed an application on 27.05.2013 seeking recall of the order dated 10.03.1995 passed on an application filed by the plaintiffs under Section 65 of the Evidence Act, whereby, they were permitted to lead secondary evidence qua Will dated 18.04.1969; it was, inter alia, indicated in the application that High Court in S.B. Civil Writ Petition No. 4595/2007 between the same parties by order dated 07.01.2008 has rejected secondary evidence qua the said Will and so called original Will has been produced by the plaintiffs in suit Ram Vilas v. Aidan; the plaintiffs based on false averments and despite the Will 2 being in their possession, claiming the same to have been destroyed, had fraudulently obtained permission to lead secondary evidence by order dated 10.03.1995, whereas, it is settled law that in presence of original document, permission for leading secondary evidence cannot be granted; the High Court between the same parties in another suit has rejected permission to lead secondary evidence and for same document two different orders would be unjustified; the plaintiffs had suppressed the original document and as per order of the High Court, secondary evidence cannot be led, which order is binding on the trial court; the order has been obtained fraudulently and is nullity in law and, therefore, the order dated 10.03.1995 be recalled.
The application was opposed by the plaintiffs and the trial court after hearing the parties, came to the conclusion that there was no provision under the Code of Civil Procedure to recall the order passed earlier; the suit was pending since 1978 and was at the stage of final arguments; the application has been filed by the defendant to delay the suit and consequently rejected the same.
It is submitted by learned counsel for the petitioner that the suit was filed on 04.07.1978 by the plaintiffs being C.O. No. 36/1980 (Om Prakash & Anr. v. LRs of Aidan & Ors.) claiming succession on the basis of the Will executed in their favour by Kishnoji on April 18, 1969; in the suit it was indicated that original Will along with copy was produced; in the list of documents, it was indicated that photo copy of the Will was being filed.
During the pendency of the suit, an application dated 10.03.1995 was filed under Section 65 of the Evidence Act; wherein it was claimed that plaintiffs had produced photo copy of the Will along with the suit 3 and the original Will was with plaintiffs' father - Shri Jugraj and the original Will was got compared with photo copy and whereafter the original Will was kept in an Almirah, however, the said original Will has been eaten away by termites; has been destroyed and is not legible, therefore, the plaintiffs may be permitted to lead secondary evidence; the application was allowed by the trial court on the same day i.e. 10.03.1995 on payment of cost of Rs. 500/-.
Whereafter an application was filed by the defendant-petitioner, inter alia, indicating that an enquiry be held that how original Will, which was produced allegedly along with the suit was lost, which application was rejected by the trial court on 16.09.2006.
In another suit being C.O. No.46/1980 filed by Ram Vilas, wherein it was claimed that he was adopted son of late Kishnoji, who was Pujari of the temple and prayed for a declaration that plaintiff is entitled to perform Sewa Puja and receive the offerings as adopted son and he was only heir of Kishnoji; in the said suit, to which, the petitioner is also a party, when the present respondents Om Prakash and Pukhraj produced affidavits in evidence and relied on the copy of the Will dated 18.04.1969, an objection was raised by the petitioner, who was also a defendant in the said suit, based on the fact that the similar objection/application filed by him had already been allowed by the trial court by its order dated 27.05.2006, the application was partly allowed by the trial court by holding that as permission had already been granted on 10.03.1995 for leading secondary evidence on an application filed by Om Prakash and Pukhraj, the same should be treated to be in compliance of order dated 27.05.2006 and the affidavits filed earlier would be taken into consideration. 4
Feeling aggrieved, petitioner Jagdish Prasad filed S.B. Civil Writ Petition No. 855/2007, wherein, on a direction issued by the Court, learned counsel for Om Prakash showed the original Will before the Court and based on that this Court by order dated 01.05.2007 directed Om Prakash to produce the same before the trial court 'in whatever condition it is' and based on the said direction the writ petition was disposed of.
Whereafter the trial court by its order dated 21.07.2007 rejected another application filed by the petitioner seeking to prevent the defendant from exhibiting the Will.
Feeling aggrieved, the petitioner again filed S.B. Civil Writ Petition No. 4595/2007, wherein, by order dated 07.01.2008 the writ petition was allowed and the order of the trial court dated 21.07.2007 was quashed and set aside while observing that as the original Will has now been produced in the trial court, there is no occasion to take in secondary evidence in the form of photo copy of the same document in question viz. the Will.
It is submitted by learned counsel for the petitioner that as in the present case order dated 10.03.1995 was passed by the trial court accepting application under Section 65 of the Evidence Act, in C.O. No. 46/1980 (Ram Vilas v. LRs of Aidan) also an order dated 10.03.1995 was passed accepting the application under Section 65 of the Evidence Act; the plea raised in both the cases was identical i.e. the original Will has been eaten away by the termites and, therefore, they may be permitted to lead secondary evidence qua the said document; therefore once this Court in identical facts between the same parties has directed production of original document i.e. Will 5 dated 18.04.1969 based on its existence, the direction based on the absence of the document cannot be taken into consideration and the same therefore is of no use; it was further submitted that the order dated 10.03.1995 was obtained by suppressing material facts regarding the existence/non-existence of the document and from the subsequent conduct in Suit No. 46/1980 it is apparent that such original Will in whatever condition was directed to be produced before this Court, the respondents cannot be permitted to take advantage of the plea raised about absence of original Will and, therefore, the order dated 10.03.1995 should have been recalled by the trial court; the trial court has chosen not to deal with the plea raised by the petitioner and has in a very cursory manner rejected the application.
Submissions were also made with reference to provisions of Order VII, Rule 14, Order XIII, Rule 9 CPC and Rule 59 of General Rules Civil to question the filing of photo copy along with the plaint and its comparison.
Reliance was placed on S.P. Chengalvarya Naidu v. Jagannath & Ors. : (1994) 1 SCC 1, A.V. Papayya Sastry & Ors. v. Govt. of A.P. & Ors. :(2007) 4 SCC 221 and Union of India & Ors. v. Ramesh Gandhi :
(2012) 1 SCC 476.
Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioner; it was submitted that the application was filed by the petitioner alleging suppression and/or fraud on part of the respondents, which allegations are wholly baseless and, therefore, the order impugned does not call for any interference; it was submitted that the order was passed way back on 10.03.1995, whereafter evidence was led and the Will in 6 question was marked as exhibit by the trial court and the present application has been filed by the petitioner after a passage of over 19 years only with a view to some how delay the inevitable; it is submitted that the application was allowed on 10.03.1995 permitting the respondents to lead secondary evidence on payment of cost of Rs. 500/-, which cost was received by the petitioner; it was submitted that a look at the document, which has been produced pursuant to the order passed by this Court in S.B. Civil Writ Petition No. 855/2007 would reveal that the same is almost non-existent and can only be described as destroyed and, therefore, the provisions of Section 65(c) of the Evidence Act would be applicable and in fact the respondents had made a specific plea in this regard and, therefore, it cannot be said that the allegations made by the petitioner has any substance regarding fraud having been committed by the respondents and, therefore, the order passed by the trial court does not call for any interference under Article 227 of the Constitution of India.
With reference to the orders dated 01.05.2007 and 07.01.2008 passed by this Court in petitions filed by Jagdish Prasad, it was submitted that the said orders have to be read in the context in which, they were passed and the same cannot operate so as to decide the fate of the present case and, therefore, the said orders have no implication in so far as the present case is concerned and, therefore, the writ petition deserves to be dismissed.
I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record along with records of both the suits being Civil Original Suit Nos. 36/1980 and 46/1980.
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From the perusal of record in C.O. No. 36/1980, it is apparent that in the plaint the plaintiffs indicated filing of the original Will and a copy thereof along with the plaint; it is also true that in the list of documents, there is a reference of producing the photo copy only. However, the document i.e. the photo copy of the Will bears a specific endorsement on both the sides of the document as under:-
"मल दस वज स ममल न क य ज सह प य गय ।
सह द व न मलपप ममसफ एव नय यय मजजस!ट ओस य "
On 20.08.1982 as is reflected from the order-sheet, the trial court had directed that the plaintiffs must get their documents compared and the counsel for the defendant also stated that till such time the documents are compared the evidence cannot be led; whereafter on 17.09.1982 the evidence of plaintiffs' witness Om Prakash started, which was kept reserved; whereafter it appears that the plaintiffs filed application dated 10.03.1995, inter alia, specifically indicating that photo copy of the Will was produced along with suit and the same was also got compared, however, in the meanwhile the original was eaten away by termites and the same was not legible and sought permission to lead secondary evidence.
The application was allowed on the same day by order dated 10.03.1995, which reads as under:-
"व ल य फर न उप०।
व 'ल व द न लगभग 2 वर* पत वल म, स कय ह अवसर ल र
आज ध र 65 I.E.A. ' दर० पश ' व ददन 18.4.69 वस य न म
ददमग द र नष र दन ब य । शपथ पत पश हआ। व 'ल पय व द इस
आवदन घ र पवर ध र ह: । पक र< सन गय । वस य न म ' फ ट
पय नय य लय स मपर सद पत वल पर ह: अ : व द पर ल परव ह '
सट Rs 500/- लग ई ज ह: । व द द र पस 65 I.E.A. ' दर०
सव र ' ज ह: । व द स कय अय म अवसर ददय ज ह: पत वल
व स स कय व द 31-3-95 पश ह । सन य पव* Cost Rs 100 अद हई।"
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Whereafter, the cost was accepted, the document i.e. the photo copy of the Will dated 18.04.1969 was exhibited as Exhibit-2 during the statements recorded on 31.03.1995 and the matter thereafter remained pending.
At this st0age it may be noticed that in a revision petition being S.B. Civil Revision Petition No. 56/1991 filed by Jagdish Prasad against order passed by the trial court in suit filed by Ram Vilas seeking consolidation of both the suits, by order dated 04.10.1991 though the application for consolidation was rejected, the trial court was directed to take up the cases together on the same day and it was directed to decide the suits on the same day by separate judgments.
It appears that while no material progress took place in the present suit C.O. No. 36/1980, qua the document Exhibit-2 in connected suit C.O. No. 46/1980, when the respondents sought leading of secondary evidence qua the Will by way of filing affidavits in evidence, apparently in ignorance of order dated 10.03.1995 permitting leading of secondary evidence passed in the said suit as well, an order was passed by the trial court directing that till the original Will Exhibit-A/1 was not produced, the affidavit to the said extent would not be read; whereafter when again affidavits were filed by the respondents, objections were raised by petitioner and the order dated 06.01.2007 came to be passed, wherein, based on the order dated 10.03.1995 permitting leading of secondary evidence, the respondents herein were permitted to lead evidence; the petitioner filed S.B. Civil Writ Petition No. 855/2007, wherein, this Court in its order dated 01.05.2007 observed and directed as under:-
"When the matter came up, it was heard from 2nd April, 2007 9 onwards, and during course of hearing, Mr. Thanvi learned counsel for the respondent was directed orally to find out, and make available for perusal of the Court the original Will, in whatever condition it may be, and on the last date of hearing being 27.4.2007, learned counsel had shown the document. In that view of the matter, since the original is available with the respondent, I think it appropriate to direct the respondent to produce in the trial Court the original Will in whatever condition it is.
In that view of the matter, since the original is being produced, obviously the objection raised in Annex.8, about making on the copy, in absence of original, no more survives. That being the position, the portions of the affidavit obviously cannot be deleted, and thus, the order does not require any interference.
The writ petition is, accordingly, disposed of."
Whereafter when again the objections were raised by the petitioner before the trial court, the trial court rejected the objections by order dated 21.07.2007; the petitioner filed S.B. Civil Writ Petition No. 4595/2007, which came to be allowed by order dated 07.01.2008, in which, it was observed and held by this Court as under:-
"6. In the opinion of this Court, in view of the subsequent developments in the case at the time of hearing of earlier writ petition No.855/2007 decided on 1.5.2007, in view of the fact that the original Will was produced by the respondents before this Court and later on in pursuance of directions of this Court before the trial Court, there is no occasion for the trial Court to take in evidence secondary evidence in the form of photo copy of the Will in question. It is needless to say that when primary evidence is available, no secondary evidence can be led.
7. The secondary evidence can be produced before the Court only in the circumstances narrated in Section 65 of the Indian Evidence Act. Clause (c) of Section 65 stipulates that when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time, such secondary evidence can be produced.
8. In view of the aforesaid fact situation that the original Will has now been produced in the trial Court, there is no occasion to take in secondary evidence in the form of photo copy of the same document in question, namely, the Will. Therefore, the trial Court has erred in rejecting the application of the present petitioner by the impugned order dated 21.7.2007.
9. Accordingly this writ petition is allowed and the impugned order of the trial Court dated 21.7.2007 is quashed and set aside. No order as to costs. Let the trial of the suit be expedited by the trial Court."10
The petitioner thereafter filed application dated 15.11.2008 for taking on record the orders passed in connection with C.O. No. 46/1980, which was allowed by order dated 16.05.2013 and whereafter the present application was filed on 27.05.2013 seeking recall of the order dated 10.03.1995.
The sum and substance of the application filed by the petitioner has been that the order dated 10.03.1995 was obtained fraudulently and once the orders have been passed by this Court in connection with suit C.O. No. 46/1980 pertaining to the same document, there cannot be two different orders qua the same document.
Hon'ble Supreme Court in A.V. Papayya Sastry (supra) while defining fraud held as under:-
"26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of "finality of litigation" cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants."
Hon'ble Court has summed up the definition of fraud as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another and that in fraud one gains at the loss of another.
In the present case as already observed hereinbefore, the plaintiffs had filed copy of the Will along with the plaint, objection was raised by the defendant regarding the document having not been compared at the time when evidence was sought to be led, the Will Exhibit-2 shows endorsement of the civil clerk of the trial court regarding the same having been compared with the original, 11 application dated 10.03.1995 was filed by the petitioner giving out the fact that compared copy of the Will is available on record and the original Will has been eaten away by termites and, therefore, they may be permitted to lead secondary evidence; the petitioner chose not to file reply to the application, the application was allowed on payment of cost of Rs. 500/- which cost was accepted by the petitioner and whereafter the document was marked as Exhibit-2 on 31.03.1995 and the matter proceeded thereafter; this Court does not find any element of fraud, deceit, misrepresentation, wrong facts having been alleged and/or any act having been committed by the respondents so as to bring the same within the parameters of fraud having been committed by the petitioners so as to vitiate the order dated 10.03.1995 passed by the trial court on account of alleged fraud.
The submissions made based on provisions of Order VII, Rule 14, Order XIII, Rule 9 CPC and Rule 59 of the General Rules Civil have no substance. No such plea was raised in the application dated 27.05.2013 and it is too late in the day for the petitioners to raise the said aspects after the plaint was presented in 1978, the document was compared in 1982; permission to lead secondary evidence was granted on 10.03.1995 and the document was marked as exhibit without any objection on 31.03.1995.
So far as the orders passed by this Court in connection with C.O. No. 46/1980 are concerned, it would be noticed that the Court while passing the order dated 01.05.2007 in S.B. Civil Writ Petition No. 855/2007 emphasized the aspect that original Will "in whatever condition it may be" be produced before the trial court and this Court consequently dismissed the objections raised by the petitioner; 12 whereafter by order dated 07.01.2008 in second round, as noticed, the Court based on the fact that under the direction dated 01.05.2007 original Will, in whatever condition it was, had been produced, held that secondary evidence could not be led.
I have perused the document, which has been produced by the respondents pursuant to the direction dated 01.05.2007 passed by this Hon'ble Court "in whatever condition it may be", the document as noticed by the trial court in its order-sheet dated 05.05.2007 (part of Annexure-15) is a piece of the document (Will) having been laminated; once the document in question was claimed by the respondents way back in 1995 as having been eaten away by termites, which was reduced to the condition, in which, the document presently is, it cannot be said that the directions issued by this Court on 01.05.2007 and subsequent order dated 07.01.2008 passed by this Court setting aside the order passed by the trial court would be read to mean that the termites eaten pieces of the Will, duly compared photo copy of which is available on record, only would be read and the complete document regarding which the secondary evidence had already been permitted would not be read. Even otherwise passing of such a direction would be wholly unjustified in the facts and circumstances of the present case.
So far as judgments in the case of S.P. Chengalvarya Naidu (supra) and Ramesh Gandhi (supra) are concerned the pre requisite for application of the law laid down in the said judgments is finding of fraud having been committed by the respondents, however, as observed hereinbefore, there is no iota of material available to come to the conclusion that respondents have in any manner committed fraud, 13 therefore, the judgments have no application to the facts of the present case.
In view of what has been discussed hereinbefore, though the trial court was not justified in dismissing the application merely on the ground of delay, the application even on merits does not have any substance so as to require any interference in the order impugned.
In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed. No order as to costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-
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