Chattisgarh High Court
Hari Sinha @ Hari Prasad Singh vs Gurupad Sambhav Ram on 7 October, 2023
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP227 No. 925 of 2019
Hari Sinha @ Hari Prasad Singh S/o Late Lalji Singh, Aged About
72 Years, R/o Village Sujabad, Post Kushth Seva Ashram Padav,
Varanasi U. P. Present Address- Village Gamhariya, Tahsil Jashpur
Nagar, District Jashpur Chhattisgarh........(Plaintiff), District :
Jashpur, Chhattisgarh
---- Petitioner
Versus
1. Gurupad Sambhav Ram, Chief Trusty, Baba Bhagwan Ram
Awadhut Trust Brahma Nishthalaya, Village Sogda, Tahsil Jashpur
Nagar, District Jashpur Chhattisgarh........(Defendant No. 01),
District : Jashpur, Chhattisgarh
2. Registrar Public Trust Cum Collector, Jashpur, District Jashpur
Chhattisgarh........(Defendant No. 02), District : Jashpur,
Chhattisgarh
3. Collector Raigarh, District Raigarh Chhattisgarh........(Defendant
No. 03), District : Raigarh, Chhattisgarh
4. A. K. Agrawal The Then Deputy Collector and Present Sub
Divisional Officer Raigarh, District Raigarh Chhattisgarh........
(Defendant No. 04), District : Raigarh, Chhattisgarh
5. Dr. S. K. Raju, Mission Director, Rashtriya Swasthya Mission,
Opposite Mantralaya, Raipur, Chhattisgarh........(Defendant No.
05), District : Raipur, Chhattisgarh
6. Krishna Kumar S/o not known to the petitioner, Aged About 45
Years, Trustee Bab Bhagwan Ram Avdhurt Trust Bramha
Nishthalay Sogda, Tahsil Jashpur Nagar, District Jashpur
Chhattisgarh (Defendant No. 06), District : Jashpur, Chhattisgarh
---- Respondents
(Cause-title taken from Case Information System) For Petitioner - Mr. Sharad Mishra, Advocate. For Respondents No.1 and 6 - Mr. Manoj Pranjpe and Anshul Tiwari, Advocates. For State - Mr. Vimlesh Bajpai, Govt. Advocate.
Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 07-10-2023
1. The petitioner has filed the present petition against the order passed by the learned Additional District Judge Jashpur in Civil Suit No.1-A/2018 dated 15.11.2019 whereby the application -2- moved by the plaintiff under Order 13 Rule 10 of the CPC has been rejected.
2. The facts of the present case are that the petitioner filed a civil suit seeking relief of declaration that the order passed by respondent No.2/Registrar Public Trust dated 18.07.2007 is null and void and further declaration that Baba Bhagwan Ram Avdhut Trust is not a public trust and the suit land survey No.449/5 admeasuring 0.364 hectares situated at Village Gamhariya, Tahsil Jashpur Nagar, District Jashpur is not a property of the public trust.
3. The written statement was filed by the defendants and issues were framed. During the pendency of the civil suit the petitioner moved an application under Order 13 Rule 10 of the CPC and prayed that an order may be passed to call gift deeds dated 21.06.1991 and 28.06.1991 which were filed in Civil Suit No.265/1993 pending before the Civil Court Varanasi, U.P. It is also stated in the application that the case of the plaintiff is based on the original documents but the same could not be filed along with plaint. The application was replied to by defendants No.1 and 6 and the contents of the application were denied. It is also stated that the plaintiff may prove the existence of such documents by adducing oral evidence and the application is baseless. The learned trial Court vide order dated 18.11.2019 held that the plaintiff has filed the suit for declaration and the same is based on the gift deed but the same has not been produced and the court cannot collect documentary evidence for the plaintiff. It is further held by the learned trial Court that the plaintiff ought to have filed all the documents along with the plaint and the case has been pending -3- for 10 years, therefore, such permission cannot be granted at a belated stage and eventually, the application was rejected by the court below.
4. Learned counsel for the petitioner would submit that the suit of the petitioner is based on the gift deeds dated 21.06.1991 and 28.06.1991 and the same are lying in the Civil Suit No. 265/93 pending before the Civil Court Varanasi, U.P. He would further submit that several attempts to get a copy of the gift deeds were made but the same could not be obtained and therefore, an application was moved before the learned trial Court to call such documents from the concerned Court. He would also submit that the documents, i.e., the gift deeds are in existence and the existence of such documents goes to the root of the case, therefore, the learned Court below ought to have allowed the application. In support of his argument, he has placed reliance on the judgment passed by this Court in Gopal and another Vs. Jaiprakash Gupta and others, W.P.(227) No. 262 of 2018, the judgment of the M.P. High Court rendered in the matter of Mangla Karoliya Vs. Kaluram and others, reported in 2019 SCC OnLine MP 653 and the judgment passed by the Hon'ble Supreme Court in Lakshmi and another Vs. Chinnammal @ Rayyammal and others reported in (2009) 13 SCC 25.
5. On the other hand, learned counsel for respondents No.1 and 6 would oppose the submission made by learned counsel for the petitioner. He would submit that the civil suit was filed in the year 2008, whereas the application under Order 13 Rule 10 was moved on 29.04.2019 after a lapse of 11 years without affording any explanation with regard to such inordinate delay. He would -4- further submit that according to the provisions of Order 13 Rule 1 of the CPC, the plaintiff has to file all relevant documents along with the plaint. He would also submit that the learned Court below has rightly rejected the application moved by the petitioner.
6. Learned counsel for the State would support the order passed by the learned trial Court.
7. I have heard learned counsel appearing for the respective parties and perused the documents.
8. From a perusal of the documents it appears that the civil suit was filed seeking a declaration that the order passed by respondent No.2/Registrar Public Trust dated 18.07.2007 is null and void and further declaration that Baba Bhagwan Ram Avdhut Trust is not a public trust and the suit land survey No.449/5 admeasuring 0.364 hectares situated at Village Gamhariya, Tahsil Jashpur Nagar, District Jashpur is not a land of public trust. The defendants filed their written statement, issues were framed and thereafter, on 29.04.2019 an application under Order 13 Rule 10 of the CPC was moved by the petitioner/plaintiff seeking to call the gift deeds which were lying in Civil Suit No.265/1993 pending before the Civil Court Varanasi, U.P. In the application under Order 13 Rule 10 of the CPC, the petitioner has not assigned any reason why the document was not filed along with the petition under Order 7 Rule 10 of the CPC along with the plaint and there is no explanation with regard to the delay. Undisputedly, the civil suit was filed in the year 2008.
9. Order 13 Rule 10 of the CPC reads as under:-
Order 13 Production, impounding and return of docu-
ments--5-
"10. Court may send for papers from its own records or from other Courts - (1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other suit or proceedings, and inspect the same. (2) Every application made under this rule (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.
(3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit."
10. While dealing with the provisions under Order 13 Rule 10 of the CPC in the case of Lakshmi (supra) in para 13 and 14 the Hon'ble Supreme Court held as under:-
"13. If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the court's duty being to find out the truth. The procedural mechanics necessary to arrive at a just decision must be encouraged. We are not unmindful of the fact that the court in the said process would not encourage any fishing enquiry. It would also not assist a party in procuring a document which he should have himself filed.
14. There cannot furthermore be any doubt that by calling for such documents, the Court shall not bring about a situation whereby a criminal proceeding would remain stayed as it is a well settled principle of law that where a Civil proceeding as also a criminal proceeding is pending, the latter shall get primacy."
11. The Hon'ble Supreme Court in the case of Lakshmi (supra) clearly held that it would not assist a party in procuring a document which he should have himself filed, meaning thereby the petitioner ought to have filed the documents before the concerned court along with the plaint and the court cannot be used for collection of document or evidence.
12. In the matter of Gopal (supra) the application moved under Order 13 Rule 10 of the CPC was allowed by the coordinate Bench -6- of this Court on the ground that the document was sought for comparison with the original. Therefore, the facts of the present case are entirely different from the case cited by the learned counsel for the petitioner.
13. In the case of Mangla Karoliya (supra) the application was allowed for comparison of thumb impression of a person. The judgment passed by the Hon'ble Supreme Court in the case of Lakshmi (supra) was also relied on. In the case of Lakshmi (supra), the Hon'ble Supreme Court has categorically held that the court in the said process would not encourage any fishing enquiry. It would also not assist a party in procuring a document which he should have himself filed and thus, with great respect to the judgment passed by the High Court of Madhya Pradesh it is clear that it does not help the petitioner.
14. Taking into consideration the facts of the present case, the law laid down by the Hon'ble Supreme Court, provisions of Order 13 Rule 10 of the CPC and that the civil suit has been pending since 2008, in the considered opinion of this Court the learned trial Court has not committed any error of law in rejecting the application moved by the petitioner under Order 13 Rule 10 of CPC. Consequently, this petition fails and is hereby dismissed.
Sd/-
(Rakesh Mohan Pandey) Judge Aadil