Gauhati High Court
Jyotsna Rani Ghosh & 6 Ors vs Garib Sha Nawas & 9 Ors on 6 June, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP(I/O) 11 of 2017
JYOTSNA RANI GHOSH & 6 ORS. .....Petitioners
-Versus-
GARIB SHA NAWAS & 9 ORS. .....Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. G.P. Bhowmik, Sr. Adv.
: Mr. R. Hazarika, Ms. P. Chetia.
Advocates for the Respondents : Mrs. R. Choudhury, Ms. A. Begum, : Ms. N. Begum.
Date of hearing : 31.05.2017.
Date of judgment and order : 06.06.2017.
JUDGMENT AND ORDER (CAV)
This matter has been taken up for hearing at the admission stage. Heard Mr. G.P. Bhowmik, the learned Senior Counsel assisted by Mr. R. Hazarika, appearing for the petitioner and Ms. R. Choudhury, the learned Counsel for the respondent.
2) The order dated 07.01.2017 passed by the learned Civil Judge, Dhubri, in T.S. No. 2/2001 is impugned in this application under Article 227 of the Constitution of India, by which the petition filed by the petitioners/ plaintiffs under section 30 read with section 151 of the Civil Procedure Code to be permitted to adduce additional evidence to prove Sale Deed No. 330 dated 01.06.1988, was rejected.
CRP (I/O) 11/2017 Page 1 of 83) As projected in this application, the case of the petitioners is that they were the owners of land measuring about 12 bigha- 11 katha- 15 dhur (equivalent to 12 Bigha- 2 katha- 19 lechas) of Touzi No.5, under Parbotjoar cum Chapar acquired estate, Bilasipara, now under Bilasipara Circle, which is the land described in Schedule-A of the plaint. However, in the month of February, 1983, the original defendant had dispossessed the plaintiffs from 1 bigha- 2 katha- 9 lechas of land. The respondents/ defendants were again trying to grab the suit land measuring 2 bigha- 2 katha- 4 lechas, shown in Schedule-B of the plaint, which is within Schedule-A land. However, taking advantage of the dismissal of suit instituted by the petitioners for non- prosecution, the respondents- defendants had constructed a C.I. Sheet Chapra house in Schedule-C and Schedule-D land, which forms part of land described in Schedule-B. In the plaint of T.S. No. 2/2001, the petitioners/ plaintiffs had prayed for the following reliefs:-
a. Declaration that plaintiff has got right, title, interest and possession over the suit land shown in Schedule-B. b. Declaration that the order passed by the Settlement Officer is illegal and not binding upon the plaintiffs.
c. Permanent injunction against the defendants not to dispossess the plaintiffs from Schedule-B land and from constructing houses thereon. c-a) Khas possession of the suit land by evicting the defendants and their agents, etc.
4) The defendants contested the suit and inter-alia, contended that they have right, title, interest and possession in respect of Schedule-B land and they had sold a part of the said land covered by Dag No. 557/ 865 (old)/ Dag No. 591 to one Shipra Ghosh, who is in possession thereof and constructing a house thereon. The defendants had also filed their additional written statement, wherein it was contended that no such land exists in Dag No. 556 within the boundaries as given in Schedule-C and Schedule-D and boundaries of Dag No. 557/865, as given in Schedule-B(2) is also fictitious and that the plaintiffs had no land on the northern boundary of Dag No. 557/ 865. It was also contended that CRP (I/O) 11/2017 Page 2 of 8 the land of Dag No. 557/865 was possessed by Shipra Ghosh and there was no PWD Road on the eastern boundary of the Dag.
5) In course of trial of the said suit, the Respondent/ Defendant No.1 appeared as DW-1, and he had made a statement in his cross examination in connection with the boundary of the land described in the plaint. On the basis of the statements given by the DW-1, the petitioners filed a petition filed by the petitioners/ plaintiffs under section 30 read with section 151 of the Civil Procedure Code to allow them to adduce additional evidence to prove the Sale Deed No. 330 dated 01.06.1988. On rejection of the said petition, the learned Trial Court had fixed the case for argument. Hence, aggrieved by the said order, this present application has been filed.
6) The learned Senior Counsel for the petitioners/ plaintiffs has submitted that only on 21.11.2016, the petitioners had come know about the existence of Sale Deed No. 330. Moreover, it was submitted that only after the evidence and cross examination of DW-1, it could be culled out that the defendants had been selling the suit land and out of which one portion of land was sold by one of the purchasers to the other, who again transferred the said portion of land to one Kananailal Sutradhar, the present occupant by virtue of Sale Deed No. 330 dated 01.06.1988.
7) The learned Senior Counsel for the petitioner has submitted that the respondents/ defendants had their land on the eastern side of the PWD Road, covered by khatian No. 73, filed herein as Annexure-A, which was sold by different sale deeds including the sale deed No. 330 in question, which would disprove the evidence of the defendants, and the same would show that by denying existence of land in khatian No. 73 on the eastern side of PWD road, falsely wanted to project that the land on the western side of the PWD road was their land. It is submitted that in view of the said position, this was a fit case to allow the petitioner to introduce the said Sale Deed No. 330 into evidence, CRP (I/O) 11/2017 Page 3 of 8 though at a belated stage, as it would become an aid to the Court to resolve the real issues in controversy.
8) Per contra, the learned Counsel for the respondent has opposed this application and her pointed submission are (i) that there is no pleadings in the plaint which could be proved by introducing the sale deed no. 330 registered on 01.06.1988 at the belated stage of the suit, which was otherwise fixed for final argument, (ii) the suit was of the year 2001 and the document now intended to rely upon by the petitioners' side was a pre-existing document, registered on 01.06.1988, as such, if the petitioners' side had remained without knowledge of such document, it was a case of absence of due diligence on part of the petitioners during trial, (iii) the basis of the petition to introduce document was that the same came to the knowledge of the petitioners for the first time on 21.11.2016 after the cross examination of DW-1 on 02.11.2016, was definitely not a good ground to entertain the prayer of the petitioners because no party can be permitted to give additional evidence merely to disprove the statements made by a witness during cross- examination.
9) Having heard the arguments advanced by the learned Counsels for the parties, I have perused the materials available on record. In paragraph 9 of the amended plaint, the petitioners have specifically stated "that the respondents- defendants had sold a part of their khatian land to different persons by various sale deeds showing the land of the plaintiffs in northern and eastern boundary." Thus, there is no reference to the sale deed No. 330 dated 01.06.1988. Therefore, on this count, I find that having taken a specific plea in the plaint that the various sale deeds executed by the defendant, the land of plaintiff was shown in northern and eastern boundary, the petitioners/ plaintiffs had taken a calculated risk of not relying on any such document when the plaint was filed.
10) With the aforesaid background, it is seen that the petitioners had filed a petition before the learned Trial Court under the provisions of section 30 read with section 151 of the Civil Procedure Code. It is a trite law that the provisions CRP (I/O) 11/2017 Page 4 of 8 of section 151 cannot be invoked when there exists appropriate provisions for the same in the Code and that it cannot be used to nullify any other provisions of law. In light of above, as the Civil Procedure Code puts a bar to introduction of any document in evidence without the leave of the Court under the provisions of sub-Rule (3) of Rule 14 of Order VII of the Code, I am constrained to hold that the express bar created thereunder cannot be overcome by invoking the inherent power of the Civil Court under section 151 of the Civil Procedure Code, which, if allowed, would nullify the provisions of sub-Rule (3) of Rule 14 of Order VII of the Code. In this I find support from the case of P.S. Kona Anal Vs. The State of Manipur & 4 others, reported in (1989) 2 GLR 142. I also find support from the case of Meera Chouhan V. Harsh Bishnoi, reported in (2007) 12 SCC 201, where the Hon'ble Apex Court has laid down that powers under section 151 of the Civil Procedure Code must be exercised only in exceptional circumstances for which the Code lays down no procedure. Therefore, in my opinion, notwithstanding the dismissal of the said petition, the application for introducing documents in evidence at the stage when the suit was fixed for argument could not have been entertained by applying inherent power of the Court under section 151 of the Code, for which exceptional circumstances must exist and successfully demonstrated before the learned Trial Court.
11) As the said petition filed before the learned Trial Court was also under section 30 of the Civil Procedure Code, it is deemed fit to examine the provisions of section 30 of the Code, which reads as follows:-
"30. P ow er to order discovery and the like.- Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party,
(a) make such orders as may be necessary or reasonable in all CRP (I/O) 11/2017 Page 5 of 8 matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit."
12) The above quoted provisions show that power exercisable under section 30 of the Civil Procedure Code is made "subject to such conditions and limitations as may be prescribed". Moreover, sub-section (a) of section 30 of the Code appears to be relatable to the provisions of Order XIII of the Civil Procedure Code, which is for "Production, Impounding and Return of Documents". The provision of sub-section (b) of section 30 of the Code appears to be relatable to the provisions of Order XVI of the Code, which is for "Summoning and Attendance of Witnesses". The provision of section (c) of section 30 of the Code appears to be relatable to the provisions of Order Rule (1) of Order XIX of the Code. The petitioners' side has not been able to show that the Court has power to take recourse of the provisions of section 30 of the Code to overcome the requirement of leave of the Court to admit a document in evidence as prescribed in Sub-Rule (3) of Rule 14 of Order VII of the Civil Procedure Code. In the present case in hand, I find that as the suit was in argument stage and, as such, the suit had crossed the stages when provision of section 30 of the Code was exercisable.
13) Visiting the said petition filed by the petitioner, it is observed that it contains a statement in paragraph 3 that "the defendants have challenged existence of the land of the plaintiffs and denying no land of the defendants in eastern side of P.W.D. Road in cross-examination of DW-1 - Garib Sha Nawas, CRP (I/O) 11/2017 Page 6 of 8 one of the defendants." In paragraph 4 it is stated that "Thus, in order to disprove the plea of the defendants, the plaintiffs after thorough enquiry have come to know that ......". Thus, it is evident that the purpose of introducing a document in evidence at the belated stage is to disprove the statement made by the defendant's witnesses. In the said view of the matter, this Court by the order dated 03.02.2017, had posed a query as to whether in respect of any plea taken by the defendant's witness in his cross- examination, it is imperative for the plaintiff to tender fresh evidence to counter the said statement made by the defendant witness. However, in support the said plea, the learned Senior Counsel for the petitioners has not been able to cite any authority on the said point of law. In my considered view, if the said plea is accepted, it would lead to a situation where after closure of cross examination of each and every witnesses of either side, a litigant will be able to approach the court for adducing additional evidence to counter statements made by witnesses and the trial would become unending.
14) In a cross examination, witnesses are supposed to answer questions put to the witness by the other side and, as such, the answers given by a witness in cross examination are not voluntary statement or an unsolicited statement by the witness. Therefore, if any undesired answer was elicited during cross examination, the erring party is bound to suffer the consequences and no additional evidence can be allowed to tender to fill up the lacuna.
15) In another view of the matter, it is a trite law that a Court cannot be permitted to look into any amount of evidence upon a plea which was never put in the pleadings. In this connection, I find support from the case of Bachhaj Nahar Vs. Nilima Mandal & anr., reported in (2008) 17 SCC 491.
16) In view of the foregoing discussions, I am of the considered view that there is no infirmity in the order dated 07.01.2017 passed by the learned Civil Judge, Dhubri, in T.S. No. 2/2001. The said learned Court has not committed any jurisdictional error and, as such, no interference with the said order is warranted.
CRP (I/O) 11/2017 Page 7 of 8Accordingly, the said order is upheld. Consequently, this application stands dismissed. The parties are left to bear their own cost.
17) The parties are directed to appear before the learned Court of Civil Judge, Dhubri on the date fixed and/or on 16.06.2017 to seek further instructions from the said learned Court, without waiting for any further notice to appear.
JUDGE Mkumar.
CRP (I/O) 11/2017 Page 8 of 8