Allahabad High Court
Colonel Mukul Dev vs Smt. Deveshwari Devi on 19 September, 2022
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No.40 Case :- MATTERS UNDER ARTICLE 227 No. - 4126 of 2019 Petitioner :- Colonel Mukul Dev Respondent :- Smt. Deveshwari Devi Counsel for Petitioner :- Vinayak Mithal Counsel for Respondent :- Avneesh Tripathi Hon'ble Siddhartha Varma, J.
The respondent-plaintiff filed a suit being Suit No.848 of 2002 for declaration and also for a permanent injunction praying that the suit property situate at 142, Jattiwara, Meerut be declared as the property of the plaintiff and also the defendant be restrained by a permanent injunction from causing any interference in the peaceful possession and occupation of the property 142, Jattiwara, Meerut. The claim was set up by stating that the husband of the plaintiff-respondent namely late Surendra Dayal, who had expired on 17.6.2002, had bequeathed the property in question by a will dated 19.5.2002. A further allegation was there in the plaint that the father of the deceased-husband of the plaintiff late Sri Shiv Dayal had willed his self-earned property on 29.4.1974 to the deceased-husband of the plaintiff. The suit was filed sometime in the year 2002 and thereafter the petitioner-defendant Colonel Mukul Dev filed a written statement on 18.6.2002. Thereafter issues were struck and the parties submitted their affidavits by way of examination-in-chief. The plaintiff and the defendant were put to cross-examination and before the settlement of the issues and at the time of filing of the suit, all relevant documents, which were to be relied upon by the parties as documentary evidence in original, were also filed. After the cross-examination of the plaintiff who was produced as PW-1 and the cross-examination of PW-2 Smt. Payal Agarwal, the daughter of the plaintiff was concluded on 19.7.2018, the evidence viz.-a-viz. the plaintiff was closed. The defendant, after the production of his affidavit as examination-in-chief on 17.9.2018 was put to cross-examination with effect from 5.11.2018. While the evidence of the defendant-petitioner was being adduced in the cross-examination, the plaintiff filed an application no.155-C on 22.2.2019 and sought permission to file certain fresh documents as evidence. The documents which were to be filed were around 9 in number. The defendant-petitioner objected to the filing of fresh evidence on 25.2.2019. However, when the Trial Court by its order dated 26.2.2019 permitted the plaintiff-respondent to bring on record some of the documents which she had prayed for being brought on record then the instant writ petition was filed.
From the perusal of the order impugned, it appears that Paper Nos.164-Ka to 166-Ga, which were sought to be brought in as additional evidence were refused but the other papers were admitted in evidence.
Learned counsel for the petitioner has assailed the order by stating that when the evidence viz.-a-viz. the plaintiff had been closed then without recalling the order by which the plaintiff's evidence was closed, the Trial Court could not have admitted in evidence/further documents. The additional documents which were sought to be brought in as additional evidence could not have been allowed to be filed. Learned counsel for the petitioner further submitted that when there was no law to permit the adducing of evidence by the plaintiff after the evidence of the defendant-petitioner had commenced then the additional evidence could not have been allowed to be brought on record. Learned counsel assailed the order by stating that the Trial Court had not given any reason as to why the additional evidence had been brought on record. Learned counsel for the petitioner submitted that bringing on record documents by way of additional evidence was a dilatory tactics which was being adopted by the plaintiff. Learned counsel for the petitioner relied upon Order VII Rule 14 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") and submitted that at the time of the filing of the suit, the documents, which were to be relied upon and which were in the possession of the plaintiff, should have been entered in the list which had accompanied the plaint and those documents should have been produced in the Court when the plaint was presented by the plaintiff. He submitted that if the documents were not in the possession of the plaintiff, she should have stated that in whose possession exactly the documents were. Learned counsel for the petitioner further submitted that the plaintiff's case in paragraph nos.2 and 3 of the plaint was specifically to the effect that initially Sri Shiv Dayal had willed the property in question to the husband of the plaintiff Sri Surendra Dayal on 29.4.1974 and thereafter the husband of the plaintiff namely Surendra Dayal had willed the property to the plaintiff on 19.5.2002. These facts when had been denied in the written statement then it was the bounden duty of the plaintiff to have filed the original documents under Order XIII Rule 1 CPC. Learned counsel for the petitioner-defendant further submitted that under Order XVIII Rule 4 CPC when the recording of evidence was done and when the plaintiff found that there were certain lacuna in her evidence then she could not have been permitted to file the additional documents. Learned counsel for the petitioner further submitted that earlier under Order XVIII Rule 17-A CPC, documents could have been submitted but thereto there was a condition that the documents which would have been submitted after the conclusion of the evidence were to be such documents/evidence which were not within the knowledge of the plaintiff or could not be produced by the plaintiff at the time when the plaintiff was leading his/her evidence.
Since, learned counsel for the petitioner states that, the provisions of Order XVIII Rule 17-A CPC were being misused by the litigants to prolong proceedings, the said provision of Order XVIII Rule 17-A CPC itself was deleted from the Code. Learned counsel for the petitioner, therefore, stated that the order impugned cannot be sustained in the eyes of law and may be set-aside.
Sri Avneesh Tripathi, learned counsel appearing for the plaintiff-respondent, however, submitted that when there was denial of certain existing facts by the defendant in his cross-examination then it was essential that the documents which the plaintiff was bringing on record be brought on record. This, learned counsel for the plaintiff-respondent submitted would facilitate the Court in passing the judgment in the case. Learned counsel for the plaintiff-respondent submitted that under Order XIII Rule 1(3) CPC any document could be produced for the cross-examination of the witnesses or other parties and, therefore, the document in question could have definitely been produced. He further submitted that even if there was no provision in the CPC for the production of additional documents then the same could be allowed to be done by the Court in its inherent powers under section 151 CPC. Learned counsel for the plaintiff-respondent to bolster his case relied upon a decision of Delhi High Court in Subhash Chander vs. Bhagwan Yadav reported in 2010 (114) DRJ 306 decided on 25.11.2009 and submitted that under Order XIII Rule 1(3) CPC the document could be produced. Learned counsel for the plaintiff-respondent further relied upon a decision of the Supreme Court in K.K. Velusamy vs. N. Palanisamy reported in (2011) 11 SCC 275 and submitted that even if there was no power bestowed upon the Court under the CPC to allow the parties to produce any material or evidence, the same could be done under section 151 CPC to facilitate the Court to adjudicate the case.
Having heard learned counsel for the parties, the Court is of the view that definitely under the specific provisions of CPC i.e. under Order VII Rule 14 and under Order XIII Rule 1, the Court had no power to allow the parties to adduce further evidence after the relevant stages were over. The relevant stages were : (i) when the suit was filed; and (ii) before the issues were settled. For proper appreciation of the law, which is being dealt with, the provisions of Order VII Rule 14 CPC and Order XIII Rule 1 are being reproduced here as under :-
"Order VII Rule 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 plaintiffs witnesses, or, handed over to a witness merely to refresh his memory.
"
"Order XIII Rule 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."
Definitely under Order XIII Rule 1(3) CPC, document could be produced for the cross-examination of the witnesses but this does not mean that documents could be produced even after the cross-examination had concluded. It was the bounden duty of the Court to have, even under section 151 CPC, seen as to whether the documents which were being sought to be produced, were within the knowledge of the parties who were trying to produce the document or whether even after exercise of due diligence, the documents could not be produced by the party which was producing the document at the relevant point of time. The powers under section 151 CPC could be exercised, as has been stated in the case of K.K. Velusamy (supra), only under the following circumstances :-
"(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is 'right' and undo what is 'wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, Section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court."
In the instant case, the Court finds that after the stages of Order VII Rule 14 and Order XIII Rule 1 CPC i.e. when the suit was filed and before the issues were settled, the plaintiff was required to file all the relevant documents. However, the Court finds that nowhere in the CPC is there any prohibition for bringing any document by way of additional evidence subsequently and, therefore, if in the interest of justice any document was to be produced then the Court had to use its power with circumspection and care and when the bona fide of the applicant could not be doubted and also when it was absolutely essential to bring on record the additional evidence to meet the ends of justice. In the instant case the Court finds that, definitely the plaintiff had not exercised the right which she had, to file the relevant evidence at the time of filing of the suit and also before the settlement of the issues. The Court, however, finds that when the case of the plaintiff was dependent upon the two wills dated 29.4.1974 and 19.5.2002 then definitely the two wills ought to have been brought on record either at the time of filing of the suit or before the settlement of the issues. Keeping in mind that injustice may not occur, the Court under its powers under section 151 C.P.C. directs that the documents which find place in the list of documents at Serial Nos.4, 5 and 6, which were filed on 22.2.2019, may be taken on record as additional evidence.
Under such circumstances, the impugned order by which the documents at Serial Nos.4 to 6 were allowed to be taken on record, is not being interfered with. Any other document should not be allowed to be taken as evidence. These documents definitely, if proved or disproved, would give a different turn to the case. When the documents are taken on record, the parties shall be allowed to lead evidence which shall definitely be concluded within a period of one month and thereafter the suit itself would be decided within a period of six months.
Since, the Court finds that the documents which have been permitted to be taken on record by this Court were available to the plaintiff at the time when the suit was filed and also at the time when the issues were settled, the Court concludes that the plaintiff for this carelessness and laxness should be penalized and, therefore, the documents which are sought to be taken in as additional evidence which were there in the list of documents at Serial Nos.4, 5 and 6, be admitted only if the plaintiff deposits a cost of Rs.10,000/-.
The impugned order, accordingly, stands modified.
The instant application under Article 227 of the Constitution of India, accordingly, stands party allowed.
Order Date :- 19.09.2022 GS (Siddhartha Varma, J.)