Jammu & Kashmir High Court
Jatinder Kumar And Ors. vs Dewan Diwakar Rai And Ors. on 3 August, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CR No. 49/2013, IA No. 45/2013
Date of order:-03.08.2018
Jatinder Kumar and ors. Vs. Dewan Diwakar Rai and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For the Petitioner(s) : Mrs. Sindhu Sharma, Advocate.
Ms. Garima Gupta, Advocate.
For the Respondents(s) : Mr. Dewan Diwarkar, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. The instant Civil Revision petition filed u/s 115 of the Code of Civil Procedure is against the order dated 06 th July, 2013, passed by the Court of Sub-Judge, Kathua in Civil Suit titled, "D.D. Rai and others Vs. Jatinder Kumar and others." for setting aside the same.
2. In the memo of revision petition, it has been stated that the petitioners are the defendants in the above titled Suit, filed by the plaintiffs/respondents herein, for a decree for mandatory injunction, directing the defendants/petitioners herein to remove the unauthorized construction raised on the Suit and the decree for possession of 01 Kanals and 16 Marlas of land comprised in Khasra No. 88/5 situated at Village Chack Gainda, Tehsil Kathua. Even though the defendants/petitioner Nos. 1 to 3 herein pleaded the ownership of the suit land and also having raised construction prior to 1982, which was never objected by the plaintiffs/respondents, the only issue framed by the Trial Court is as under:-
CR No. 49/2013 c/w IA No. 45/2013 Page 1 of 6 2"Whether the defendants have raised unauthorized constructions over the suit land and if so, whether the unauthorized constructions are liable to be demolished"
expressly pleaded that the suit land?
3. The fact also emerges from the study of the file under consideration is that the Trial Court decreed the Suit vide judgment dated 29th September, 1999. However, the appeal filed by the petitioners against the judgment and decree dated 29th September, 1999 was allowed by the 1st Appellate Court vide judgment dated 19th October, 2001 and the case was remanded for fresh trial. The District Judge after going through the pleadings of the parties, framed the following additional issues:-
1-A. Whether the Suit is hit by the J&K Agrarian Reforms Act? If so, to what effect?
2-A. Whether the plaintiffs suffered from acquiescence? If so, how and what shall be its effect on the Suit?
The parties were also allowed to lead additional evidence.
4. The additional issue 1-A being crucial to determine the jurisdiction of the Court. The petitioners were able get a certified copy of the Report, annexed as Annexure-B to the Revision Petition, submitted by the Deputy Commissioner, Kathua dated 19th April, 1991 on the basis of the enquiry made by Sh. Lakhpat Rai, the then Assistant Commissioner with the Divisional Commissioner, Jammu regarding the land owned by Late Sh. Sain Dass, who is said to have died in 1987/1988. Immediately after getting this report, an application for production of this report as evidence, was filed on 04th June, 2013 on behalf of the petitioners to which respondents filed objections. After hearing the parties, the Trial Court dismissed the application vide order impugned dated 06th July, 2013 holding:-
(i) The documents should have been filed by the petitioners under Order 8 Rule 1-A while filing the written statements.
(ii) They ought to have disclosed the fact that the document was not in their possession.
CR No. 49/2013 c/w IA No. 45/2013 Page 2 of 6 3(iii) The authenticity and genuineness of this document is doubtful.
(iv) The document is not relevant.
(v) Copy of the document is said to have been issued on
28th August, 1999, but the petitioners have produced it without explaining the source from where they obtained the copy."
5. It is also stated in the instant civil revision petition that the Trial Court has outrightly rejected the document, which is a certified copy issued under Section 76 of the Evidence Act and a certified copy of a public document is not required to be proved by calling a witness. The certified copy of the report being admissible in evidence will non-suit the plaintiffs/respondents because the question whether they are the owners of the suit land will have to be decided by the Collector, Agrarian and in view of the findings that late Sh. Sain Dass was the owner of 243 Kanals and 18 Marlas of land, out of which the family has sold 01 Kanal and 15 Marlas after Kharief 1971, who was left with 122 Kanals and 03 Marlas would invite the axe of Agrarian Reforms Act because he could not retain more than 12 ½ standards acres, i.e., 100 Kanals of land. The refusal to allow the production of the certified copy of the public document is essential for deciding issue No. 1-A, as the question whether late Sh. Sain Dass had made a selection of the land under Agrarian Reforms Act, 1976 (hereinafter referred to as the Act) and if so, whether the suit land was included in it will determine the fate of the suit. However, there is evidence on the file that Sain Dass had made no such selection and this document is further a proof of that evidence.
6. It is further stated that being admittedly land as defined under the aforesaid Act, the production of this document is essential to the just decision of the case, but the rejection of the production of this document on the grounds set forth above including the one that it is not genuine is against the mandate of Section 76 of the Evidence Act and the settled CR No. 49/2013 c/w IA No. 45/2013 Page 3 of 6 4 legal position. The petitioners have assailed the impugned order on the following grounds that the Trial Court failed to exercise the jurisdiction vested in it by law, as the production of this document will help the Court to decide Issue No. 1-A in accordance with the provisions of the Agrarian Reforms Act.The Trial Court exercised the jurisdiction not vested in it by rejecting the application for allowing the petitioners to produce the certified copy of the public document in order to help the Court to reach a just decision on Issue No. 1-A because the decision on issue No. 1-A will certainly result in the final decision of the Suit, as the matter will have to be decided by the Collector (Agrarian).
7. I have considered the rival contention and law on the subjects. As per law, defendant is required to produce all document/s upon which he relies at the time of filing of written statements in terms of Order VIII Rule 1-A C.P.C; In terms of Rule 1-A(3) of Order VIII C.P.C, if document which ought to be produced in Court is not produced at that time, then it cannot be produced later on without leave of Court. Order XIII Rule1 of C.P.C. warrants production of all original documents before issues are framed. Order XIII Rule 2 of C.P.C. warrants production of documents at later stage with permission of Court, if good cause is shown. It has also to be shown that he was not in possession or in knowledge of said document.
8. In 1994 SCC (4) 659 case titled Billa Jagan Mohan Reddy v. Billa Sanjeeva Reddy, it has been held as under:-
"Order 13, Rule 1 provides thus "1. Documentary evidence to be produced at or before the settlement of issues.- (1) The parties or their pleaders shall produce, at or before the settlement of issues, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.CR No. 49/2013 c/w IA No. 45/2013 Page 4 of 6 5
(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.
It is clear from its bare reading that the parties or their counsel shall be required to produce all the documentary evidence in their possession or power which they intend to rely on to establish their right along with pleadings or before settlement of the issues. The court is enjoined under sub rule (2) to receive such documents provided they are accompanied by an accurate list thereof prepared in the prescribed form. If they are not in the party's possession or custody, it shall be filed by the party along with an application to condone the delay in filing them. The explanation for delay is not as rigorous as one filed under Section 5 of the Limitation Act. These documents were not in the possession or custody of the appellants, but they have obtained certified copies from the Revenue Authorities and sought to be produced. It is undoubted that there is a delay in production of the said documents. But the trial court had stated that the application was filed at the stage of arguments, seeking to produce those documents and sought to rely upon the documents. It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27 CPC the appellate court would receive the documents and consider the effect thereof. When such is the position, when the documents are sought to be produced in the trial court, before the arguments are completed, normally they may be received; an opportunity given to prove them and rebuttal, if any, and their relevance and effect they may have, be considered in deciding the issues arising in the controversy. Under these circumstances, the trial court was not justified in refusing to condone the delay and to receive the documents. The High Court also committed the same error in not considering the effect in this behalf in the right perspective. The orders are accordingly set aside and the delay in filing the documents is condoned. The trial court is directed to receive the documents, give an opportunity to the parties to prove the documents and if necessary, opportunity to the respondent to rebut the same and then dispose of the reference according to law.
The appeal is accordingly allowed. No costs."
9. The document sought to be produced is public document obtained from revenue office. It has categorically mentioned that this document was not in possession of defendants. The counsel for respondent has argued that, there is no such file in office from where certified copy of document has been obtained as is evident from RTI reply; he has further argued that document is not admissible in evidence and has no effect on case. Law is CR No. 49/2013 c/w IA No. 45/2013 Page 5 of 6 6 clear that admissibility or relevancy of document/s cannot be seen at the time of granting or refusing permission to produce document/s at belated stage. Court of first instance (trial court) is meant to do substantial justice after giving all reasonable opportunities to parties to produce evidence documentary or oral. The only purpose is that technicalities should not come in way in providing substantial justice; procedural law is handmade justice and cannot be made an obstruction in the court's way to do justice. Whether document in question has bearing effect on the merit case, it can be seen when document is proved as per law. Mere taking on record, it does not mean that document has been proved and court has relied on it.
10. In view of above discussion, the order of Court below is set aside. This revision petition is allowed.The trial court is directed to take the document on record; however, it is required to be proved as per law before relying upon it; for that purpose, court shall grant three opportunities to defendants/petitioners to prove it and three opportunities to plaintiff to rebut it. Record of court below be sent back immediately.
(Sanjay Kumar Gupta) Judge Jammu 03.08.2018.
Ram Krishan CR No. 49/2013 c/w IA No. 45/2013 Page 6 of 6