Himachal Pradesh High Court
Rakesh Kumar Kaundal vs Smt. Sarswati Devi And Others on 9 July, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.: 259 of 2017.
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Decided on: 09.07.2019.
Rakesh Kumar Kaundal ....Petitioner.
Versus
Smt. Sarswati Devi and others ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No
For the petitioner : Mr. Sunny Modgil, Advocate.
For the respondents : M/s Sumit Sood and Rohini
Karol, Advocates for respondents
No. 1(i) to 1(iii), 1(vi), 1(viii) and 2.
: Respondents No. 1(iv), 1(v), 1(vii)
and 3 ex parte.
Ajay Mohan Goel, Judge (Oral)
By way of this petition filed under Article 227 of the Constitution of India, petitioner has challenged order dated 28.4.2017 passed by the Court of learned Senior Civil Judge, Court No. 1, Una, District Una, HP, in Case No. 82/09/05, vide which an application filed under Order 7, Rule 14(3) read with Section 151 of the Code of Civil Procedure, to produce on record certified copies of statement ::: Downloaded on - 29/09/2019 00:31:08 :::HCHP of SI Darshan Singh, posted at Police Station Haroli and report of the Director of Finger Print Bureau, Phillaur, by way .
of summoning the record of case No. 86-1-2001, titled as Ashok Kumar vs. State & others, pending the Court of learned Judicial Magistrate, Court No. IV, Una, District Una, HP, has been dismissed.
2. Brief facts necessary for adjudication of the present case are that the petitioner herein has filed a suit for specific performance of contract against the respondents herein. This suit was filed in the year 2005. Prayer made in the suit is for specific performance of contract by way of agreement of sale deed of the suit land on the basis of agreement to sell dated 30.12.2002, for sale consideration of 3,00,000/- (Rs. Three Lac) or in the alternative for recovery of 2,50,000/- (Rs. Two and half Lac) to the extent of half share of the plaintiff with cost.
3. During the pendency of the said suit, petitioner herein filed an application under Order 7, Rule 14(3) read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the 'Code') for permission to place on record documents referred to herein above by summoning the record ::: Downloaded on - 29/09/2019 00:31:08 :::HCHP pertaining to case No. 86-1-2001, titled as State vs. Ashok Kumar and others by the learned Court below. It was .
mentioned in the application that one Shri Julfi Ram, who was the original defendant and who had since died, had lodged an FIR, i.e. FIR No. 316/05, on 11.05.2005 against the present petitioner as well as other persons under Sections 420, 467, 468, 471 and 120-B of the IPC. It was further averred in the application that on 15.05.2005, in the course of investigation, police had taken into custody the register of Deed Writer Shri Ashok Kumar and the same was sent to the Finger Print Bureau at Phillaur and opinion was sought with regard to the thumb impression upon the same of the complainant. It was also mentioned in the application that on the basis of report received from the Director of Finger Print Bureau, Phillaur, Station House Officer prepared cancellation report. Statement of the Investigating Officer SI Darshan Singh in this regard stood recorded in the Court of learned Judicial Magistrate 1st Class, Court No. 4, Una, on 01.02.2017. According to the applicant, statement of the Investigating Officer as well as report of Finger Print Bureau were necessary for adjudication of the suit, in these ::: Downloaded on - 29/09/2019 00:31:08 :::HCHP circumstances, application was filed seeking permission to produce on record the certified copy of statement of SI .
Darshan Singh as also the report of the Finger Print Bureau and recovery memo.
4. This application has been rejected vide impugned order by the learned Court below by holding that the file which was being sought to be produced in the Court, had earlier been requisitioned by the Court on two occasions yet no endeavour was made by the applicant to place on record the documents which were available on the said file, which included the report of the Finger Print Bureau, Phillaur.
Learned Court below held that as the applicant had not exercised due diligence when he was leading evidence in support of his case, the prayer made in the application could not be allowed at a belated stage. Learned Court also held that the documents sought to be produced on record as also additional evidence intended to be led, relate to the kind of evidence to be led in affirmative in favour of the plaintiff and in case, the leave was accorded to the plaintiff, then it would take the case back to its initial stage and the parties would ::: Downloaded on - 29/09/2019 00:31:08 :::HCHP again have to go through another trial. Primarily, on these reasons, learned Trial Court rejected the application.
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5. Feeling aggrieved, petitioner has filed the present petition.
6. Learned Counsel for the petitioner has argued that the impugned order is not sustainable in the eyes of law as learned Trial Court while dismissing the application has erred in not appreciating that as the statement of SI Darshan Singh was recorded only somewhere in the month of February, 2017, therefore, there was no delay in filing the application, because such application could not have been filed by the petitioner prior to the recording of the statement of SI Darshan Singh. He has further argued that necessity to place on record the Finger Printer Bureau, Phillaur's report was necessitated by what stood deposed by SI Darshan Singh in the Criminal Case. On these bases, he has argued that the impugned order requires to be set aside.
7. On the other hand, learned Counsel for the respondent has argued that there was nothing bad in the order passed by the learned Court below as it was a matter of record that despite file of the criminal case being ::: Downloaded on - 29/09/2019 00:31:08 :::HCHP requisitioned on two occasions, no effort was made to place on record report of of Finger Print Bureau, Phillaur and now, .
on the pretext of the statement of SI Darshan Singh so recorded in the criminal case in February 2017, the petitioner could not be permitted to fill up the lacunae left in his case.
Learned Counsel for the respondent has further argued that even otherwise whatever has been deposed by SI Darshan Singh in the Criminal Case is for the purpose of adjudication of that case only and the petitioner in the suit has to stand on his own legs and he cannot draw support of what has been stated by SI Darshan Singh in the criminal case. On these bases, he has sought dismissal of this petition.
8. I have heard learned Counsel for the parties and gone through the record of the case as also the impugned order.
9. It is not in dispute that the application was filed at the stage when the matter was taken up for arguments. It is also not in dispute that earlier on two occasions, the file of the said Criminal case was requisitioned by the learned Trial Court, however, no endeavour was made by the petitioner to place on record the copy of report of the Finger Print Bureau, ::: Downloaded on - 29/09/2019 00:31:08 :::HCHP Phillaur, though the said copy was on record of the said file.
In these circumstances, in my considered view, learned trial .
Court has rightly rejected the application filed by the present petitioner under Order 7, Rule 14(3) of the Code because said provision cannot be permitted to be invoked by the petitioner to fill up the lacunae in his case. Though, the statement of Sub Inspector Darshan Singh was recorded in February, 2017, yet it is not only the statement of SI Darshan Singh which the petitioner intends to place on record by way of the application in issue. In the guise of placing on record the statement of SI Darshan Singh, an endeavour is being made to place on record the report of the Finger Print Bureau, Phillaur. During the course of arguments, learned Counsel for the petitioner could not put forth any cogent explanation as to why report of Finger Print Bureau could not be placed on record earlier despite the fact that record of the case in which report was there stood requisitioned on the request of the petitioner himself before the learned Trial Court on two occasions. In these circumstances, this Court finds no perversity in order dated 28.04.2017 passed by the learned trial Court, because it is evident from the record that due ::: Downloaded on - 29/09/2019 00:31:08 :::HCHP diligence was not exercised by the petitioner in the present case and in the garb of application filed later on, the .
petitioner could not be permitted to fill up the lacunae left in his case. Accordingly, this petition being devoid of any merit is dismissed. Pending miscellaneous application(s), if any, also stand disposed of. No orders as to costs.
(Ajay Mohan Goel) Judge July 09, 2019 (narender) ::: Downloaded on - 29/09/2019 00:31:08 :::HCHP