Jharkhand High Court
Gulab Singh vs Swarn Singh on 1 November, 2017
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.1391 of 2011
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Gulab Singh, son of Late Sohan Singh, Resident of village-Gour
Khunti, PO-Bhowra, PS-Sudamdih,(Jorapokhar), District-
Dhanbad ......... Petitioner
-Versus-
Swarn Singh, son of Late Ram Singh, Resident of village-
Gourkhunti, PO-Bhowra, PS-Sudamdih, ....... Respondent
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mr. Saibal Kumar Laik, Adv.
For the Respondent : ----
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04/01.11.2017Aggrieved of order dated 07.12.2010 by which applications all dated 08.09.2010 have been rejected, the petitioner has approached this Court.
2. Title Suit No.15 of 2001 was instituted for a decree of permanent injunction restraining the defendant, his men, agents and servants from interfering with the plaintiff's peaceful possession over the suit land. The suit schedule property is recorded as GAIRAWAD MALIK land in the name of Eastern Coal Company in the original record of rights. The plaintiff claims that his grand father had constructed a house where he lived with his three sons. Father of the plaintiff had constructed a house in the year 1939 over plot no.458 which was settled by Jharia Raj Estate on payment of Salami for which receipt was issued on 17.03.1939. After vesting of Jamindari, father of the plaintiff used to pay rent to State of Bihar under Jamabandi No.93. In the pending suit, applications for re-opening the case and for recalling P.W.4 for his re-examination were filed. The plaintiff has claimed that on account of mistake of the conducting advocate original receipt dated 17.03.1939 granted by Jharia Raj Estate to the plaintiff's father could not be produced on record. For proving the original receipt dated 17.03.1939 the plaintiff has sought recall of P.W.4. These applications have been dismissed by the impugned order dated 07.12.2010.
3. The learned counsel for the petitioner submits that there is sufficient foundation laid in the plaint in respect of original receipt dated 17.03.1939 and therefore, this document should have been taken on record to enable the plaintiff to establish his case.
4. Order VII Rule 14 CPC reads as under:
"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, where 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 plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.]"
5. The Code of Civil Procedure does not confer any substantive right in the parties rather, it merely lays down the procedure to be followed in the suit. Under sub-Rule 1 to Rule 14 CPC the plaintiff is required to produce the documents on which his claim is founded. Sub-Rule 2 mandates that if such document is not in possession of the plaintiff, the plaintiff should disclose the name of the person in whose possession it is. The document on which plaintiff's claim is based must find place in the list of documents. Admittedly, original receipt dated 17.03.1939 is not in the list of documents. The plaintiff has also failed to disclose whether this document was in his possession or not. Only at the stage of final argument on the ground that when this mistake was detected at the time of preparation for argument, the plaintiff filed the aforesaid two applications. Evidently, conditions under Order VII Rule 14 CPC are not satisfied. The trial judge has rightly observed that after the parties led their evidence and the matter was posted for final hearing, on such plea applications dated 08.09.2010 cannot be allowed.
6. In the above facts, finding no substance in challenge to order dated 07.12.2010, the writ petition is dismissed.
(Shree Chandrashekhar, J.) sudhir