Rajasthan High Court - Jodhpur
Smt.Mithu Devi & Anr vs Smt.Indubala @ Sheela & Ors on 13 July, 2017
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. CIVIL WRIT PETITION NO. 5331 / 2017.
1. Smt. Mithu Devi W/o Shri Rameshwar, Aged About 64 Years,
By Caste Mali, Resident of Gali No. 4, Paota c Road, Jodhpur.
2. Smt. Maina Devi W/o Late Shri Hari Singh, Aged About 58
Years, By Caste Mali, Resident of No.5, Lal Sagar, Nayapura,
Jodhpur.
----Petitioners
VERSUS
1. Smt. Indubala @ Sheela W/o Shri Babu Lal Sankhla, By
Caste Mali, Resident of Village Punjla, Bavari, Jodhpur At
Present Adarsh Nagar, Lal Sagar, in Front of Hanwant Adarsh
School, Teshil & District Jodhpur.
2. Babu Lal S/o Late Shri Budha Ram, By Caste Mali, Resident
of Adarsh Nagar, Lal Sagar, in Front of Hanwant Adarsh
School, Jodhpur.
3. Santosh Singh S/o Late Budha Ram, By Caste Mali, Resident
of Bavari Bera, Near Char Khamba, Village Punjla, Tehsil &
District Jodhpur.
4. Jabbar Singh S/o Late Budha Ram, By Caste Mali, Resident
of Bavari Bera, Near Char Khamba, Village Punjla, Tehsil &
District Jodhpur.
(2 of 7)
[CW-5331/2017]
5. Rajendra Singh S/o Late Budha Ram, By Caste Mali, Resident
of Kirti Nagar, C-Sector, In Front of Park, Jodhpur.
6. Sarita W/o Shri Kishan Lal, By Caste Mali, Resident of Parihar
Nagar, Jodhpur.
7. Smt. Dhanosh W/o Shri Hari Prasad Chouhan, By Caste Mali,
Resident of in Front of Mahamandir Railway Station, Jodhpur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. O.P. Sangwa on behalf of
Mr. Ravindra Acharya.
For Respondent(s) : Mr. Suganmal Parihar.
Mr. Ranjeet Singh Bhati.
_____________________________________________________
JUSTICE DINESH MEHTA
Order
13/07/2017
BY THE COURT:
In the present writ petition, the petitioners have laid challenge to the order dated 13.04.2017 passed by the learned Additional District Judge No. 5, Jodhpur Metropolitan, Jodhpur (hereinafter to be referred as "Trial Court") whereby, the application dated 22.09.2016 filed by the petitioners-plaintiffs under Order VII Rule Order 14(3) of the Code of Civil Procedure has been rejected.
Shorn of unnecessary details, the facts relevant for the purpose of decision of the present writ petition that the petitioners-plaintiffs filed a suit for cancellation of a Gift Deed (3 of 7) [CW-5331/2017] dated 14.10.2005, said to have been executed by Budha Ram, in favour of defendant No. 1 (Smt. Indubala @ Sheela). While filing the suit, the plaintiffs have in unequivocal terms stated that said Budha Ram, the donor, had been suffering from paralysis since 2003 and at the relevant time, when the contentious Gift Deed was allegedly executed, he was not in a position to execute the same. It was also averred in the plaint that within a period of 5 months of the date of execution of the Gift Deed, Budha Ram had expired and that he was neither in a position to walk nor was he in the mental state, to execute the Deed in question.
During pendency of the suit, when the matter was fixed for plaintiffs' evidence, the petitioners moved an application dated 22.09.2016 indicating therein, that the petitioners have found certain documents relating to treatment of said Budha Ram which evince that Budha Ram was so terminally ill that he was unable to execute the Gift Deed. It will be relevant to reproduce the facts indicated in the application which reads thus:-
^^2- ;g gS fd oknhx.k us mijksDr okn esa cq)kjke }kjk fu"ikfnr c['kh'kukek dks fujLr fd, tkus dh bLrnqvk pkgh gS o vius okn esa Li"V rkSj ij mYysf[kr fd;k gS fd dfFkr c['kh'kukek ds fu"iknu ds le; cq)kjke dh gkyr vPNh ugha Fkh vkSj oks l[r chekj Fks o vLirky esa mudk fujUrj bZykt Hkh py jgk Fkk] ,slh fLFkfr esa dfFkr c['kh'kukek QthZ o dwVjfpr rjhds ls rS;kj fd;k x;k gS A 3- ;g gS fd gky gh esa oknhx.k dks vius ?kj ij iqjkus dkxtkr lEHkkyus ij cq)kjke th ds bZykt ls lEcaf/kr nLrkost izkIr gq,] ftlls Li"V gS fd cq)kjke th yEcs le; rd chekj jgs vkSj muds }kjk dksbZ c['kh'kukek chekjh dh voLFkk easa (4 of 7) [CW-5331/2017] fu"ikfnr fd;k x;k ugha ekuk tk ldrk A mDr nLrkost oknhx.k dks gky gh esa izkIr gq, gSa] ftUgsa bl okn ds U;k;iw.kZ fuLrkj.k ds fy, jsdMZ ij fy;k tkuk vko';d o U;k; laxr gSa] rkfd oknhx.k viuh lk{; esa mDr nLrkostkr dks izn'kZ ekdZ djok lds ,oa ekuuh; U;k;ky; ds le{k lgh oLrqfLFkfr vk lds A^^ Apart from the above, it was also indicated in the application that at the time of filing of the plaint, the documents were not in the knowledge of the petitioners-plaintiffs and that they have been found just a few days before filing of the application under consideration. The said application of the plaintiffs was seriously opposed by the defendants orally, though no reply thereto was filed.
The learned Trial Court, however, rejected the petitioners' application dated 22.09.2016 summarily observing, inter alia, that the documents under consideration are not relevant to the issues involved in the case and that the documents in question have been filed after more than 4 years of filing of the suit.
Mr. O.P. Sangwa, learned counsel for the petitioners, challenging the order impugned dated 13.04.2017, contended that the learned Court below has erred in rejecting the petitioners' application and the reasons assigned therein are not germane and relevant for deciding an application under Order VII Rule 14(3) of the Code of Civil Procedure. He contended that the petitioners have projected their case essentially on the premise that Budha Ram, the donor of the property, was not in a physical and mental state to execute the Gift Deed and for proving the said assertion, (5 of 7) [CW-5331/2017] the documents under consideration filed along with the contentious application were necessary. He further contended that in light of the averments made in the application namely, the subject documents have come to their knowledge only some days prior to the filing of the application, the learned Trial Court ought to have allowed the application, particularly, keeping in view the stage of the suit which was still pending for petitioners'-plaintiffs' evidence.
Per contra, Mr. Suganmal Parihar, learned counsel appearing for the respondents-defendants submitted that the documents in question relate to the period prior to filing of the suit and, as such, these documents ought to have been filed with the plaint; the plaintiffs, having failed to enclose those documents with the plaint, cannot be given a liberty to fill-up the lacuna left in their pleadings; and that the documents in question pertaining to the ailment of Budha Ram and are very general in nature and neither they are of any help to the plaintiffs nor are they relevant for the purpose of adjudication of the issues involved in the suit. To lend legal support to his argument, Mr. Parihar relied upon a judgment of this Court in the case of Monika Vs. Surendra Bhansali & Ors., reported in 2016 (Suppl.) Civil Court Cases 124 (Rajasthan) to contend that if the documents pertain to the period prior to filing of the plaint, they should peremptorily be filed with the plaint and in the event of failure to do the same, the documents cannot be taken on record in exercise of provisions contained under Order VII Rule 14 (3) of the Code of Civil Procedure.
(6 of 7) [CW-5331/2017] I have heard learned counsels for the parties and perused the material available on record.
A perusal of the pleadings of the parties reveals that the plaintiffs' sole premise for challenging the Gift Deed dated 14.10.2005 has been, the ailment of Budha Ram, the donor of the property, and his consequent incompetence to execute the Deed in question, on account of such physical and mental impairment. The petitioners-plaintiffs have stated in their application all the facts including the fact that these documents, though pertain to the period prior to filing of the suit, but the same have been unearthed a few days before filing of the application; and that the documents in question are relevant and necessary to prove the factum of indisposition of said Budha Ram.
In wake of the facts obtaining in the present case, particularly, when the sole fulcrum of the petitioners' case was the ailment of the donor for which, necessary pleadings were incorporated in the plaint as well as in the application, this Court is of the considered opinion that the learned Trial Court ought to have taken the documents in question, on record as, taking these documents on record would serve the cause of justice and denial of the same would result in failure thereof.
Learned Trial Court has rejected the application on the ground of delay in filing the documents and holding them to be irrelevant. Such findings of the learned Court below are perverse and contrary to record. The order impugned dated 13.04.2017 is thus clearly illegal.
(7 of 7) [CW-5331/2017] As far as the judgment relied upon by the learned counsel Mr. Parihar is concerned, the same relates to a case arising out of matrimonial dispute wherein, the documents, sought to be produced by the said applicant (Monika), were held to be in her knowledge and custody whereas, in the present case, the petitioners have stated that these documents were not in their possession at the time of filing of the plaint.
The Rules of Procedure are not hand-maid of justice and the same are meant to serve the cause of justice. In view thereof, the order dated 13.04.2017 passed by the learned Court below is quashed and set aside. The application dated 22.09.2016 preferred by the petitioners is allowed.
It is true that there is some delay in filing of the documents, but looking to the stage of the suit which is at the stage of plaintiffs' evidence, this Court is of the considered view that such delay is not fatal to the maintainability and merit of the application. However, to compensate the Respondents, for the inconvenience, a cost of Rs. 3,000/- be paid to the defendant No.1 (Smt. Indubala @ Sheela), which would meet the ends of justice.
Resultantly, the writ petition is allowed; the subject application dated 22.09.2016 is allowed. The documents filed along with the application are ordered to be taken on record. The cost aforesaid be paid on the next date of hearing, which shall be the precursor of taking the documents on record.
(DINESH MEHTA), J.
/Mohan/66