Rajasthan High Court - Jaipur
Gordhan Lal Agarwal vs Shri Mali Ram &Anr on 21 January, 2013
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER Gordhan Lal Agarwal Vs. Mali Ram Modi & Another (S.B. Civil Writ Petition No.14507/2009) S. B. Civil Writ Petition under Articles 226 and 227 of the Constitution of India. Date of Order: January 21, 2013. PRESENT HON'BLE MR. JUSTICE ALOK SHARMA Mr. Tej Prakash Sharma, for the petitioner. Mr. Rajneesh Gupta, for respondents. BY THE COURT:
REPORTABLE This petition has been filed challenging the order dated 9-11-2009 passed by Civil Judge, Neem ka Thana, Sikar (hereinafter `the trial court') dismissing two different applications filed by the petitioner defendant-tenant (hereinafter `the defendant'), one under Section 65 of the Evidence Act, and the other under Section 151 CPC for taking additional documents on record in a suit for eviction filed by the respondent-plaintiff-landlord (hereinafter `the plaintiff') Mali Ram Modi (now deceased and represented by his legal representatives).
The plaintiff filed a suit for eviction in respect of a shop stated to be let out by him to defendant, which shop was/ is situate near the bus-stand, at Neem ka Thana, Sikar. The eviction was sought on the ground of default in payment of rent by the defendant for the period July, 1994 to May, 1995 covered under Section 13 (1)(d) of the Rajasthan Premises (control of Rent and Eviction) Act, 1950 (hereinafter `1950 Act') and on the ground of material alteration in tenanted premises without the consent of the landlord under Section 13 (1) (c) of the 1950 Act.
Routine as it is, the suit was defended on all counts by the defendant and all grounds agitated negated. It was denied that there was any default in payment of rent or any material alteration made in the shop allegedly belonging to the plaintiff. It was further submitted that in fact the plaintiff was not the owner of the shop alleged to be tenanted, which shop in fact was that of the Nagar Palika Neem ka Thana, Sikar. Aside of the main controversy in the suit for eviction, the defendant stated in his written statement that the defendant was seeking to have the shop regularised in his own name by the Nagar Palika and was willing to deposit the required fee with the Nagar Palika, Neem ka Thana, Sikar, and had even sought the District Collector's intervention for the purpose. It was stated that the defendant was doing business of selling footwear from the shop in issue in the name and style of Agrawal Boot House in his own right for over 12 years and that the suit for eviction was completely misdirected on all counts. On the pleadings of both the parties, seven issues were framed. Issue No.7 as originally framed was amended, and the amended issue before the trial court loosely translated was as to whether the defendant was in occupation of shop in dispute for 12 years preceding the filing of the suit as owner and not as tenant? The burden of the said issue in the context of pleadings of defendant was put on the defendant by the trial court.
In the course of trial, aside of multiple applications and various orders passed by the trial court from time to time, some of which were also challenged in appeal and orders granted by the appellate court, as on the issue of provisional rent, the defendant moved an application before the trial court under Section 65 of the Evidence Act on or about 13-8-2009 seeking permission of the trial court for leading secondary evidence in respect of two letters dated 15-8-1982 and 6-6-1994, allegedly written by Mali Ram to the Nagar Palika Neem ka Thana, Sikar. It was stated by the defendant in the aforesaid application that he had applied to Nagar Palika for certified copy of two letters dated 15-8-1982 and 6-6-1994, but was unable to get certified copies thereof, yet had managed to unauthorisedly get copies thereof. It was submitted that in this view of the matter the defendant be allowed to lead secondary evidence qua the two aforesaid letters based on typed, uncertified, unauthorised copies obtained allegedly from the Nagar Palika Neem ka Thana, Sikar.
The plaintiff denied the said documents dated 15-8-1982 and 6-6-1994 in respect of which secondary evidence was sought to be led by defendant. It was submitted that the said letters had never been written by the plaintiff and that in any event photo copies thereof obtained unauthorisedly as admitted did not bear any endorsement or seal of the Nagar Palikar Neem ka Thana, Sikar. It was further submitted by the plaintiff that the letters in issue were not signed by the plaintiff and further did not even bear the address of the plaintiff, or any seal or endorsement by the Nagar Palika Neem ka Thana, Sikar evidencing their receipt from the plaintiff. It was submitted that from the say of defendant himself the file pertaining to the shop is issue was at the relevant time not available with the Nagar Palika, and in this view of the matter it was inconceivable that there was any truth in the say of defendant that photo copies of the letters dated 15-8-1982 and 6-6-1994 were obtained unauthorisedly from the said file with the Nagar Palika. It was further submitted that aside of aforesaid objections, letters dated 15-8-1982 and 6-6-1994 allegedly written by plaintiff to Nagar Palika were quite irrelevant to eviction proceeding before the trial court and issues framed therefor and said documents did not shed any light on issue No.7, wherein the defendant was to establish that he was in occupation and use of shop in dispute for 12 years preceding the filing of the suit in the capacity of owner of the shop and not as a tenant. It was further submitted that the signatures for whatever their worth of plaintiff did not match his signatures either on the plaint before the trial court or the Vakalatnama. In the context of aforesaid, reliance was placed on Shankar Lal Vs. The Civil Judge (Jr.Division) Shahpura [2006 (3) WLC 421] wherein it was held that when the existence of the original itself is not established and contrarily the opposite party alleges that the documents on which right to file secondary evidence is sought are forged and not authentic no application for leading secondary evidence qua such a document can be allowed. For the same proposition reliance was also placed by the trial court on the case of Ram Pratap Vs. Nar Singh Lal [1990(1) RLW 131].
On the respective submissions the trial court held that the application under Section 65 of the Evidence Act did not make out any case for allowing said two documents to be produced in evidence as secondary evidence. The court noted that there was no reason for it to hold that documents in issue 15-8-1982 and 6-6-1994 were genuine, inasmuch as aside of other objections raised by the plaintiff the documents as signed did not match the signatures of Mali Ram Modi on the plaint and the Vakalatnama, where the plaintiff had signed as Mali Ram Modi, not as Maliram(as on the letters in issue). The trial court considered the fact that the documents sought to be produced in the eviction suit of 1995 were sought to be filed with permission to lead secondary evidence after a delay of 14 years, from the filing of the suit and delay also did not warrant to be condoned. On these grounds the trial court dismissed the application filed under Section 65 of the Evidence Act by the defendant.
For impugning the dismissal of application under Section 65 of the Evidence Act, the learned counsel for the petitioner has merely reiterated the case as set up before the trial court without anything more. Counsel for the petitioner in this petition under Article 227 of the Constitution of India has not even attempted to set up any case with reference to conditionalities detailed under Section 65 of the Evidence Act, necessary to be satisfied for considering and allowing an application for leading secondary evidence. Not even a whisper has been uttered with regard to the judgments of this court be that case of Shankar Lal (supra) and Ram Pratap (supra). In my considered opinion, from the facts on record and submissions made before this court, the trial court has not committed any jurisdictional error in dismissing the application under Section 65 of the Evidence Act casually moved by the defendant. None of the conditionalities of Section 65 of the Evidence Act have even been averred in the petition or sought to be addressed even in the course of arguments before this court. The reasoning of the trial court cannot by any stretch of imagination be said to be perverse or vitiated by any misdirection in law. Having considered the matter, I am of the view that the application under Section 65 of the Evidence Act, as laid before the trial court and now as sought to be agitated before this court was wholly vacuous, without any legal foundation and a mere ruse to delay the trial of the eviction suit pending before the trial court for the last more than 14 years. The order of the trial court dismissing the application under Section 65 of the Evidence Act filed by defendant therefore deserves to be upheld and the petition in so far as challenges the said order deserves to be dismissed.
The second application dismissed by the trial court under the impugned order dated 9-11-2009 pertains to an attempt by defendant to have certain additional documents brought on record in the course of trial of eviction suit.
One the said documents pertains to the period prior to laying of the eviction suit, in which the shop was damaged and certain amounts allegedly expanded by the defendant for the repair of the shop. The second document is a notice dated 3-10-2008, by Nagar Palika, Neem ka Thana, Sikar purporting to admit that Mukesh Kumar son of the defendant Gordhan Lal was owner of shop. The third document is a copy of an application dated 20-7-2009, moved by the defendant before the District Magistrate and Collector Sikar. The fourth document is with regard to an electricity connection in the name of Mahavir Prasad, said to be cousin/ partner in business of defendant and by extension the uncle of his son Mukesh Kumar.
It is noteworthy that the said application for taking additional documents on record was moved by Mukesh Kumar son of defendant, in his individual capacity and not as Power of Attorney of the defendant. On the merits of the application, the trial court considered the matter and found that the fact of the repair of the shop in issue after the bus accident at the instance of the defendant was on record of the plaint itself, and consequently there was no occasion to take the said document on record for any worthwhile purpose. The court also noted that the plaintiff has also admitted the factum of bus accident causing damage to the shop in issue and amounts having been expanded on its repair. With regard to other document i.e. notice dated 3-10-2008, the trial court came to the conclusion that the notice merely pertained to the issue of unauthorised construction of shop without permission of the Nagar Palika, Neem ka Thana, and did not relate in any manner whatsoever to the ownership thereof. The trial court has also noted that similar notices issued by Nagar Palika, Neem ka Thana dated 6-6-1994 and 5-3-2005 were already on record and had been exhibited by Mukesh Kumar in the course of his evidence before the court. The trial court was therefore of the view that the notice dated 3-10-2008 was only a duplication of evidence which was already on record without anything more. The trial court also noted that the FIR and challan in respect of bus accident causing damage to shop in issue was already on record and had also been exhibited by Mukesh Kumar in the course of his evidence before the trial court. With regard to the electricity connection the trial court found that the bills sought to be taken on record were in the name of Mahavir Prasad, while there was no such averment in the written statement. In this view of the matter the court held that the said bills could not be taken on record. The trial court has further noted that even aside of the aforesaid fundamental defect in the application under consideration, there was no material to establish that the said electricity bills pertained to shop in issue. With regard to application dated 20-7-2009 addressed to the District Magistrate, the trial court found that in the said application the defendant had merely made an offer to deposit the required fee for regularisation of the shop by the Nagar Palika Neem ka Thana in the name of the defendant. The court found that a similar letter dated 8-3-2005 addressed by defendant to Executive Officer was already on record as Ex.A-16 and in this view of the matter the document sought to be filed as additional evidence was redundant to merits of the eviction suit. The trial court also held that the documents sought to be filed largely pertained to the year 2009 and thereafter, whereas the eviction suit was laid in 1995. The trial court, for the reasons detailed above, held that the defendant seemed only keen to further delay the adjudication of the eviction suit filed in the year 1995, by moving frivolous applications. Each of the applications was consequently dismissed with a cost of Rs.1000/-.
Heard learned counsel for the parties, and perused the material available on record of writ petition.
At the outset, it would be in place to note the limitations of this court under Article 227 of the Constitution of India in interfering with inter locutary orders passed in the course of a trial. From an analysis of the judgments of the Hon'ble Supreme Court on the scope of the powers under Article 227 of the Constitution of India, the principle that emerges is that the exercise of supervisory jurisdiction would only be available in order to maintain public confidence in the administration of justice and for intereference when the orders impugned generated issues of lack or excess of jurisdiction or were vitiated by misdirection in law or perversity on facts leading to manifest injustice to the aggrieved party. In my considered opinion, in the facts of this case as obtaining before this court, none of the aforesaid grounds are even remotely made out. A bare look at the petition as laid before this court indicates its casual nature and a routine filing by the petitioner. Not even an attempt has been made in the petition's pleadings or in the course of arguments before this court to establish the conditionalities for the exercise of powers under Section 65 of the Evidence Act. Section 65 of the Evidence Act provides that secondary evidence may be given of the existence conditions or contents of documents as detailed in clause (a) to clause (g). Not even a whisper has been made with regard to clause of Section 65 of the Act of 1872 under which the defendant was entitled to lead secondary evidence qua documents dated 15-8-1982 and 6-6-1994. On this ground alone, the application under Section 65 of the Evidence Act filed by the defendant was liable to be dismissed and was rightly dismissed. Further, the trial court has also held that there was no satisfaction with regard the authenticity of documents i.e. letters dated 15-8-1982 and 6-6-1994 purportedly written by plaintiff to Nagar Palika, Neem ka Thana in respect of which secondary evidence was sought to be led. On the say of defendant himself certified copies of said documents had not been obtained, but the defendant had managed to get unauthorisedly copies of the documents in issue from the file of Nagar Palika, Neem ka Thana. This when as per the case of defendant himself the file of Nagar Palika, Neem ka Thana pertaining to the disputed shop was not available. The trial court also found that the signatures of plaintiff landlord on the two documents in issue did not match the admitted signatures of the plaintiff on the the plaint and on the vakalatnama. In my considered opinion in the circumstances obtaining, the trial court cannot be held to have failed to exercise its jurisdiction or committed any error in dismissing the application under Section 65 of the Evidence Act filed by the defendant. The Hon'ble Supreme Court in case of H. Siddiqui Vs. A. Ramalingam [(2011) 4 SCC 240] has held that the provision of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.
Further, I am of the considered view that the trial court has taken a correct view in holding that most of the documents additionally sought to be filed were post 2009 in a suit for eviction laid in the year 1995 and that the documents largely pertained to matters already on record under other exhibits before the court. Consequently within the parameters and scope of Article 227 of the Constitution of India there is no occasion to interfere with the order passed by the trial court dismissing the defendant's application for taking additional documents on record.
Aside of dismissal of petition for the reasons detailed above, this court would also note that a composite petition has been filed challenging dismissal of two separate applications, albeit by a composite order. In my considered opinion, this tantamounts to mis-joinder of causes of action as each dismissal constituted a separate cause of action warranting an independent challenge by way of separate petitions there against. The petition therefore is vitiated by mis-joinder of causes of action and deserves dismissal also on this count.
Over all facts of the case indicate a gross misuse of the process of this court by the defendant filing the petition without any legal foundation. No attempt has been made even to distinguish the judgments of this court on the issue of the manner of leading secondary evidence as enunciated in the cases of Shankar Lal (supra) and Ram Pratap (supra). The salutary process of this court and easy access cannot be allowed to be misused by the litigants seeking not so much vindication of their rights and justice but to exploit the heavy docket of this court and use the paucity of time with the court to drag on the matters, delay trials for their own benefit. Litigation as a strategy cannot be countenanced by the court.
The suit for eviction underlying the petitioner pertains to the year 1995. Multiple applications have been moved by the defendant before the trial court and orders thereon even though irrelevant to the challenge to impugned order dated 9-11-2009 have been filed. Irrelevant pleadings and irrelevant documents filed with the petition indicates at least either a casual approach in approaching this court or even worse a determination to confuse the issue before this court and benefit from the said confusion. In the instant case the petitioner was able to persuade this court to grant interim relief under order dated 21-11-2009, consequent to which the trial of the suit for eviction (No.74/1995) has been held in abeyance for a period of about three years.
In my considered opinion, mere dismissal of the petition would not suffice the interest of administration of justice and the majesty of courts. The Hon'ble Supreme Court in case of A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Patipalanai Sangam [(2012) 6 SCC 430] has held that experience reveals that a large number of cases are filed on false claims or evasive pleas are introduced by the defendant to cause delay in the administration of justice and this can be sufficiently taken care of if the courts adopt realistic approach in granting restitution and visiting the petitioner with appropriate costs. Relying on the judgment in the case of Ramrameshwari Devi Vs. Nirmala Devi [(2011) 8 SCC 249] the Hon'ble Supreme Court has held that unless wrongdoers are denied profit or undue benefit from frivolous litigations, it would be difficult to control frivolous and uncalled-for litigations. False averments of facts and untenable contentions are serious problems faced by courts and the other problem is that litigants deliberately create confusion by introducing irrelevant and minimally relevant facts and documents. The court cannot reject such claims, defences and pleas at the first look and requires some time, at time years, before the court is able to see through, discern and reach to the truth. Noting that courts are usually short of time because of huge pendency of cases, it has been held that it is the duty of the court to take appropriate steps to uphold the truth and do justice. The Hon'ble Supreme Court in the case of A. Shanmugam (Supra) has held as under:-
43.4 Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.
43.5 It is the bounden obligation of the court to neutralise any unjust and/ or undeserved benefit or advantage obtained by abusing the judicial process.
In the aforesaid case the Hon'ble Supreme Court visited the petitioner a mere watchman with costs of Rs.25,000/-
From the facts of the instant case, it is evident that the application under Section 65 of the Evidence Act for allowing secondary evidence in respect of letters dated 15-8-1982 and 6-6-1994 was wholly devoid of legal foundation necessary for leading secondary evidence. No attempt was made before the trial court or even before this court to establish as to under which of the clause of Section 65 of the Evidence Act the application was filed by the defendant. Similarly the application for additional evidence in respect of eviction suit of 1995 was based on documents largely post 2009, when in fact similar documents had largely already been exhibited before the trial court. Further application for taking documents on record was filed by the son of defendant in his individual capacity and not as power of attorney of the defendant. I am of the considered view that the findings of the trial court that said two applications were filed solely with the intent to delay the adjudication of suit for eviction filed in the year 1995, is wholly in order. The defendant yet approached this court and was however able to persuade this court to pass an interim order dated 21-11-2009, where under the further proceeding of the eviction suit No.74/1995 were stayed, and continue till today. The delay in disposal of eviction suit has obviously worked to the advantage of the defendant and against the interest of the plaintiff. The plaintiff has expired in the meantime and now is represented by his legal heirs.
Consequently, this writ petition deserves dismissal with costs of Rs.20,000/-, aside of the costs imposed by the trial court, to be paid to the legal heirs of the plaintiff on record before the trial court, within a period of four weeks from today.
The trial court is directed to expedite the trial of eviction suit and conclude it, not later than three months from the date of receipt of certified copy of this order.
Stay application also stands dismissed.
(Alok Sharma),J.
arn/ All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.