Punjab-Haryana High Court
Darshan Singh And Ors vs Gulzar Singh And Ors on 11 November, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
VINOD KUMAR
2014.11.18 10:21
I attest to the accuracy and
authenticity of this document
Chandigarh
CR No.3566 of 2012 (O&M) [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.3566 of 2012 (O&M)
Date of decision:11.11.2014
Darshan Singh and others ...Petitioners
Versus
Gulzar Singh and others ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. G.S.Sirphikhi, Advocate,
for the petitioners.
Mr. J.S.Verka, Advocate,
for respondent no.1.
*****
RAKESH KUMAR JAIN, J.
This petition is filed against the order dated 30.04.2012, dismissing the application of defendants no.1 to 3 and 5, filed under Order 13 Rules 3 and 6 of the Code of Civil Procedure, 1908 (for short "CPC") for de-exhibiting the document Ex.P1, i.e. the Will dated 05.01.1958.
In brief, the plaintiff-respondent no.1 filed a suit for declaration that he is owner in possession of the land measuring 15 kanal 4 marlas, falling in khewat no.98, khatauni no.276, khasra nos.16R/18 and 23, situated at village Gujjarpura, Hadbast No.265, Tehsil Batala and also prayed for consequential relief of possession and permanent injunction restraining the defendants from alienating the suit land. The plaintiff has set up his title over the property in dispute on the basis of the Will dated VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [2] ***** 05.01.1958, purported to have been executed in his favour by Atma Singh. The defendants filed an application under Order 7 Rule 14, Order 11 Rule 15 and Section 151 of the CPC alleging that neither the plaintiff has placed on record the Will dated 05.01.1958 nor a copy thereof has been supplied, therefore, in the absence thereof, the defendants are not in a position to prepare their written statement. The said application was disposed of by the Trial Court on 18.03.2008 with the following order:-
"Heard on the application filed by the defendants under Order 7 Rule 14 and under Order 11 Rule 15 and Section 151 CPC. It is argued by counsel for the defendants that the plaintiff has relied upon Will dt. 5.1.1958 alleged to have been executed by Atma Singh deceased in favour of the plaintiff. It is submitted that the plaintiff be directed to produce on the record the original Will dated 5.1.1958 and also to supply copy of the same to the defendants. On the other hand, it is argued by counsel for the plaintiff that photocopy of the said Will is already on the record and he will produce the original Will at the time of evidence though he is ready to supply the copy of the same to the counsel for the defendants. As the counsel for the plaintiff has failed to place on record the original Will dated 5.1.1958 on the record, the application in hand stands disposed of. However, necessary inference will be drawn due to non VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [3] ***** production of the original Will dated 5.1.1958 by the plaintiff at the relevant time. Now to come up on 19.4.2008 for filing the written statement."
After the pleadings were over, the Trial Court framed the issues on 04.09.2009 and during the evidence, the plaintiff tendered his affidavit in his examination-in-chief and exhibited the alleged Will dated 05.01.1958 as Ex.P1. The petitioners then filed an application under Order 13 Rules 3 & 6 read with Section 151 of the CPC for de-exhibiting the document Ex.P1 alleging that since in its order dated 18.03.2008, the Court had already observed that the necessary inference shall be drawn due to non production of the original Will at the relevant time, therefore, the plaintiff has no right to produce/tender the Will in his evidence, in view of the Order 7 Rule 14, Order 11 Rule 15 and Section 151 of the CPC. The said application has been dismissed by the Trial Court on 30.04.2012.
Counsel for the petitioners has argued that the Trial Court has committed an error of jurisdiction in allowing the plaintiff to tender the original Will dated 05.01.1958 in his examination-in-chief, without seeking prior permission of the Court in terms of Order 7 Rule 14(3) of the CPC. It is submitted that either the Original Will should have been made a part of the plaint or should have been tendered at any time before the issues were framed but thereafter it could be tendered only with the permission of the Court which has not been obtained by the plaintiff, therefore, the said document deserves to be de-exhibited and the impugned order is patently illegal in which the Trial Court has observed that the plaintiff has brought VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [4] ***** the Will in his evidence, therefore, the application filed by the defendants is without any merit. Even otherwise, mere exhibition of document does not dispense with its proof and no prejudice would be caused to the defendants as they would be having the opportunity to cross-examine the witness with regard to the genuineness of the document.
In support of his submission, learned counsel for the petitioners has relied upon a judgment of the Jharkhand High Court in the case of Karpuri Devi and another v. Rabindra Pratap Singh and others, 2005 AIHC 4320 and a judgment of the Gauhati High Court in the case of Subhash Trading Co. & Ors. v. Amolok Chand Surana, 2012(2) Civil Court Cases 471 (Gauhati).
On the other hand, learned counsel for respondent no.1 has argued that there is no provision in the CPC regarding de-exhibiting of a document which has been exhibited and has relied upon a judgment of this Court in the case of Punjab Beverages Pvt. Ltd. v. Col. A.S. Judge, 2009(4) RCR (Civil) 895.
I have heard learned counsel for the parties and perused the record.
There is no dispute that the Civil Suit of the plaintiff seeking declaration of his title hinges upon the Will dated 05.01.1958. It is also not in dispute that when the suit was filed, the original copy of the Will was not attached.
In this regard, it would be relevant to refer to Order 7 Rule 14 and Order 8 Rule 1A of the CPC, which read as under:- VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [5]
***** Order 7 Rule 14 of the CPC
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, wherever 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."
Order 8 Rule 1A of the CPC 1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.-- (1) VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [6] ***** Where a defendant bases his defence upon a document or relies upon document in his possession or power, in support of his defence or claim for set-off or counter- claim, he shall enter such documents in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced 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
documents--
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory."
Both the aforesaid provisions have been made part of the Code vide the Code of Civil Procedure (Amendment) Act, 1999, enforced w.e.f. VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [7]
***** 01.07.2002. Earlier to this provision, Order 7 Rule 18 of the CPC was there, which read as under:-
"18. Inadmissibility of document not produced when plaint filed.-- 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, and which 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.
(2) Nothing in this rule applies to documents produced for cross-examination of the defendant's witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory."
Order 7 Rule 18 of the CPC was omitted by the Code of Civil Procedure (Amendment) Act, 2002 w.e.f. 01.07.2002. However, Order 7 Rule 14 of the CPC clearly provides that where the plaintiff sues upon a document or relies upon a document, which is in his possession or power, he should enter such document in a list (list of documents) and shall produce the same in the Court when the plaint is presented by him and at the same time deliver the document and a copy thereof, to be filed with the plaint, but where such document is not in possession or power of the plaintiff, he is required, wherever it is possible, to state as to in whose possession or power the said document is there. Order 7 Rule 14(3) of the VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [8] ***** CPC further provides that after such a document, which ought to be produced in Court by the plaintiff when the plaint is presented, is not so produced or not entered in the list to be annexed with the plaint, would be allowed, with the leave of the Court, to be received in evidence on behalf of the plaintiff at the time of hearing of the suit, but Order 7 Rule 14(3) of the CPC would not be applicable if the document is produced for the cross- examination of the plaintiff's witnesses or handed over to a witness merely to refresh his memory. Similarly, Order 8 Rule 1A of the CPC casts a duty upon the defendant to produce the document upon which relief is claimed and relied upon by him. The language is para materia to that of Order 7 Rule 14 of the CPC.
Order 13 of the CPC deals with production, impounding and return of the documents. Order 13 Rule 1 requires a specific mention and is reproduced as under:-
"1. Original documents to be produced at or before the settlement of issues.-- (1) the parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.
(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 VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [9] ***** directs.
(3) Nothing in sub-rule (1) shall apply to
documents--
(a) produced for the cross-examination of the
witnesses of the other party; or
(b) handed over to a witness merely to refresh
his memory."
According to this provision, the parties to the suit, on or before the settlement of the issues, shall produce the entire documents in evidence in original where the copies thereof have been filed along with plaint or written statement, but again this provision is not applicable if the document is produced in cross-examination of the witness of the other party or handed over to the witnesses merely to refresh his memory.
I have already made a reference to Order 7 Rule 14 of the CPC which provides for annexing the documents with the plaint and I would now refer to Order 11 Rule 15 under which the petitioners had also filed the application:-
"15. Inspection of documents referred to in pleadings or affidavits.-- Every party to a suit shall be entitled at or before the settlement of issues to give notice to any other party, in whose pleadings or affidavits reference is made to any document or who has entered any document in any list annexed to his pleadings, or produce such document for the inspection VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [ 10 ] ***** of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit."
The said application filed under Order 7 Rule 14, Order 11 Rule 15 and Section 151 of the CPC was disposed of by the Trial Court on 18.03.2008 as it was found that a photocopy of the Will was already on record and the original Will would be produced at the time of evidence, but he was ready to supply the copy to the counsel for the defendants.
Order 7 Rule 14 and Order 8 Rule 1A of the CPC do not talk of annexing of original documents with the plaint and the written statement as the tendering of original documents finds mention in Order 13 Rule 1 of the CPC which provides that both the parties, on or before the settlement of issues, should tender all the documents/evidence in original where copies thereof have been filed with the plaint or the written statement. Therefore, while passing the order on 18.03.2008, the Trial Court had observed that the necessary inference would be drawn for non production of the original Will VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [ 11 ] ***** at the relevant time, though it has been found that a photocopy of the Will was already annexed with the plaint which would satisfy the requirement of Order 7 Rule 14 and order 11 Rule 15 of the CPC and when the plaintiff entered into the witness box as PW1, he tendered his affidavit in his examination-in-chief and the original Will was taken on record as Ex.P1. This exhibition of the document is in accordance with Order 13 Rule 4 of the CPC for which the petitioners has filed the application under Order 13 Rules 3 & 6 of the CPC for de-exhibiting the document Ex.P1 as Order 13 Rule 3 provides for rejection of irrelevant or inadmissible documents and Order 13 Rule 6 of the CPC provides for endorsements on documents rejected as inadmissible in evidence. Both Order 13 Rules 3 & 6 are hereby reproduced for the ready reference:-
"3. Rejection of irrelevant or inadmissible documents.-- The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection."
"6. Endorsements on documents rejected as inadmissible in evidence.-- Where a document relied on as evidence by either party is considered by the Court to be inadmissible in evidence, there shall be endorsed thereon the particulars mentioned in clauses (a), (b) and
(c) of rule 4, sub-rule (1) together with a statement of its having been rejected, and the endorsement shall be VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [ 12 ] ***** signed or initialled by the Judge."
The learned Trial Court, while dismissing the application of the petitioners, has observed that if the original Will is not allowed to be brought on record as Ex.P1, the suit field by the plaintiff on its basis would be frustrated and also the exhibiting of documents does not dispense with its proof. It was also observed that no prejudice is going to be caused to the defendants as defendants have the opportunity to cross-examine the witness with regard to the genuineness of the Will dated 05.01.1958.
From the resume of the aforesaid facts and circumstances, the precise question which arises for consideration is as to "whether the original documents, after the issues have been framed, could be tendered by a party in his examination-in-chief or the leave of the Court is required?"
I have already taken a view in CR No.6812 of 2013 titled as Aggarwal Vidya Pracharni Sabha v. Municipal Corporation Faridabad and another, decided on 30.09.2014, while discussing Order 8 Rule 1A and Order 11 Rule 15 of the CPC, that there is no absolute rule that if the document referred to in the pleadings much-less the written statement is not attached, it cannot be produced in evidence lateron, as the discretion vests with the Court to receive such a document by granting permission to the party to the suit, as the case may be.
In Aggarwal Vidya Pracharni Sabha's case (supra), the suit was filed for declaration challenging certain memos issued by the Municipal Corporation, Faridabad. The defendants made a reference to some VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [ 13 ] ***** documents in the written statement but copies thereof were not attached. The plaintiff in that suit filed an application under Order 8 Rule 1A of the CPC seeking direction to the defendants to produce the documents mentioned in the written statement and also to delete the unnecessary pleadings in the written statement. The trial Court dismissed that application. In that case, the plaintiff had urged that Order 8 Rule 1A of the CPC provides that if the defendant relies upon any document in his possession or power, he shall enter such document in a list and produce it in the Court when the written statement is presented by him. Order 11 Rule 15 of the CPC was also pressed into to contend that every party to a suit shall be entitled to give notice to any other party, in whose pleadings or affidavits reference is made of any document or who has entered any document in any list annexed to his pleadings, to produce such document for the inspection of the party giving such notice and to permit him to take copies thereof.
It was decided in that case that as per Order 8 Rule 1A(3) of the CPC, if the document, which ought to be produced in the Court by the defendant and is not so produced, can be received in evidence during the hearing with the leave of the Court. Similarly, in Order 11 Rule 15 of the CPC also, discretion has been given to the Court to grant leave to give opportunity to put such document in evidence afterwards. It was thus decided that the plaintiff cannot compel the defendant to produce the documents with the written statement which could lateron be produced in evidence subject to leave of the Court.
In the present case, the grievance that has been raised by the VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [ 14 ] ***** petitioner is that the original Will tendered by the plaintiff in his examination-in-chief has to be discarded because no leave of the Court has been obtained, as required under Order 7 Rule 14(3) of the CPC. In this regard, the judgment relied upon by counsel for respondent no.1 in Punjab Beverages Pvt. Ltd.'s case (supra) also says that the document which the plaintiff failed to produce along with the plaint could not be produced later except in the circumstances mentioned in Order 7 Rule 14(3) of the CPC or the document could also be brought on record during cross-examination of the defendant's witnesses as provided under Order 7 Rule 14(4) of the CPC.
In Subhash Trading Co. & Ors.' case (supra), it has been held that material document which was not produced before the settlement of issues can be placed on record with the leave of the Court but such document, exhibited without leave of the Court, would be admissible in evidence.
It is also pertinent to mention that mere marking of a document does not dispense with the formal proof because marking of a document as an exhibit, be it either by use of alphabets or numbers, is only for the purpose of identification of that document. The documents filed by either party on the file do not become part of the original record but when they are tendered or produced in evidence and the Court admits the documents in evidence, then it constitutes the evidence when they are proved or not proved or proved when the Court applies its mind at the time of final hearing of the lis. However, referring to the facts of the present case, there is no procedure for tendering of original documents after settlement of VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.3566 of 2012 (O&M) [ 15 ] ***** issues without the leave of the Court.
Thus, in view of the aforesaid discussion, I am of the considered opinion that leave of the Court is necessary if the original document is not tendered on or before the settlement of the issues and its admissibility would be considered by the Court at the time of final arguments.
With these observations, the present revision petition is disposed of.
November 11, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE