Madhya Pradesh High Court
Vinod Kumar vs Nafees Akhtar on 18 January, 2017
1 W. P. No. 204/ 2017
(Vinod Kumar & Another Vs. Nafees Akhtar & Others)
18.01.2017
Shri Kamal Jain, learned counsel for the
petitioners.
Shri M.B. Mangal, learned counsel for the
respondents.
This petition has been filed by the petitioner under Article 227 of the Constitution of India challenging the order dated 19.12.2016 passed by the Court of 12th Civil Judge Class-II, Gwalior, in Civil Suit No.11-A/2014, whereby two applications filed by the petitioner who is defendant before the Trial Court, one under Order 8 Rule 1A(3) of C.P.C. and another application under Order 6 Rule 17 of C.P.C., have been rejected by the Trial Court.
It is the contention of learned counsel for the petitioner that the application under Order 8 Rule 1A(3) of C.P.C. was filed to bring certain photographs on record to show that plaintiffs are carrying-out business of Chikki and Batasha from the building situated at Suraiyapura and these photographs could not be taken prior to 20.11.2016 and since they are necessary for adjudication of the case, they be taken on record.
Learned Trial Court has dismissed this application on the ground that when the photographs does not contain pictures of the plaintiff and his son at the site, then it is not clear that how these photographs are relevant for adjudication of the controversy which deals with eviction proceedings undertaken by the plaintiff against the defendants 2 W. P. No. 204/ 2017 (Vinod Kumar & Another Vs. Nafees Akhtar & Others) and also for recovery of arrears of rent. Thus, this application has been rejected.
It is submitted by learned counsel for the petitioner that valuation of evidence was not required at the time of filing of the documents and Trial Court has erred in making evaluation of evidence at the time of filing of the documents which is not permissible.
On the other hand, learned counsel for the respondents submits that plaintiff evidence is already over. This Court had already directed the Trial Court to decide the suit within a period of six months and the applications have been filed with a view to delay the proceedings, therefore, the Trial Court has rightly dismissed the application.
It is apparent from the provisions contained in Order 8 Rule 1A that the defendant is duty-bound to produce the documents upon which he is basing his defence along with a list, when the written statement is presented.
Order 8 Rule 1A(2) provides that the documents which are not in the possession or power of the defendant, shall wherever possible, be stated as to in whose possession or power it is.
Order 8 Rule 1A(3) provides that the documents which ought to be produced by the defendant, but are not produced, shall not be produced without the leave of the Court.
In the present case, what is to be examined is whether the Court has acted prudently while denying 3 W. P. No. 204/ 2017 (Vinod Kumar & Another Vs. Nafees Akhtar & Others) the leave to receive the documents. It is apparent and admitted that plaintiff evidence is over, therefore, any document which would have been filed by the defendant, now could not have been rebutted properly without permitting the plaintiff to lead further evidence on such documents and further, no cogent reason has been assigned for not producing documents in time, thus, in the opinion of this Court, learned Trial Court has not committed any illegality in dismissing the application under Order 8 Rule 1A(3) of C.P.C.
In regard to the application under Order 6 Rule 17 of C.P.C., learned counsel for the petitioner has placed reliance on the judgment of this Court in the case of Sitaram & Another Vs. Ramgopal as reported in 1997 (2) JLJ 54, wherein this Court has held that while considering the amendment application, merits and demerits are not to be considered at that stage. But, this judgment is prior to the amendment in the provisions contained in Order 6 Rule 17, wherein a proviso has been added through the amendment that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised matter before commencement of the trial.
In the present case, there is no material on record to show that due diligence was exercised by the party.
As far as the application under Order 6 Rule 17 4 W. P. No. 204/ 2017 (Vinod Kumar & Another Vs. Nafees Akhtar & Others) of C.P.C. is concerned, the defendant wanted to amend his written statement saying that Mohd. Rahees and Mohd. Azhar, for whose requirement, eviction of suit premises was sought, one out of them, has shifted to Etava and is carrying-out business of tent house, but, no date has been mentioned as to when such shifting took place and since when Mohd. Azhar is carrying-out business at Etava and what is the source of information and therefore, in the light of the law laid-down by this Court in the case of Dashrath & Another Vs. Raju Bai & Anotehr as reported in 2015(1) MPLJ 92, the Trial Court has rightly held that no material was produced to show that inspite of due diligence, the defendant could not raise the matter before commencement of trial and therefore, in the light of the law laid-down in the case of Dashrath Vs. Rajubai (Supra), the application for amendment has been rightly dismissed having been filed after commencement of the trial. Same is the ratio of the judgment of this Court in the case of Radha Bai (Smt.) Vs. Shankar Lal Kachhi as reported in ILR 2015 MP 2352, therefore, in the light of the law laid-down by the Apex Court in the matter of Ajendra Prasad Ji N. Pandey & Another Vs. Swami Keshavrakeshdasji N. & Others as reported in (2006) 12 SCC 1, so also in the light of the law laid-down in the case of J. Samuel & Others Vs. Gattu Mahesh & Others as reported in 2012(3) MPLJ 37 (SC), amendment has 5 W. P. No. 204/ 2017 (Vinod Kumar & Another Vs. Nafees Akhtar & Others) been rightly disallowed, which was apparently in the knowledge of the concerning party on the date of filing of the pleadings as no specific details have been furnished. Thus, there is no illegality in the impugned order calling for interference in exercise of authority under Article 227 of the Constitution, thus, the petition fails and is dismissed.
(Vivek Agarwal) Judge @PK