Madhya Pradesh High Court
Jhadulal vs Nanho on 19 August, 2019
Author: Atul Sreedharan
Bench: Atul Sreedharan
1 MP-4070-2019
The High Court Of Madhya Pradesh
MP-4070-2019
(JHADULAL Vs NANHO)
1
Jabalpur, Dated : 19-08-2019
Mr. Umesh Trivedi, learned counsel for the petitioners. The present petition has been filed by the petitioners herein who are aggrieved by the order dated 26.07.2019 passed by the Court of the learned First Civil Judge, Class-II, Balaghat, District-Balaghat (M.P.) in R.C.S. No.85-A/2015 by which an application filed by the petitioners under Order 7 Rule 14 CPC was dismissed by the learned trial Court.
The petitioners, who are plaintiffs before the learned trial Court, have filed a civil suit for declaration of title and permanent injunction. The application under Order 7 Rule 14 CPC is Annexure-P/4 at page No.33. It would be essential to reiterate the pleadings in the said application.
In paragraph No.1, the plaintiffs say that they want to place on record the three documents. In paragraph No.2, the plaintiffs state that the said documents were lost in the old files on account of which they could not produce the same before the learned trial Court earlier. In paragraph 3, the plaintiffs state that today, i.e. 19.07.2019 they were able to recover the said documents and that they have placed them before the Court along with the application without any delay and that the same are essential for a just decision in the case. In paragraph No.4, the plaintiffs have stated that in the event the plaintiffs are not given the permission to place the said documents on record, irreparable prejudice would be caused to their case. Under the circumstances, he has prayed that his application under Order 7 Rule 14 CPC be allowed.
Learned counsel for the petitioners has stated that the impugned order is in grave error on account of the fact that the learned trial Court did not examine the provisions of sub-rule (4) of Order 7 Rule 14 CPC.
Rule 14 Order 7 CPC firstly provides that where a plaintiff sues upon a Digitally signed by JULIE SINGH Date: 22/08/2019 11:14:31 2 MP-4070-2019 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. Secondly, the said Rule provides that 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. Thirdly, Rule 14 provides that 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. The fourth provision is sub-rule (4) which commences with the non-obstante clause that sub-rules (1), (2) and (3) of Rule 14 CPC shall not apply to a document produced for the cross-examination of plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.
Learned counsel for the petitioners has placed before this Court to the judgment of the Supreme Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India reported in AIR 2005 Supreme Court 3353 in which, the Supreme Court has held that the words "plaintiff's witnesses" in sub-rule is actually is an inadvertent error on the part of the draftsmanand that the same shall read as "defendant's witnesses" till such time the legislature corrects the same.
This Court has gone through the impugned order passed by the learned Court below dated 26.07.2019. The contention of the learned counsel for the petitioners is that under sub-rule (4) of Rule 14 Order 7 CPC, the restrictions on producing documents under sub-rules (1), (2) and (3) stand waved and that the same can be produced/adduced in evidence despite the aforementioned restrictions.
This is the sole argument of the learned counsel for the petitioners. However, the application that is moved before the learned Court below does not state that the said documents are required for the cross-examination of the Digitally signed by JULIE SINGH Date: 22/08/2019 11:14:31 3 MP-4070-2019 defendant's witnesses or the same is required for refreshing the memory of anyone. The application clearly states that the said documents, though available with the petitioners, were misplaced in the file which the petitioners discovered on 19.07.2019. There is no averment to the effect that the said three documents were actually to be used only for the purpose of cross- examining the defendants' witnesses or to refresh their memory. A plain reading of the application reveals that the plaintiffs have desired to place the documents on record were actually under the provisions of sub-rule (3) of Rule 14 Order 7 CPC and not under sub-rule (4) as not a single word has been stated therein which would satisfy the provisions of sub-rule (4) of Rule 14 Order 7 CPC.
Likewise, in the impugned order also it is reflected that nothing more was argued before the learned Court below other than what was pleaded in the application under Order 7 Rule 14 CPC. Even before the learned trial Court, no arguments were ever forwarded under sub-rule (4) of Rule 14 Order 7 CPC. A plain reading of sub-rule (4) of Rule 14 discloses that though an exception or an implied waiver from sub-rules (1), (2) and (3) of Rule 14, is effected, no new documents can be placed on record or marked as exhibits by way of sub-rule (4) of Rule 14. They can only be used to confront the witness in the course of cross-examination and a reference may be made thereto but the same cannot be taken on record and exhibited as evidence. The documents which need to be taken on record and exhibited as evidence must satisfy the conditions which are placed in sub-rules (1), (2) and (3) of Rule 14 Order 7 CPC.
Under the circumstances, this Court does not find any perversity in the order passed by the learned Court below and the petition is hereby dismissed.
(ATUL SREEDHARAN) JUDGE Digitally signed by JULIE SINGH Date: 22/08/2019 11:14:31 4 MP-4070-2019 julie Digitally signed by JULIE SINGH Date: 22/08/2019 11:14:31