Gauhati High Court
Md. Mafizul Haque & 4 Ors vs Md. Istiaque Khan & 3 Ors on 19 June, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP 89 of 2016
MD. MAFIZUL HAQUE & 4 ORS. .....Petitioners
-Versus-
MD. ISTIAQUE KHAN & 3 ORS. .....Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. B.K. Singh, Mr. A. Ikbal, : Ms. A. Begum.
Advocates for the Respondents : Mr. A. Sattar, Mr. Z. Mukit, : Mr. H.K. Baruah, Ms. R. Hussain.
Date of hearing : 16.06.2017.
Date of judgment and order : 19.06.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. B.K. Singh, the learned counsel for the petitioners and Mr. A. Sattar, the learned counsel appearing for the respondents.
2) The challenge in this application under Article 227 of the Constitution of India is the common order dated 04.09.2015 passed by the learned Munsiff No.2, Tinsukia, in Title Suit No. 18/2004, thereby rejecting petition No. 316/15 filed by the petitioners/defendants to allow them to file additional documents and further rejecting petition No. 776/15 for filing additional written statement.
3) At the outset, the learned counsel for the petitioners has, upon instructions, submitted that he does not press for relief in the matter of rejection of petition No. 776/15, which contained prayer for allowing the petitioners to file CRP 89/2016 Page 1 of 8 additional written statement. Therefore, the challenge now remains in respect of rejection of petition No. 316/15 filed allow for allowing the petitioners/defendants to file (i) the jamabandi of periodic patta No. 379 and Dag No. 512 and 513, containing entry dated 05.01.1950 of mutation of name of Dil Mohammad by way o purchase, (ii) construction permission issued on 13.09.1968 and 02.04.1969 for construction of house on land covered by Dag No. 512 and 513 as additional documents. In the said petition No. 316/15, the petitioners/defendants had projected that they had recently been able to trace out an old file containing the said documents, which was not earlier available in their hands. The respondents/ plaintiffs contested the said petition by filing their written statement and upon hearing the learned counsels for the parties, the learned court below was pleased to reject the said prayer on the ground that if the documents which was proposed to be filed are much prior to the institution of the suit, hence, it is presumed that the petitioners/ defendants were aware about its existence at the time of filing of the written statement, but they failed to state about the same in their written statement. The learned court below arrived at a conclusion that the petition has been filed merely to add to their defense, which should have been taken much earlier or that they have slept over their right, if any, for so long as to defeat their right and the said petition was rejected.
4) The learned counsel for the petitioners, by referring to various paragraphs of the written statement filed by the petitioners, has submitted that the reference to the contents of the above referred documents are available in their written statement. Those documents, which are more than 30 years old, was not known to them and only when they retrieved an old file, they could know about the said documents. Hence, the question of making a statement as to in whose custody the document was could not have arisen without any prior knowledge about their existence. He has submitted that the court not only have ample powers under the provisions of Order VIII Rule 1(A)(3) of the Civil Procedure Code (hereinafter referred to as 'CPC') to accept documents at a belated stage on being satisfied as to the causes shown, but also retains power CRP 89/2016 Page 2 of 8 under section 151 CPC to accept the documents at any stage. It is submitted that on refusal of the trial court to admit documents, even at the appellate stage, prayer can still be made for allowing the affected party to be allowed to introduce additional documents at the appellate stage and prove the same under the provisions of Order XLI Rule 27 CPC. Hence, there was no impediment to permit the petitioners/ defendants to introduce such documents at the trial stage as it would not require any amendment of pleadings. In support of his contentions, the learned counsel for the petitioners has placed reliance on the judgment of this Court, rendered in the case of Raifuddin Ahmed V. Om Prakash Khakolia & Ors., reported in 2011 (2) GLT 289.
5) Per contra, the learned counsel appearing for the respondents has supported the impugned order and submitted that the petitioners have not been able to make out a satisfactory explanation about the belated production of the document. The admitted case projected by the petitioners is that they had the old file in their custody but found it recently, which is not any explanation, and is far from being a satisfactory explanation for not being able to produce the said documents at the appropriate stage. It is also submitted that if the documents are allowed to be introduced at this stage of the suit. It is also submitted that the learned court below had passed a speaking order and there is no palpable error in the said well considered order and, as such, the learned counsel appearing for the respondents has prayed for dismissal of the present revision.
6) Owing to the short issue involved in this application, it is deemed fit to dispose of this application at the admission stage itself.
7) This court has considered the arguments advanced by the learned counsels for both the sides and has also perused the materials available on record. It appears that in the pleadings, the basic foundation are available relating to the said documents, viz., (i) the jamabandi of periodic patta No. 379 and Dag No. 512 and 513, containing entry dated 05.01.1950 of mutation of CRP 89/2016 Page 3 of 8 name of Dil Mohammad by way of purchase, (ii) construction permission issued on 13.09.1968 and 02.04.1969 for construction of house on land covered by Dag No. 512 and 513.
8) This Court, in the case of Raifuddin Ahmed (supra), has held as extracted below:-
(17) Having heard the learned counsel of the parties and on perusal of the provisions of Order 8, Rule 1 (A) 3, this Court is of considered opinion that the Court is not prevented by Legislature from allowing the prayer for accepting the document, even when the document is produced in a belated stage, however subject to the condition that delay in filing is properly explained to the Court and if explained, the Court may have to lean in favour of receiving the documents since it is the fundamental principle that the parties should be permitted to let in all possible evidence which are relevant for the purpose of adjudicating the matters in controversy before the Court. Rejection of prayer for accepting documentary evidence on a technical ground or to prevent the party from producing the evidence should be only when the delay caused in filing such document is deliberate and that too, the delay is caused to prolong the suit.
(18) It also appears from the Order 8, Rule 1 (A)(3) that the Legislature does not create any bar to accept a document in the belated stage, if the same is necessary for proper adjudication of the matter in controversy before the Court. This Court is of further opinion that the provisions of Rule 1 (A)(3) not only confer power to the trial Court to receive the document, rather the same is also akin to the power vested with the appellate Court to receive documents under Order 41, Rule 27 of the Code wherein it is mentioned that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, but if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or the Appellate Court CRP 89/2016 Page 4 of 8 requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined.
(19) The aforesaid provisions of Order 41, Rule 27 clearly emphasize that not only the trial Court has the power to accept the relevant document in a belated stage for proper adjudication of the matter before it, but the Appellate Court also has the power to accept such a document and the Court can not only accept document, but also can examine the witnesses, if such examination is necessary to enable it to pronounce judgment or for any other substantial cause.
(20) In Pandurang G. Dodke Vs. Lanka P. Kshirsagar and Anr. , AIR 2005 Bombay 427, the High Court of Bombay permitted to produce the documents in an appellate stage. In Assam Hindu Mission Vs. Elaboris Tron, 1999 (1) GLT 198: (1999) 1 GLR 380, while examining the order dated 2.7.97 passed by the learned District Judge/Additional Deputy Commissioner, Shillong in Title Civil Appeal No. 2 (T) of 1992 whereby the learned Appellate Court rejected the petition of the petitioner of that case for adducing the additional documentary evidence, this Court ultimately allowed the prayer of the petitioner stating inter alia, "the present appellant herein did/does not take up any new case with the new plea as there is a pleading of the parties with regard to their title and ownership over the suit land for which the related Issue No. 4 namely, 'who has got the valid right, title and interest over the suit land?' was framed by the learned Trial Court. It is also well settled that when additional evidence is admitted, the other side should be given an opportunity to review it. It is also true that the first Appellate Court should exercise the power conferred upon it under Order 41, Rule 27 of the C.P.C cautiously and sparingly and proper reason should be recorded and minuted, and when additional evidence came into existence some time after the disposal of the suit, the Appellate Court would be justified in admitting even at the appellate stage if the Court thinks that, but for it there would remain some inherent lacuna before the Court. In my considered view, there is substantial cause and the first Appellate Court require those documents to be produced and those two witnesses to be examined so as to enable the first Appellate Court to determine the CRP 89/2016 Page 5 of 8 real points in controversy between the parties and to pronounce its judgment to meet the ends of justice. As discussed above, those documents so far the appellant-plaintiff sought for producing the same as additional evidence before the Appellate Court are very important and essential for determination of the real points in controversy between the parties, particularly in determining the related Issue No. 4 as mentioned above.
(21) xxxx.
(22) From the aforesaid contention of the opposite parties defendants, it appears that the alleged executor of the sale deed No. 1834/97 was died in the year 1995 whereas the alleged sale deed on which the petitioner plaintiff sought for declaration of their title was executed about two years later than the death of the alleged executor Gour Mohan Das. Therefore, according to this Court, the learned trial Court rightly allowed the prayer for accepting the document. In his order, the learned Civil Judge also stated that in his view, 'there is no possibility of the plaintiff being prejudiced.' Even for the argument sake, the submission of Mr. Ali that the trial Court had no power to accept such an application under Order 8, Rule 1 (A)(3), then also the trial Court has the power to accept such documents in exercise of its power under 151 of the CPC as the Court is established not to do injustice on the ground of hyper-technicality when the procedural law is a hand-
made law, but to do substantial justice to a justice seeker. Therefore, according to this Court, by way of passing the impugned order, the Court below did not commit any error, rather done substantial justice as the said document would go to the root of the claim of the petitioner plaintiff so far as the opposite parties defendants are concerned. The universally accepted maxim, rather, principle of law is that, "justice must not only done but must also appear to the done". The aforesaid principle has also been accepted and approved in several decisions of the Apex Court and one of those decision of the Apex Court is in the case of Ashok Kumar Yadav Vs. State of Haryana, AIR 1987 SC 454."
9) In view of above, this court finds that the issue relating to additional documents is now no longer res-integra. In the present case in hand, the documents are of such nature that it would assist the learned trial court to CRP 89/2016 Page 6 of 8 arrive at a just and proper decision. Moreover, the petitioners/ defendants have explained the 'good or sufficient cause' which prevented them from filing the documents at an appropriate stage. Going by the submissions made by the learned counsels for the parties, there is no doubt that the documents sought to be introduced are all more than 30 years old. The documents did not belong to the petitioners but were of their predecessor-in- interest and, as such, it cannot be presumed that the petitioners/ defendants had full knowledge of those documents and there was kept out of the scrutiny of the Court deliberately and/or intentionally. Therefore, in the considered opinion of this Court, the learned Court below ought to have allowed the petitioners/ defendants to file those documents, though belatedly.
10) Thus, in view of the ratio laid down by this Court in Raifuddin Ahmed (supra), the impugned order is found to suffer from jurisdictional error and, as such, this is found to be a fit case for exercising extra-ordinary supervisory jurisdiction under Article 227 of the Constitution of India to set at right the jurisdictional error which has crept in the impugned order by rejecting petition No. 316/15 filed by the petitioners/defendants to allow them to file additional documents. However, this court declines relief to the petitioners in the matter of rejection of petition No. 776/15 for filing additional written statement, as relief in respect of the same has been abandoned by the learned counsel for the petitioners.
11) Therefore, the present revision petition is allowed to the extent as indicated above. The learned Court of Munsiff No.2, Tinsukia, shall now allow the defendants to file additional documents, viz., (i) the jamabandi of periodic patta No. 379 and Dag No. 512 and 513, containing entry dated 05.01.1950 of mutation of name of Dil Mohammad by way o purchase, and (ii) two construction permissions issued on 13.09.1968 and 02.04.1969 for construction of house on land covered by Dag No. 512 and 513 as additional documents in Title Suit No. 18/2004.
CRP 89/2016 Page 7 of 812) The parties are left to bear their own cost. The parties are at liberty directed to appear before the learned trial Court on 05.07.2017 without any notice for appearance, and seek further instructions from the said learned Court.
JUDGE Mkumar.
CRP 89/2016 Page 8 of 8