Gauhati High Court
Anurupa Roy [Rupa] & 2 Ors vs Ajit Lal Kar on 7 June, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRP(I/O) 92 OF 2017
Smti. Anurupa roy (Rupa) & others ... Petitioners
-Versus-
Shri Ajit Lal Kar ..Respondent
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
Advocates for the Petitioners : Mr. PK Deb Roy,
Mr.T. Roy,
Mr. S. Dey, Advs.
Advocates for the Respondents : Mr. G.N. Sahewalla, Senior Counsel,
: Ms. B. Sarma.
Date of judgment and order : 07.06.2017.
JUDGMENT AND ORDER (ORAL)
This matter has been taken up for hearing at the admission stage. I have heard Mr. T. Roy, the learned Counsel for the petitioners and Mr. G.N. Sahewalla, learned Senior Counsel assisted by Ms. B. Sarma, the learned Counsel for the respondent.
2) The order dated 02.11.2016 passed by the learned Munsiff No.1, Cachar, Silchar, in T.S. No. 61/2011 is impugned in this application under Article 227 of the Constitution of India, by which the petition filed by the petitioners/ defendants under section 30 read with section 151 of the Civil Procedure Code to call for the records and to order production of two registered deeds from the Sub- Registry, Cachar, was rejected.
CRP (I/O) 92/2017 Page 1 of 103) Owing to the nature of reliefs as sought for in this revision, it is not deemed necessary to burden this judgment with the respective pleadings of the parties.
4) The learned counsel for the petitioners has submitted that on 02.11.2016, which was the date fixed for filing of evidence-on- affidavit by the defendants, the petitioners filed a petition under section 30 read with section 151 of the Civil Procedure Code containing the prayer to pass an order to call for the two registered deeds from the Sub- Registry at Cachar and to direct the concerned to produce the said records and to depute one capable person to prove the genuine one.
5) The learned Munsiff No.1, Silchar by an order dated rejected the said petition, which was numbered as Petition No. 181/07 dated 02.11.2016, and closed the evidence of the defendant's side. Aggrieved by the said order dated 02.11.2016, the present application has been filed.
6) As per the said impugned order, the evidence of the defendant's side was closed by order dated 06.11.2013 and the suit was posted for argument on 29.11.2013. The original defendant thereafter, approached this Court by filing CRP No. 111/2013 challenging the order dated 06.11.2013. During the pendency of the said revision, the original defendant had died and the present petitioners were substituted in place of the deceased defendant. After substitution was allowed, the present petitioners were allowed to file their written statement and by filing petition No. 76/22, the petitioners made a prayer before the learned trial court to allow them to adduce defendant's witness. The said CRP No. 111/13 was disposed off by this Court by order dated 10.06.2016 by directing the learned trial court to take up the herein before mentioned petition No. 76/22 for consideration.
7) Thereafter, by order dated 09.08.2016, the learned trial court allowed petition No. 76/22 on condition that the petitioners- defendants shall adduce CRP (I/O) 92/2017 Page 2 of 10 their evidence on the next date i.e. 17.09.2016. However, on 17.09.2016, the petitioners herein did not examine their witness but prayed for adjournment on the ground that they did not receive the certified copies required for giving evidence. As per order dated 17.09.2016, the learned trial court held that although the prayer for adjournment did not deserve to be allowed, but for the ends of justice, the adjournment was reluctantly allowed with a cost of Rs.500/- as condition precedent, and also with a condition that the petitioners- defendants shall adduce evidence without fail on the next date, i.e. 02.11.2016. However, on 02.11.2016, the petitioners instead of adducing their evidence, took up a plea that they had applied for certified copies which are yet to be received.
8) The learned trial Court had held that the petitioners had not disclosed that for which document, they had applied for the certified copies or the date when such copies were applied for, or for what reasons the copies were not received by the petitioners. It was further held that the records does not reveal why the petitioners could not make prayer for production of the documents at an early stage or on 17.09.2016, even when they knew that they were required to adduce their evidence on 17.09.2016 without fail. Hence, by arriving at a finding that the petitioners were negligent and as the suit was an old pending suit, the petition was not liable to be allowed. Resultantly, the evidence of the defendants was closed and the suit was fixed for final argument.
9) The learned counsel for the petitioners submit that the court had inherent power to allow adjournment as sufficient causes were shown which prevented the petitioners from adducing their evidence in the suit. It is also submitted that the past conduct of the petitioners could not have been made a ground to reject their genuine prayer for adjournment. It is also submitted that the document, if allowed to be produced, would enable the learned trial court to effectually decide the real issues in controversy. The learned counsel for the petitioners submits that if the documents are allowed to be produced, the respondent- plaintiff would not be prejudiced as the said documents are referred CRP (I/O) 92/2017 Page 3 of 10 in the written statement filed by the petitioners. In support of his argument, the learned counsel for the petitioner places reliance on the case of K.K. Velusamy V. N. Palanisamy, reported in (2011) 11 SCC 275. Para 14 thereof, on which the learned counsel for the petitioners has relied on, is quoted below:-
"14. Neither the trial court nor the High court considered the question whether it was a fit case for exercise of discretion under section 151 or Order 18 Rule 17 of the Code. They have not considered whether the evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to a just and effective adjudication. Both the courts have mechanically dismissed the application only on the ground that the matter was already at the stage of final arguments and the application would have the effect of delaying the proceedings."
10) The learned Senior Counsel for the respondent, by referring to the order dated 09.08.2016 passed by the learned trial court, submits that on 09.08.2016, the learned counsel for the respondent- plaintiff had advanced their argument and after completion of the argument, the petitioners had filed petition No. 76/22. On all the grounds, now being urged by the petitioners before this Court, the learned trial court by exercising powers under section 151 of the Civil Procedure Code, had allowed the petitioners to adduce evidence on the next date fixed without fail and, as such, the learned trial court had already exercised power under section 151 to grant some more time till 17.09.2016 for evidence of the defendant's side, with a rider that the defendants shall file their evidence without fail. It is further submitted that despite the direction contained in the said order dated 09.08.2016, the petitioners- defendants filed yet another petition on 17.09.2016, praying for more time to file evidence on the ground that the certified copies required for adducing evidence are not yet received. However, the learned trial court showed leniency towards the petitioner and CRP (I/O) 92/2017 Page 4 of 10 although it was observed in the order that the petition does not deserve to be allowed, for ends of justice, one last opportunity was afforded to the petitioners to adduce evidence with the cost of Rs.500/- as condition precedent and also on condition that the petitioners- defendants shall adduce their evidence on 02.11.2016 without fail.
11) The learned Senior Counsel for the respondent, by referring to the petition No. 181/7 dated 02.11.2016, has submitted that there was no prayer to recall the previous orders dated 17.09.2016 passed by the learned trial court and, as such, there was no way for the learned court below to review its orders and call for production of the documents at such a belated stage. It is further submitted that despite rejection of the petition dated 02.11.2016, the petitioners did not make any effort to obtain certified copy of relevant document and did not present their evidence on the next date, but once again filed petition No. 114/21 dated 06.01.2017 under section 151 of the Civil Procedure Code with a prayer to call for three registered deeds now and allow the petitioners to adduce evidence. It is submitted that previously, the petitioners wanted two documents to be called for, which has now increased to three documents. The learned trial court, by order dated 07.01.2017 rejected the said petition and the suit was fixed for argument on 10.01.2017. But on 10.01.2017, the petitioners had filed yet another adjournment petition to defer argument on the ground that the documents for preparing for argument could not be procured. It is further submitted that even today, in course of argument, the petitioners could not make a statement whether the certified copy of relevant documents has been obtained or not and, as such, no ground is made out for interfering with the impugned order.
12) It is further submitted by the learned Senior Counsel for the respondent that in the petition No. 181/7 dated 02.11.2016 as well as in the present revision application, there is no statement that the document, sought to be called/ produced was covered by appropriate pleadings in the written CRP (I/O) 92/2017 Page 5 of 10 statement, because the court cannot look into any amount of evidence which is not backed by pleadings. It is also submitted that the two documents mentioned in the said petition No. 181/7 dated 02.11.2016 were dated 30.09.1985 and 10.10.1980, while the additional third document mentioned in petition No. 114/21 dated 06.01.2017 is dated 06.01.2017, but there is no explanation why the same could not be filed along with the written statement though the said documents were all pre-existing documents. Hence, this was a case of absence of due diligence on part of the petitioners during trial.
13) The learned Senior Counsel for the respondent has submitted that the power under Article 227 of the Constitution of India must be exercised with great caution and circumspection and only when the order passed by the court or tribunal under its jurisdiction has acted in violation of the well established principles of law, or if the order is vitiated by perversity or to otherwise keep the courts or tribunals within the bounds of law. It is submitted that the power ought not to be exercised in a routine manner as if it was hearing an appeal. It is submitted that on 09.08.2016, when the learned trial Court had allowed the petitioners to adduce evidence, they were aware of the requirement of proving documents, but the petitioners were not ready with their evidence and resultantly, the disposal of the suit has been delayed for 10 months now.
14) Having heard the arguments advanced by the learned Counsels for the parties, I have perused the materials available on record. There is no reference to any of the three documents sought to be called/ produced by the petitioners in the written statement filed on 08.09.2011. Similarly, there is no reference to any of the said three documents in the written statement filed on 29.05.2014 by the substituted defendants No. 1(a), 1(b) and 1(c), i.e. the petitioners. Therefore, prima facie, I find that the petitioners do not have any pleadings in respect of registered deed dated 17.10.1970, 10.10.1980 and 30.09.1985. It is a trite law that a Court cannot be permitted to look into any amount of evidence upon a plea which was never put in the pleadings. In this CRP (I/O) 92/2017 Page 6 of 10 connection, I find support from the case of Bachhaj Nahar Vs. Nilima Mandal & anr., reported in (2008) 17 SCC 491. This is the first ground on which I am disinclined to grant any relief to the petitioners.
15) It is observed that the petitioners had filed a petition before the learned Trial Court under the provisions of section 30 read with section 151 of the Civil Procedure Code. It is a trite law that the provisions of section 151 cannot be invoked when there exists appropriate provisions for the same in the Code and that it cannot be used to nullify any other provisions of law. In light of above, as the Civil Procedure Code puts a bar to introduction of any document in evidence without the leave of the Court under the provisions of sub-Rule (3) of Rule 14 of Order VII of the Code, I am constrained to hold that the express bar created thereunder cannot be overcome by invoking the inherent power of the Civil Court under section 151 of the Civil Procedure Code, which, if allowed, would nullify the provisions of sub-Rule (3) of Rule 14 of Order VII of the Code. In this I find support from the case of P.S. Kona Anal Vs. The State of Manipur & 4 others, reported in (1989) 2 GLR 142. I also find support from the case of Meera Chouhan V. Harsh Bishnoi, reported in (2007) 12 SCC 201, where the Hon'ble Apex Court has laid down that powers under section 151 of the Civil Procedure Code must be exercised only in exceptional circumstances for which the Code lays down no procedure. Therefore, in my opinion, notwithstanding the dismissal of the said petition, the application for introducing documents in the stage of documents could not have been entertained by applying inherent power of the Court under section 151 of the Code, for which exceptional circumstances must exist and successfully demonstrated before the learned Trial Court.
16) As the said petition filed before the learned Trial Court was also under section 30 of the Civil Procedure Code, it is deemed fit to examine the provisions of section 30 of the Code, which reads as follows:-
"30. P ow er to order discovery and the like.- Subject to such conditions and limitations as may be prescribed, the court may, at CRP (I/O) 92/2017 Page 7 of 10 any time, either of its own motion or on the application of any party,
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit."
17) The above quoted provisions show that power exercisable under section 30 of the Civil Procedure Code is made "subject to such conditions and limitations as may be prescribed". Moreover, sub-section (a) of section 30 of the Code appears to be relatable to the provisions of Order XIII of the Civil Procedure Code, which is for "Production, Impounding and Return of Documents". The provision of sub-section (b) of section 30 of the Code appears to be relatable to the provisions of Order XVI of the Code, which is for "Summoning and Attendance of Witnesses". The provision of section (c) of section 30 of the Code appears to be relatable to the provisions of Order Rule (1) of Order XIX of the Code. The petitioners' side has not been able to show that the Court has power to take recourse of the provisions of section 30 of the Code to overcome the requirement of leave of the Court to admit a document in evidence as prescribed in Sub-Rule (3) of Rule 14 of Order VII of the Civil Procedure Code. In the present case in hand, I find that as the suit was in the stage of evidence of the petitioners- defendants and, as such, the suit had crossed the stages when provision of section 30 of the Code was exercisable. Therefore, this is the second reason for not interfering with the orders impugned herein.
CRP (I/O) 92/2017 Page 8 of 1018) On re-visiting the said two petitions filed by the petitioners on 02.11.2016 (Annexure-VII), and 06.01.2017 (Annexure-IX), it is observed that does not contain any statement as to (i) when they applied for certified copies,
(ii) which were the documents in respect of which certified copies were applied. The provisions of section 85 of the Registration Act, 1908 provides that if any document other than will is lying unclaimed in any registration office for a period exceeding two years may be destroyed, therefore, it is prima facie not an acceptable argument that the original of the registered deeds pertaining to the year 1970, 1980 and 1985 would still be available in the Office of the Sub- Registrar, Sadar Joint, Silchar, Cachar, Assam. Hence, in view of the provisions of section 85 of the Registration Act, 1908, even if one waits for an eternity, there is dim chance of the original of the purported registered deeds ever reaching the court for the purpose of adducing evidence thereon. Thus, by accepting the plea of the petitioners, the suit instituted in the year 2011 shall never come to an end. Hence, this is the third reason for not granting any relief to the petitioner.
19) It is also seen that the by order dated 17.09.2016, the learned trial court had imposed a cost of Rs.500/- making such cost as a condition precedent. Therefore, such cost, in my view is an order within the meaning of section 35-B of the Civil Procedure Code. As per the language of Explanation to sub-section (1) of Section 35-B, payment of cost shall be a condition precedent to the further prosecution of the defence by such defendants as have been ordered by the court to pay such cost. The date of 02.11.2016, was the date fixed in the suit, subsequent to the date of 17.09.2016, when order was passed to pay cost as a condition precedent, but in the impugned order dated 02.11.2016, there is no mention that the said cost was paid by the petitioners. Thus, this is the fourth ground on which I find that the petitioners have foreclosed their right to further prosecute their defence.
CRP (I/O) 92/2017 Page 9 of 1020) On careful examination of the impugned order, I do not find any infirmity in the same. Rather, the learned court below has given due regard to the facts and circumstances under which the said learned court was inclined to reject the prayer for adjournment.
21) Moreover, in view of the foregoing discussions, I am of the considered view that there is no infirmity in the orders dated 02.11.2016 and 07.01.2017, passed by the learned Munsiff No.1, Cachar, Silchar in T.S. No. 61/2011. The said learned Court has not committed any jurisdictional error and, as such, no interference with the said order is warranted. Accordingly, the said order is upheld. Consequently, this application stands dismissed. The parties are left to bear their own cost.
22) The parties are directed to appear before the learned Court of Munsiff No.1, Cachar, Silchar on 03.07.2017 to seek further instructions from the said learned Court, without any further notice to appear before the said learned Court.
JUDGE Mks CRP (I/O) 92/2017 Page 10 of 10