M/S. Ramjilal Tarachand vs Shri Naresh Subba And Ors on 30 November, 2019

[Cites 5, Cited by 1]

Sikkim High Court

M/S. Ramjilal Tarachand vs Shri Naresh Subba And Ors on 30 November, 2019

1. This common judgment is passed in Writ Petition (C) No.04 of 2019, Writ Petition (C) No. 05 of 2019 and Writ Petition (C) No. 06 of 2019 assailing impugned orders dated 20.03.2019 in three Eviction Suits No. 08 of 2015, 09 of 2015 and 10 of 2015 (collectively referred to as 'the suits') pending adjudication before the learned District Judge. The suits have been filed by the respondent nos.1 and 2 against the 4 W.P. (C) No. 04 of 2019 with W.P. (C) No. 05 of 2019 with W.P. (C) No. 06 of 2019 petitioners for their eviction. The respondent no.3 was substituted for the original defendant no.2 after his death. It is the case of the respondent nos. 1 and 2 that they have purchased the suit properties from the original defendant no.2 who was the owner. They assert that the original defendant no.2 had built the structures on the land which was leased by the then Government to his father-late Martam Topden and the petitioners have been tenants in the suit properties.

2. Paragraph 5 of the plaints is identical. It is central to the issue raised by the petitioners and therefore, is extracted herein below:

"5. That vide a letter dated 09.07.1971, Late Martam Topden, the original permanent lessee had applied to the lessor/the Bazar Department for transfer of rights & ownership of various premises owned by him in the name of his sons including defendant No.2 which was allowed vide Bazar Department letter no. 1302/B dated 05.10.1971 duly recording, interalia, that schedule A property mentioned at Serial No.1 had been recorded in the name of Shri Karma Tenzing Topden, the Defendant No.2. A copy of the letter dated 05.10.1971 issued by the Executive Officer, Bazar Department and original letter dated 06.10.1971 marked to the defendant No.2's brother are filed and marked Annexure-P1 (collectively)."

3. The petitioners have filed their written statements in the suits. Paragraphs 14 of the written statements which are also identical is reproduced below:

" That the father of the Defendant No.2 Late Martam Topden constructed a three storied wooden house sometimes in early 1930 on a plot of land gifted to him by the then Maharaja of 5 W.P. (C) No. 04 of 2019 with W.P. (C) No. 05 of 2019 with W.P. (C) No. 06 of 2019 Sikkim. The words which fell from the mouth of the then Maharaja of Sikkim who was the sovereign ruler became law during those days and the gifting of the said land measuring 64' x 34' situated at Old Market (as it was called those days) became absolute and the late Martam Topden became the absolute owner of the said plot of land."

4. In the written statements the petitioners have averred that immediately after late Martam Topden finished constructing the three storied wooden structure, various portions of it were rented out to the father of the petitioner in W.P. (C) No. 04 of 2019, the petitioner in W.P. (C) No.05 of 2019 and to Ramjilal Kashiram which was later on changed to Ramjilal Tarachand in W.P. (C) No. 06 of 2019 on monthly rentals. The petitioners have however, contested the respondent nos. 1 and 2's claims that they had purchased the suit properties.

5. The reply to paragraph 5 of the plaints in the written statements is the following:

"That with reference to the statement and claims made by the Plaintiffs at paragraph 4 of the plaint is concerned, the same are denied as false and the Plaintiffs are put to strict to thereof. The Plaintiffs have time and again referred to late Martam Topden as "permanent lessee" without any lease deed having been annexed in the plaint which proves the falsity of their claim that late Martam Topden was the lessee of Bazar Department. It is denied that Martam Topden was a permanent lessee in respect of the plot of land measuring 64' x 34' gifted to him by the Maharaja of Sikkim on which he had built three storied wooden house measuring 64' x 34' situated at Old Bazar, Gangtok. The purported letter of Bazar Department, Govt. of Sikkim bearing No.1302/B dated 05/10/1971 6 W.P. (C) No. 04 of 2019 with W.P. (C) No. 05 of 2019 with W.P. (C) No. 06 of 2019 merely shows that the Bazar Department had recorded in the concerning register the properties distributed and transferred by Martam Topden as its owner in favour of the Defendant No.2 and not as its lessee. Thus, recording in the concerned register of the Bazar Department was that of the transfer of ownership of the concerned property in favour of the Defendant No.2 and not the transfer of any lease."

6. Applications under Order XI Rule 14 CPC (for short 'the application') were filed by the petitioners on 07.03.2019 in the suits. The applications were signed by the learned Counsel on behalf of the petitioners. It was not supported by any affidavit. The applications prayed for a direction to respondent no.3 and Siddharth Rasaily (D.W.5) to produce the originals of the two letters.

7. Written objections to the applications were filed by the respondent nos.1 and 2 on 16.03.2019. The written objections were verified by respondent no.1 and it was supported by his affidavits. It was submitted that the petitioners had never raised any doubt about the two letters and was doing so after a lapse of four years. Objection to the form of the applications, both in fact and in law, was also taken. It was contended that the applications were not maintainable and was made only to delay the suits. Various contentions on the merits of the two letters were also made.

8. Respondent no.3 also filed his written objections to the applications on 16.03.2019. It was filed through his power of 7 W.P. (C) No. 04 of 2019 with W.P. (C) No. 05 of 2019 with W.P. (C) No. 06 of 2019 attorney supported by his affidavit. The respondent no.3 stated that he did not live with his father; he did not personally deal with the matter then and hence was not aware of the location of the two letters.

9. The learned District Judge rejected the applications by the impugned orders dated 20.03.2019. The learned District Judge held that the petitioners could not challenge the title of the original defendant no.2 or the ownership of his father. It was held that the lease deed document was found to be duly registered and it bears more evidentiary value. The learned District Judge held that Siddharth Rasaily was only a witness and not a party to the suit and as such he could not be ordered to produce the documents under Order XI Rule 14 CPC. The learned District Judge held that the two letters were not relevant for the adjudication of the suits.

10. The petitions seek to invoke the jurisdiction under Article 227 of the Constitution of India to assail impugned orders dated 20.03.2019.

11. Heard Mr. Sudesh Joshi, learned Counsel for the petitioners, Mr. A. Moulik, learned Senior Counsel for the respondent nos. 1 and 2 and Ms. Kunzang Choden Lepcha, learned Counsel for respondent no.3.

12. Mr. Sudesh Joshi submitted that the records reveal that the power of attorney holder of respondent no.3 had deposed 8 W.P. (C) No. 04 of 2019 with W.P. (C) No. 05 of 2019 with W.P. (C) No. 06 of 2019 that the respondent no.3 was in possession of the originals of the two letters and was fully aware about the filing of the applications by the petitioners on 07.03.2019 when he was cross-examined on 12.03.2019. Mr. Sudesh Joshi contends that the suits are collusive between the respondent nos.1, 2 and 3 to evict the petitioners. The petitioners contend that they had objected to the acceptance of the two letters when they were marked Exhbit-P1 and P2. They further contend that respondent nos.1 and 2 laid no foundation as required under the law for exhibiting certified copies of the two letters. Mr. Sudesh Joshi relied upon a Delhi High Court judgment in re:

Meera Devi & Ors. v. Jitender & Ors.1 which emphasizes on the duty of the Courts to ascertain the truth.

13. The respondent nos. 1 and 2 contested the writ petitions by filing counter-affidavits. It is their case that the applications were devised to delay the proceedings; the writ petitions are not maintainable; since the petitioners admit that they are tenants of the original defendant no.2 they could not dispute his title which originated either through the two letters or otherwise; the provision cannot be applied to direct Siddharth Rasaily who was a witness and not a party to the suit; as the original documents are not found and the fact had been notified to the learned District Judge, no direction could be 1 MANU/DE/1900/2016 9 W.P. (C) No. 04 of 2019 with W.P. (C) No. 05 of 2019 with W.P. (C) No. 06 of 2019 passed for their production and no ground is made out to invoke the provision.

14. In re: Estralla Rubber v. Dass Estate (P) Ltd.,2 the Supreme Court examined the scope of Article 227 of the Constitution of India and held:

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

15. In re: Basanagouda v. Dr. S. B. Amarkhed & Ors.3 the Supreme Court while examining the provisions of Order XI Rule 14 CPC held that:

2( 2001) 8 SCC 97 10 W.P. (C) No. 04 of 2019 with W.P. (C) No. 05 of 2019 with W.P. (C) No. 06 of 2019 "7. The Court, therefore, is clearly empowered and it shall be lawful for it to order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the court shall think right that the production of the documents are necessary to decide the matter in question. The court also has been given power to deal with the documents when produced in such manner as shall appear just. Therefore, the power to order production of documents is coupled with discretion to examine the expediency, justness and the relevancy of the documents to the matter in question. These are relevant consideration which the court shall have to advert to and weigh before deciding to summoning the documents in possession of the party to the election petition........"

16. The suits have been filed by respondent nos. 1 and 2 as a purchaser/lessee in the suits properties from the original defendant no.2 who as per the petitioners was the original owner. Whether respondent nos. 1 and 2 are in fact the purchaser/lessee of the suit properties and therefore had a right to evict the petitioners would be ultimately decided in the suits. The two letters are documents relied upon by the respondent nos. 1 and 2 in the plaints and they have been produced. The effect of the two letters would be decided by the learned District Judge. The failure of the respondent nos.1 and 2 to produce the primary evidence and exhibiting secondary evidence without laying the foundation for it, as alleged, would have its own consequences. It is seen that the 3 (1992) 2 SCC 612 11 W.P. (C) No. 04 of 2019 with W.P. (C) No. 05 of 2019 with W.P. (C) No. 06 of 2019 witnesses of the respondent nos. 1 and 2 have been extensively cross-examined on this aspect by the petitioners.

17. The Court must be certain about the possession or power of the documents with the party against whom the order is sought before exercising the power under Order XI Rule 14 CPC. When the Court is not clear about the factum no order under the said provision can be passed. Both the letters appear to be addressed to late Martam Topden written in the year 1971. The power of attorney for respondent no.3 who substituted the original defendant no.2 had on 12.03.2019 admitted during his cross-examination that the originals are in the possession of defendant no.2, Kunzang Namgyal Topden and Karma Sonam Topden. Subsequently, however, in the written objections to the applications filed by the respondent no.3 dated 16.03.2016 the same power of attorney holder stated on affidavit that the respondent no.3 did not live with his father; he did not personally deal with the matter and hence was not aware of the location of the two letters.

18. The learned Counsel for the parties submit, and it is also found, that the observation of the learned District Judge in the impugned orders dated 20.03.2019 that "it is also seen that the witness who has certified the copy of the said document have already cross-examined extensively by the Ld. Counsel of the petitioner/defendant no.1." is incorrect. However, the records 12 W.P. (C) No. 04 of 2019 with W.P. (C) No. 05 of 2019 with W.P. (C) No. 06 of 2019 reveal that Siddharth Rasaily has been cross-examined thereafter on 01.04.2019.

19. The applications filed by the petitioners does not reflect any reason whatsoever for which they seek a direction upon the respondent no. 3 as well as Siddharth Rasaily to produce the originals of the said documents. The applications only state that the respondent no.1 and 2 have not filed the originals but certified copies; the respondent no.3 has not produced it either; as the two letters are purportedly addressed to the grandfather of respondent no.3, he must be ordered to produce the originals and as Siddharth Rasaily had certified the copies of the two letters he must also be asked to produce the originals. The petitioners have not pleaded the expediency, justness and relevancy of the original documents to the matters in issue in the suits. The applications in the circumstances were rightly rejected by the learned District Judge. The rejection of the applications by the impugned orders dated 20.03.2019 does not reflect any serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if this Court does not interfere, a grave injustice would remain uncorrected. It cannot be held that the finding is so perverse, that no reasonable person can possibly come to such a conclusion. This Court is of the view that the prayers as prayed for by the petitioners are 13 W.P. (C) No. 04 of 2019 with W.P. (C) No. 05 of 2019 with W.P. (C) No. 06 of 2019 not within the scope and ambit of exercise of power and jurisdiction under Article 227 of the Constitution of India.

20. Consequently, the petitions are dismissed. No orders as to cost. The interim orders dated 20.08.2019 passed by this Court in I.A. No. 01 of 2019 stands vacated. The learned District Judge may proceed with the hearing of the suits.

( Bhaskar Raj Pradhan ) Judge 30.11.2019 Approved for reporting: yes.

Internet: yes.

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