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Hoti Lal and others v. Additional District Judge and others - WRIT - A No. 49544 of 2004 [2005] RD-AH 2827 (14 September 2005)


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                                                                                                   Court No.38

Civil Misc. Writ Petition No.   49544 of 2004

Hoti Lal & others       versus          Addl. District Judge & others

Hon'ble Vineet Saran, J

The short question to be determined by this Court in this writ petition is as to whether the trial court as well as revisional court were justified in rejecting the application of the petitioners for taking certain additional documents on record after 18 years of the filing of the written statement and framing of issues; and after the evidence of the plaintiff had already been closed.

The brief facts are that the Respondent no.3 Smt. Kesar Sharma, who is the owner of the property in dispute, filed suit no. 202 of 1983 against one Jagan Lal (who was the tenant of the property in question) for arrears of rent and eviction from the property in question. The said Jagan Lal contested the suit and filed his written statement on 21.5.1985. The issues had already been framed for the determination of the court. During the pendency of the case, in August 1985, said Jagan Lal expired and the names of the petitioners were substituted in his place. The evidence of the plaintiff-respondent no.3 was closed by the trial court on 2.7.2003. On the next date, which was 31.7.2003, the defendant-petitioners filed an application, purported to be under section 151 C.P.C., praying for accepting certain additional documents in evidence. The said application of the petitioners has been rejected by a detailed order dated 31.7.2003 passed by the trial court. The petitioners preferred a revision against the said order, which has also been dismissed by the Additional District Judge, Khurja, Bulandshahr on 13.10.2004. Aggrieved by the said orders, the petitioners have filed this writ petition.

I have heard Sri V.K.Birla, learned counsel for the petitioners as well as Sri Vinod Sinha, learned counsel for the contesting respondent no.3 and have perused the record. Counter and rejoinder affidavits have already been exchanged and with consent of the learned counsel for the parties, this writ petition is being disposed of at the admission stage itself.

The submission of Sri Birla is three-fold, namely, (1) the scheme of the Code of Civil Procedure is in favour of taking additional evidence at any stage of the proceedings; (2) the object of section 151 of the Code of Civil Procedure  is to secure the ends of justice; and (3) all documents sought to be placed on record by the application dated 31.7.2003 were public documents which did not need to be proved. It has thus been urged that for such reasons, it was in the interest of justice that the application should have been allowed and the documents accepted on record.

Sri Vinod Sinha, learned counsel for the contesting respondent no.3 (plaintiff) has, however, submitted that the application had been filed by the petitioners at a very late stage i.e. after 20 years of filing of the suit; 18 years after the filing of the written statement by the petitioners and the framing of the issues by the court; and even after the closure of the evidence of the plaintiff-respondent no.3, and the purpose of the defendant is only to delay the decision in the suit. It was urged that if the said application is allowed, the same would cause grave hardship to the plaintiff-respondent no.3. It has also been submitted that no good cause for allowing the application of the petitioners for taking additional documents on record had been shown in the application, or the affidavit filed in support thereof, and thus the trial court  was fully justified in rejecting the said application.

Having heard learned counsel for the parties and considering the facts and circumstances of this case, I do not find any illegality in the orders passed by the trial court or the revisional court. A bare reading of the application of the defendant-petitioners, as well as the affidavit filed in support thereof, would make it clear that no cause, whatsoever, has been shown for filing the documents at such a late stage. It has merely been stated that some papers were not available at the stage of the framing of issues and thus the same were being filed. All but one of the nine documents sought to be filed, are  of a period prior to the filing of the suit. The only explanation given by the petitioners during the course of arguments, although not on record, is that the case was earlier being contested by Sri Jagan Lal and it was only now that the petitioners found these documents and hence the same were being filed at this stage. Even such explanation does not appear to be reasonable or justified as the case was being initially contested by Sri Jagan Lal who had filed the written statement and also the documents earlier in the year 1985. The issues were also framed during his life time. If he was in possession of such documents, he ought to have filed the same at the relevant time. As such, the vague reasons given by the petitioners in the application and also the one given at the time of hearing, are both not justified and thus not acceptable.

No doubt the unamended Code of Civil Procedure, as prior to 1.7.2002, gave discretion to the trial court under Order XIII Rule 2 to receive the documents at any subsequent stage of the proceedings, but only on a good cause being shown to the satisfaction of the court for non production of the same earlier.  However, after the amendments which have been brought out in the Code of Civil Procedure by Act No. 46 of 1999 with effect from 1.7.2002, no such discretion is also now left with the court as the provision contained in Rule 2 of Order 13 C.P.C. prior to the amendment is no longer there.

The contention of the petitioners that the scheme of the Code of Civil Procedure is to allow taking of additional evidence at any stage of the proceedings (even at appellate stage under Order 41 Rule 27 C.P.C.) does not have much force specially after the amendment in the Code of Civil Procedure with effect from 1.7.2002. It is true that the cause of justice should not suffer and it should be the endeavour of every court of law to ensure that complete justice is imparted to the parties, but in doing so, the court has to take into account that securing justice for one should not amount to injustice to the other party.

The application dated 31.7.2003 had been filed by the petitioners under section 151 C.P.C. and not Order 13 C.P.C. The contention of the petitioners thus is that under section 151 C.P.C. the court can always invoke its inherent powers for meeting the ends of justice in a particular case. In the facts and circumstances of this case, in my view, the application of the petitioners for giving additional documents as evidence, has rightly been rejected even if tested in terms of the provisions of section 151 C.P.C. The petitioners cannot be put in a better position than what they would have been under the unamended Code of Civil Procedure. Even Order 13 Rule 2 C.P.C. provided that the documents/evidence can be taken on record at a subsequent stage only for some good cause which may be shown by the party filing such document and the trial court was obliged to record the reasons for accepting such evidence. As has already been observed above, in the present case, no cause whatsoever had been shown for filing the documents at the subsequent stage. If, by an application under section 151 C.P.C., a party is to be permitted to file additional evidence at any stage of the proceedings without showing any good or sufficient cause for not having done so earlier, then the entire purpose of Order XIII C.P.C. would stand frustrated. The Court cannot be allowed to invoke its inherent powers, only meant for exceptional cases to secure the ends of justice, specially when there is no good or sufficient cause shown. The decision of the Privy Council in the case of  Kumar Gopika Raman Roy v. Atal Singh A.I.R.1929 PC 99 would not apply to the facts of the present case as here the documents, sought to be filed, are after a reasonably long delay, without any good cause.

Even if the documents are public documents, they cannot be filed as of right, at any stage of the proceedings. In the present case, besides the fact that issues had been framed and the written statement filed, both 18 years prior to the filing of such application, the evidence of the plaintiff-respondent no.3 had also been closed and as such, even if it is presumed that the documents sought to be filed are all public documents, there is no good ground for accepting the same at such late stage. It would also be wrong to say that no prejudice would be caused to the plaintiff if such application is allowed.

A case, based on similar facts came up before the Apex Court (Madan Lal v. Shyam Lal 2003 All.C.J. 818) where the application was filed under Order 13 Rule 2 C.P.C. for filing of copy of the Award passed by the Land Acquisition Officer regarding acquisition of the land in dispute, as well as the electricity bills and the copy of the registered sale deed. The trial court rejected the application on the ground that the plaintiff had closed his evidence and the defendant had not made out a good cause for late production of such documents. The revision filed before the Rajasthan High Court was also rejected on the ground that no good cause was shown for non production of such documents at the relevant time. The Apex Court held that even though there may be no doubt regarding the genuineness of such documents sought to be filed by the defendant, the question would still remain that the documents were not produced at the relevant time before settlement of the issues.  The Supreme Court further observed that "The cause shown by the appellant was not considered to be a "good cause" as provided under Order 13 Rule 2 C.P.C. It is true that power under Order 13 Rule 2 CPC could be exercised liberally and that "good cause" requires lesser degree of proof than that of "sufficient cause" (Re: Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993). May be that order is erroneous, however, it cannot be said that such order passed by the trial Court could be interfered with under Section 115 C.P.C. It cannot be said that the trial court has acted with material irregularity in exercise of its jurisdiction in rejecting the applications filed by the appellant and that the order, if allowed, would occasion a failure of justice. The words "material irregularity in exercise of jurisdiction" do not cover either errors of fact or law (Re: Keshardeo Chamria v. Radha Kissen Chamria, AIR 1953 SC 23: 1953 SCR 136). It is open to the appellant to raise this contention at the appellate stage, if decree is passed against him."

Accordingly, what is to be tested in the present case is as to whether on the material available before the trial court, the order passed rejecting the application of the petitioners was justified or not. In the absence of there being any reasonable cause for not having filed the said documents at the appropriate stage of the proceeding and also without mentioning how the petitioners would suffer or any injustice would be caused to them if the documents were not taken on record, the order of the trial court need not be interfered with. The revisional court was obliged to only consider whether the said order of the trial court could be interfered with under section 115 C.P.C. In the facts of this case, there being no material irregularity in the exercise of its jurisdiction by the trial court while rejecting the application of the petitioners, the order passed by the revisional court is perfectly justified in law.

Accordingly, for the foregoing reasons, I do not find any cogent reason for interference with the orders impugned in this writ petition. This writ petition lacks merit and is thus dismissed. No order as to cost.

Dt/- 14.9.2005



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