The single-judge bench of the Jharkhand High Court held that the relevancy of the document is to be decided first before marking the same as an exhibit. Moreover, if the secondary evidence is led, it must be explained prior to its marking exhibit as evidence, giving an opportunity to the concerned party to rebut the same.
Brief facts
The factual matrix of the case is that the eviction suit was instituted by one Hira Lal Vishwakarma in which it was alleged that the suit property was let out by the vendor of the plaintiff in favor of the defendant / present petitioner on a month-to-month tenancy that was brought to the notice of plaintiff subsequent to the purchase. Therefore, he requested to pay Rs. 1,000/- monthly rent from the defendant which he promised to pay but he used to avoid on one pretext and another to pay the rent. Thereafter, the plaintiff requested the defendant to vacate the property.
However, the threat was extended by the defendant of dire consequences. Furthermore, the application was filed by the present Petitioner that due to sheer mistake, documents of the defendants were not marked/exhibited, so prayer was made to recall DW 14. The present writ petition is filed in order to challenge the order passed by the learned Additional Munsif-XIII, Ranchi in which the application of the petitioner/defendant for bringing on record some additional documentary evidence and to recall the D.W.-14, the defendant himself for further examination with a view to prove the aforesaid documents and has been partly rejected.
Contentions of the Petitioner
The Petitioner submitted that the documents sought to be produced were not in possession of the Petitioner and the said documents are important to prove the stand of the defendant in eviction suit. It was furthermore submitted that a mere delay that occurs for reasons without the parties' control cannot be used as a weapon to weaken the defense and impede the advancement of justice. In addition to partially rejecting the petitioner/defendant's application and requiring the payment of Rs. 1,000 as a cost, the learned trial court permanently ended the petitioner's access to justice.
Contentions of the Respondent
The Respondent submitted that the Petitioner is in the habit of filing frivolous applications and taking adjournments on frivolous grounds due to which the instant suit has been pending for more than 12 years. It was furthermore submitted that the documents sought for proving in this case are also not relevant and beyond the subject matter of the present eviction proceeding.
Observations of the court
The Hon’ble court observed that prior to marking the document as an exhibit, its relevancy must be determined. Furthermore, in the event that secondary evidence is presented, it must be clarified before being marked as evidence, allowing the relevant party to challenge it.
It was furthermore observed that considering the present case, general directions to consider all these contested issues at the time of hearing argument cannot be passed until the defendant is given the opportunity to lead evidence that entitles him to lead secondary evidence of a document or to produce the original for consideration by the Court while providing a reasonable opportunity for the opposing party to rebut it. Because of the concept of ex debito justitiae, the court is obligated to take secondary evidence or to produce the original document itself if the party requesting additional evidence does so with a proper and fair explanation during the hearing.
It was noted that the trial court must have taken into consideration provisions of Order XVIII Rule 17 C.P.C. while dealing with the application.
Based on these considerations, the court was of the opinion that the prayer for recall of a witness can’t be declined.
The decision of the court
With the above direction, the court allowed the writ petition.
Case Title: Rabindra Nath Prasad @ Rabindra Prasad Vs Hira Lal Vishwakarma
Coram: Hon’ble Mr. Justice Pradeep Kumar Srivastava
Case No.: W.P. (C) No. 3471 of 2017
Advocate for the Petitioner: Mr. Shresth Gautam, Advocate Mr. Manoj Kumar Ram, Advocate.
Advocate for the Respondent: Mr. Avishek Prasad, Advocate.
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