Sanjay S/O Shrikishanji Somani ... vs Vishnupant S/O Shankarrao ...
2007 Latest Caselaw 709 Bom

ORDER

S.B. Deshmukh, J.

1. This petition challenges the order passed by the learned Principal District Judge, Parbhani below Exhibit-1, Exhibit-4 and Exhibit-44 in Misc. Civil Appeal No. 39 of 2006.

2. A question, to be decided in this writ petition, is the power and jurisdiction of learned Principal District Judge, while considering Miscellaneous Civil Appeal under Order XLIII, Rule 1(r) of the Code of 1908.

3. The Petitioners are plaintiffs and the respondent is defendant in Special Civil Suit No. 23 of 2005. Parties hereinafter are referred to their status as plaintiffs and defendant in Special Civil Suit No. 23 of 2005. The plaintiffs seek specific performance of contract, decree of mandatory injunction and perpetual injunction. The subject-matter of the suit is agricultural land bearing Gat No. 109, admeasuring 3 Hectares 45 Ares, situated at village Sailu, district Parbhani. It is pleaded by the plaintiffs that they are in actual and physical possession of the suit property since 11th April, 1996 pursuant to the contract of sale dated 11th April, 1996 and by way of part performance. Plaintiffs had filed an application below Exhibit-5 seeking temporary injunction restraining the defendant, his agent, servant or anybody claiming on his behalf, from obstruction or interfering in actual physical possession of the plaintiffs, in relation to suit property. This application Exhibit-5 seems to have been filed on 29th June, 2005. The trial Court, after hearing the parties, rejected the application Exhibit-5 by order passed on 29th July, 2006. This order, below Exhibit-5, rejecting the prayer for temporary injunction, in Special Civil Suit No. 23 of 2005, is challenged by the plaintiffs, by filing Misc. Civil Appeal No. 39 of 2006 in the Court of learned District Judge at Parbhani. The defendant entered appearance in the said miscellaneous appeal. Learned Principal District Judge, Parbhani, during the pendency of Misc. Civil Appeal No. 39 of 2006, passed an order below Exhibit-1 on 16th March, 2007, calling the record and proceeding from the lower Court for impounding of the document in question i.e. the contract of sale (Isar Pawati) dated 11th April, 1996. The learned District Judge, thereafter, after hearing the parties, passed an order below Exhibit-1 on 20th March, 2007 holding that the plaintiffs' claim for perpetual injunction is based on contract of sale (Isar Pawati) and, therefore, the said document needs to be impounded. Unless deficit stamp duty and penalty is paid, learned Judge postponed delivery of judgment since arguments were already heard. The learned District Judge, Parbhani, on the same date i.e. 20th March, 2007, also passed an order impounding the document and directing the plaintiffs to deposit stamp duty of Rs. 7,190/-, penalty amount of Rs. 14,380/-, totalling to amount of Rs. 21,570/-. These three orders, passed by the learned Principal District Judge, Parbhani are subject-matter of the present writ petition.

4. Mr. R. F. Totala, learned Counsel for the Petitioner submitted that the orders impugned in this writ petition are per-se illegal. None appeared on behalf of the respondent/defendant, despite service.

5. Special Civil Suit No. 23 of 2005 is filed by the plaintiff on 29th June, 2005. ft is not in dispute that the suit has been followed by an application for temporary injunction below Exhibit-5 which came to be rejected and the said order is carried in Misc. Civil Appeal under Order 43 of the Code of Civil Procedure before the learned Principal District Judge, Parbhani. The expression "plaint" is not defined under the provisions of Code of Civil Procedure. However, Order VII of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code of 1908) refers to particulars to be contained in plaint. Order 7, Rule 9 of the Code of 1908 refers to the procedure on admitting the plaint. Production of documents on which plaintiff sues or relies, has been provided under Order VII, Rule 14 of the Code of 1908. It lays down that where plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. If such document is not in possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. If the document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on behalf of the plaintiff, at the hearing of the suit, is contemplated under Sub-rule (3) of Rule 14 of Order VII of the Code of 1908. Thus, a bare look to Order 7 of the Code of 1908 shows the scheme of production of documents which are in possession and power of the plaintiff and a statement to that effect in relation to documents, which are in possession and power of some other party, at the time of filing of the suit/plaint itself.

6. Discovery and inspection of documents is enlisted under Order XI of the Code of 1908. Apart from interrogatory, Order XI refers to the production of documents and more specifically under Rule 14 thereof. Power is vested with the Court, at any time, during the pendency of any suit, to order production of any part thereto, upon oath of such of the document in his possession or power related to any matter in question in such suit as the Court shall think right and the Court may deal with such documents when produced in such manner as such appear just. Notice to produce document referred to in its pleading or affidavits is contemplated under Rule 16 of Order XI of the Code of 1908. Consequences of non-compliance with the order for discovery or inspection of documents are enumerated under Rule 21 of Order XI of the Code of 1908.

7. After reference of documents under Orders VII and XI, Order XII of the Code of Civil Procedure refers the admission of documents. Such admission is in relation to admitting the contents of the document produced by the party. Rule 2 of Order XII provides that either party may call upon the other party to admit, within seven days from the date of service of the notice, any document, saving all just exceptions and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs. Sub-rule (2A) of Order XII has embodied a deeming provision. Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability.

8. Production, impounding and return of documents is considered under Order XIII of the Code of Civil Procedure. Issue raised in this petition, relates to entire scheme of the Code of Civil Procedure, which has been referred to since Order VII of the Code of Civil Procedure. Original documents to be produced at or before the settlement of issues, is a mandate of Sub-rule (1) of Order XIII of the Code of Civil Procedure. Sub-rule (2) obligates the Court to receive the documents so produced. It is this stage, of admitting the documents in evidence by the Court. Sub-rule (3) of Order XIII provides that Sub-rule (1) of the said Order shall not apply to the documents received for producing at the time of cross-examination of the witness of the other party or the documents handed over to witness merely to refresh his memory while evidence of the witness is being recorded. Power to reject the documents, which are irrelevant, or inadmissible in evidence is vested with the Court under Rule 3 of Order XIII. Such power is vested with the Court, at any stage of the suit. The Court, however, is put under obligation for recording the grounds of such rejection. Under Rule 4 of Order XIII, it is incumbent upon the Court to make an endorsement on every document which has been admitted in evidence in the suit. Such endorsement is in relation to number and title of the suit, name of the person producing the document, the date on which it was produced in the evidence and the statement of its having been so admitted in evidence. Such endorsement also needs to be signed or initialled by the learned Judge dealing with the suit. Under Sub-rule (7) of Order XIII it is provided that every document, which has been admitted in evidence, or a copy thereof, where a copy has been substituted for the original, under Rule 5, shall form part of the suit. Rule 8 of Order XIII refers to order by the Court for impounding any document. It is provided that the Court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the Court, for such period and subject to such conditions as the Court thinks fit. Rule 8 of Order 13 starts with the non-obstante clause in relation to Rule No. 5 or Rule 7 or Rule 17 of Order VII. Thus, power to impound the document and impounding of such document is provided under Order 13, Rule 8 of the Code of Civil Procedure.

9. After production impounding and return of documents, Order XIV refers to settlement of issues and determination of the suit on issues of law or on issues agreed upon. Disposal of the suit, at the first hearing, is provided under Order XV of the Code of 1908. Summoning and attendance of witnesses for leading evidence or producing documents is enumerated under Order XVI of the Code of 1908. Leading of evidence, by way of affidavit, is contemplated under Order XVIII of the Code of 1908.

10. Issue of temporary injunction is governed by Order XXXIX, Rules 1 and 2 of the Code of 1908. Procedure, in relation to hearing of the applications Exhibit-5 i.e. for temporary injunction, is thus governed under Order XXXIX, Rules 1 and 2 of the Code of 1908. Hearing of the suit, as referred in foregoing paragraphs, is altogether different matter for the Court. Order 39 reads, thus:

Order XXXIX

TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS:

1. Cases in which temporary injunction may be granted. - Where in any suit it is proved by affidavit or otherwise -

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,

the Court may by order/grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders. 2. Injunction to restrain repetition or continuance of breach. - (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise as the Court thinks fit.

11. Rule 1 opens with wording "where in any suit it is proved by affidavit or otherwise....", Court may grant or refuse temporary injunction in favour of the plaintiff. The scope of consideration of prayer clause for injunction is, therefore, being governed by proof of facts by affidavit or otherwise. It is not obligatory on the part of the party, at this stage, to prove the documents in accordance with rules of Indian Evidence Act. The party to the suit may file various documents, for the consideration of prayer of temporary injunction under Order XXXIX, Rules 1 and 2 of the Code of 1908. The Court, at the first instance, is required to consider such prayer in view of the provision laid down under Order XXXIX, Rules 1 and 2 of the Code of 1908. If fact alleged by the plaintiff is supported by an affidavit or otherwise, meaning thereby some documents, Court has to record a prima facie opinion in respect of the existence of prima facie case, balance of convenience and irreparable loss to the party concerned. It is not the stage at which Court can exercise power of impounding the document. Apart from Order XXXIX, Rules 1 and 2 of the Code of 1908, a look to provision under Section 34 of the Bombay Stamp Act would show that instrument not duly stamped are inadmissible in evidence. Instruments/documents are to be admitted in evidence, at the time of hearing of the suit, as noted in the foregoing paragraphs. Section 34 of the Bombay Stamps Act obligates the Court that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having bye law or consent of parties authority to receive evidence. Thus, prohibition put by Section 34 of the Bombay Stamp Act is in relation to receiving any document or admitting any document in evidence. This stage has to be in relation to the hearing of the suit itself and not an application for temporary injunction. Section 35 of the Bombay Stamps Act is in relation to admission of the instrument, except as provided in Section 58, be called in question at any stage. Section 35 thus reads:

35. Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.

Bare reading of Section 35 makes it clear that it becomes applicable only after an instrument is admitted in evidence. The stage of consideration of the application for temporary injunction has to be considered distinctly to that of stage of hearing/recording of the evidence in the suit itself.

12. In the case on hand, learned Principal District Judge, Parbhani has passed these three orders undisputedly when Misc. Civil Appeal, under Order XLIII, Rule 1(r) was pending. Power of revision, vested in the Court, are provided under Section 58 of the Bombay Stamps Act. Section 58 provides that when the trial Court "makes any order admitting any instrument in evidence as duly stamped or not requiring a stamp or upon payment of duty and penalty, the Appellate Court, on its own motion or on the application of the Collector, shall take such order into consideration. The Appellate Court can take cognizance of the admission of a document whether duly or not duly stamped on its own motion or on the application of the Collector at any time during the pendency of trial of the suit or afterwards. In my view, however, such exercise cannot be undertaken by the Appeal Court during the pendency of the Misc. Civil Appeal and more specifically in the absence of application by the Collector.

13. The Principal District Judge, Parbhani instead of deciding the Misc. Civil Appeal within the parameters of Order XXXIX, Rules 1 and 2, misdirected itself and passed these three orders calling for the record and proceeding, looking to the document in question and directing impounding thereof. Such exercise was, in fact, not warranted at this stage, by the learned Principal District Judge, Parbhani. The exercise of the power by the learned District Judge, at this stage, is, in fact, without jurisdiction. The order passed by the learned Principal District Judge, therefore, suffers from lack of jurisdiction and is per-se illegal. The learned District Judge has nowhere referred the scheme of Civil Procedure Code in relation to impounding of the document and stage of the suit. It appears that the matter is heard by the learned District Judge, however, judgment is deferred. All these three orders, passed by the learned District Judge being perverse, needs to be quashed and set aside with direction that he shall deliver the judgment in relation to Misc. Civil Appeal within a specified period. Advocate for the Petitioner submits that the matter was heard about five months back and, if necessary, the learned Principal District Judge, Parbhani may hear the parties, before deciding the Misc. Civil Appeal.

14. In the result, petition is allowed. Judgment and order passed by the learned Principal District Judge, Parbhani below Exhibit-1, dated 16th March, 2007, below Exhibit-1 dated 20th March, 2004, below Exhibit-44 dated 20th March, 2007 and below Exhibit-4 dated 20th March, 2004 are quashed and set aside. Learned Principal District Judge, Parbhani, if necessary, hear the parties and deliver judgment in Misc. Civil Appeal No. 39 of 2006 within a period of four weeks from the receipt of writ from this Court. Petitioners to take Hamdast.