Promila And Ors. vs Hazi Gulam Rasool
2012 Latest Caselaw 5854 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+                   C. M. (M) No 993/2011

                                         Date of Decision: 28.09.2012

PROMILA AND ORS.                                    .......Petitioners

                          Through:

                                Versus

HAZI GULAM RASOOL                                  ......Respondent
                Through:


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. This is a petition under Article 227 of the Constitution of India assailing the order dated 27.07.2011 passed by Ld. Senior Civil Judge- cum-ARC, Karkardooma Courts, Delhi, by which an application u/O 8 Rule 1A r/w Order 13 Rule 4 and under Section 65 of the Indian Evidence Act filed by the petitioners/defendants was dismissed.

2. A suit for possession was filed by the respondent on 10.10.2000 with respect to property bearing no. C-111A, Gali No. 5, Bhajanpura, Delhi. The petitioners/defendants were not aware of the said suit and as a result of this, an ex-parte decree was passed against them on 30.11.2000. The petitioners, after coming to know about the suit filed

an application under Order 9 Rule 13 C.P.C along with an application u/s 5 of the Limitation Act for condonation of delay. The application u/s 5 was dismissed on 17.09.2001 and consequentially, application under Order 9 Rule 13 was held to be not maintainable. The petitioner then filed an FAO on 21.09.2001 in the High Court, which set aside the impugned order on 17.10.2001 and remanded the case back to the lower court for deciding the applications under Order 9 Rule 13 and u/s 5 of the Limitation Act, after examination of evidence. The lower court, vide order dated 06.04.2009, directed the defendants (petitioners herein) to submit the originals of the documents relied upon, within four weeks time. When the date for producing evidence of the defendants came up on 10.02.2011; it was found that no photocopies of documents were on the court record. The petitioners moved an application under Order 8 Rule 1A (3) and Order 13 Rule 4 r/w Section 151 of the C.P.C, and also under Section 65 of the Evidence Act r/w Section 151 of C.PC. The above applications were dismissed by the Ld. Senior Civil Judge vide order dated 25.07.2011. This order has been challenged in the present petition.

3. In their application u/O 8 Rule 1A(3) r/w Order 13 Rule 4 and Section 151 C.P.C, the petitioners/defendants have stated that the following documents have been filed in the application u/O 9 Rule 13:-

a) General Power of Attorney of Promila Rani dt 10.01.1979

b) Photocopy of receipt of Rs. 4000/- dt 10.01.1979

c) Agreement Deed (photocopy)

d) Photocopy of Will of Promila Rani dt 28.09.1998

e) Photocopy of General Power of Attorney in favour of Farooq

Khan dt 28.09.1988

f) Photocopy of Agreement to sell dated 28.09.1998

g) Photocopy of Indemnity Bond dt 28.09.1998 with affidavit

h) Photocopy of receipt of Rs. 60,000/- dated 28.09.1998

i) Photocopy of possession letter dated 28.09.1998

j) Photocopy of Sale Deed dated 05.07.1999

It was also stated by the defendants that in the FAO filed by them in the High Court, the same list of documents have been filed in addition to a Police Complaint dated 31.08.1998 in respect of loss of some original documents. The petitioners/defendants have taken the ground that they were under a bonafide belief that the copies of the documents relied upon were already on record of the court along with the application u/O 9 Rule 13. They also stated that the entire set of documents were provided to the plaintiff both in the trial court and in the High Court, and that the originals could be produced with the affidavit by way of evidence so that the originals can be seen and returned.

4. The Ld. Senior Civil Judge dismissed the application on the ground that the defendants have violated the court's order dated 06.04.2009 wherein they were asked to submit original documents. The reason given by the defendants that they were under a bonafide belief that the copies of documents were on the court record was not sufficient to convince the Ld. Trial Court to grant leave. After inspection of the records by the court, it was found that the application u/O 9 Rule 13 C.P.C did not mention anything about the filing of any documents along with the application. Since there was nothing on record to substantiate the filing of documents, the court sought it fit to dismiss the application.

5. In the present petition, it is prayed that the above impugned order be set aside on the grounds that the Ld. Trial Court has failed to consider the fact that the documents sought to be filed by the petitioner were those of title and that they were very vital for their defence. If fair chance was not given to the petitioners to present their case, it would lead to the dire consequence of their dispossession. It was also contended that the lower court has not noticed that the copies of the documents annexed with the application under Order 9 Rule 13 could have accidentally been placed in the execution file which was not traceable.

6. The petitioners have relied on the judgment of this court in Aktiebolaget Volvo & Ors. Vs. R. Venkatachalam & Anr, 160 (2009) DLT 100 wherein the question for consideration was whether a party to

a civil suit may be allowed to file photocopies and be exempt from filing the original document on the file of the court. The court answering the question in the positive held that:-

"7. At the outset, I must state that, to hold that there is no power whatsoever in the court to exempt from placing of the original document on the file of the court on the condition of the party offering the same for inspection in the court as and when required, is not found by me to be in consonance with the principles of convenience and expediency with the times. .........The persons handling the court files and/or papers filed in the court work under great pressure and cannot be expected to take care of safety and preservation of the papers in the court file, as one would of his own. The papers filed, for being retained on the court file are punched not once or twice but several times. Often the papers are found to come loose from the court file and/or on repeated handling with torn corners. The documents which may be required to be filed in a lis may not merely be magazines or invoices as in this case but may be title documents to the immovable properties of the parties or of financial investments of the parties or as to educational qualifications/experience of parties and which may be irreplaceable qua the parties and loss/damages whereto may depreciate the value of the property/financial investments of the parties. The question posed above has to be adjudicated keeping all the said factors in mind and not merely the documents in the present........

9. I am, therefore, of the view that if the provisions of the codified law so permit, it would be expedient to, where the court finds that the original document is such, the loss or damage whereto could cause irreparable loss or inconvenience to a litigant, to allow such original to remain in the safety of its owner/possessor and to allow filing of photocopy thereof only, with a condition on the

party to produce the original for inspection as and when required."

7. In light of the above judgment, it is clear that the court should also look into the amount of loss or damage that would be cause to a litigant if they are refused the right to submit copies of documents relied upon. Thus, the petitioner's plea that they were under a bonafide belief that the documents were on court record should not be disbelieved. The very fact that an application was filed u/O 9 Rule 13 shows that the petitioners had an intention to contest the case. The documents relied upon were not found on record in the application u/O 9 Rule 13, but they have been placed on record before the High Court in the FAO filed by the petitioners on 21.09.2001 which has been stated in their application u/O 8 Rule 1A (3) and Order 13 Rule 4 r/w Section 151 of C.P.C. It is important to note that if the present application is not allowed, the petitioners shall suffer dispossession as the documents relied upon by them are of a very crucial nature being those relating to title like agreement to sell and sale deed.

8. Though the jurisdiction of this court u/A 227 is very limited, but in cases of flagrant abuse of fundamental principles of law or justice, where grave injustice would be done, it is expected to interfere.

9. In view of the dire consequences of suit for possession, I feel that the petitioners should be given opportunity to make out a proper defence, by being allowed to submit and prove the relied documents, as per law.

10. In view of the above discussion, the present petition is allowed, but subject to payment of cost of Rs.10,000/-.

M.L. MEHTA, J.

SEPTEMBER 28, 2012