Kailash Chandra Sarma vs Rumamoni Das
2022 Latest Caselaw 5102 Gua

                                                                         Page No.# 1/16

GAHC010131582021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : CRP(IO)/80/2021

            KAILASH CHANDRA SARMA
            S/O- LT. RUDRESWAR SARMA, R/O- JYOTI NAGAR, GHY-21, DIST.-
            KAMRUP (M), ASSAM



            VERSUS

            RUMAMONI DAS
            W/O- SRI BHUBAN CH. DAS, R/O- KAHILIPARA, NEAR TATRISH KOTI
            MANDIR, NEAR A.S.E.B. POWER HOUSE, P.S. DISPUR, GHY-19, DIST.-
            KAMRUP (M), ASSAM



Advocate for the Petitioner   : MR. S P ROY

Advocate for the Respondent : MR. S SHARMA

BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY

For the Appellant : Mr. D Mazumdar, Senior Advocate

For the Respondents : Mr. S Sharma, Advocate

Date of Hearing : 04.11.2022, 21.11.2022 & 05.12.2022

Date of Judgement :21.12.2022 Page No.# 2/16

JUDGEMENT & ORDER (CAV)

Heard Mr. D Mazumdar, learned Senior counsel for the petitioner. Also heard Mr. S Sharma, learned counsel for the respondent.

2. This present petition under Article 227 of the Constitution of India is filed assailing the impugned order dated 01.04.2021 passed in TS No. 545/2007 by which the learned Munsiff No. 2, Kamrup (M) at Guwahati rejected the petition filed under Order 7 Rule 14 (3) of the CPC read with Section 151 of the said Code.

3. The background facts:

The background fact of the present litigation can be summarized as follows:

I. The petitioner as plaintiff instituted a suit being TS No. 545/2007 before the learned court of Munsiff No. 2, Kamrup at Guwahati praying for a decree of declaration of right, title and interest and recovery of khas possession, cancellation of a sale deed being sale deed No. 3106/2001 dated 02.04.2001 and another sale deed being sale deed No. 936/02 dated 08.02.2002 and for permanent injunction.

II. It is an admitted fact that at the time of filing of the plaint, the plaintiff had not annexed any document, which the plaintiff relied on in support of his case.

III.On notice being served, the defendant appeared and filed written statement.

IV. Thereafter, issues were framed and plaintiff as PW1 filed Page No.# 3/16

evidence on affidavit on 03.11.2009 alongwith 25 numbers of exhibits and the said plaintiff was cross-examined on 20.02.2010, 18.03.2010 and 29.04.2010.

V. Though those documents were exhibited and defendant cross- examined on the aforesaid documents, however on an objection raised by the defendant on the admissibility of the said exhibits for the reason that those were not part of the plaint nor those were given at the time of fixing a date for issues and document, and accordingly the learned trial court under its order dated 14.06.2010 directed that the objection raised by the defendant will be considered at the time of argument.

VI. Thereafter, the remaining plaintiff's witnesses were cross- examined. Defendants laid its evidences as DWs and plaintiff also cross-examined those defendant's witnesses.

VII.Thereafter, 04.02.2020 at the time of argument the plaintiff side filed the aforesaid application under Order 7 Rule 14 (3) read with Section 151 of the CPC with a prayer to accept those documents which were exhibited alongwith the evidence of PW1.

VIII.The defendant side filed objection to the said application and on the basis of said application and objection the learned trial court passed the impugned order rejecting the prayer of the plaintiff to accept those documents as exhibits.

4. Submission of petitioner:

Mr. D Mazumdar, learned counsel for the petitioner submits the following:

I. Though the plaintiff did not annex any document alongwith the Page No.# 4/16

plaint, however, there were mentions of those documents in the plaint as well as there are reflections in the pleadings that the plaintiff relied on those documents.

II. It is further submitted by Mr. Mazumdar that the averments made in the plaint are based only on those exhibits and it will be discernible from the evidence on affidavit that the those documents were annexed in support of the pleadings made in the plaint as well as on the evidence on affidavit. Therefore, no prejudice would be caused to the defendant, if those documents are accepted.

III. Mr. Mazumdar further argues that the plaintiff had not raised any objection in the written statement rather they had filed the written statement refuting those pleadings made in the plaint based on those documents which are exhibited along with the affidavit. Therefore, in that count also no prejudice has been caused no prejudice shall be caused if such documents are allowed to be accepted as exhibit.

IV. He further submits that the procedure is handmaid of justice and procedure and technical hurdle shall not be allowed to come in a way of the court while doing substantive justice. However, while rejecting the application, the learned trial court has ignored such settled proposition of law and mechanically dismissed the petition.

V. He further submits the fact also remains that the learned court below has not passed any order rejecting the exhibits and kept it Page No.# 5/16

pending for determination at the time of argument only and therefore, at the stage of argument the learned court ought not to have rejected such application.

VI. In support of such contention, Mr. Mazumdar also relies on the decision of the Hon'ble Apex Court in the case Sugandhi (Dead) by Legal Representatives and another vs. P. Rajkumar represented by his Power Agent Imam OLI reported in (2020) 10 SCC 706.

VII. Mr. Mazumdar further submits that it is the object of the court to bring out the truth and therefore in the present case also bringing out the truth is the essence and if the evidences are allowed to be treated as exhibits, the truth will come out and same will also not prejudice the defendant for the reason that the defendants had already cross-examined the plaintiff on those pleadings.

VIII. Mr. Mazumdar, learned Senior counsel also submits that there is no delay in filing the application as the learned court below itself has decided that the matter shall be taken up at the time of argument and the petitioner as an abandoned caution has filed the application at the stage of argument. So therefore, it cannot be said that the application was filed at the belated stage.

IX.Mr. Mazumdar further relies on the decision of the Andhra Pradesh High Court in Cable Corporation of India, Ltd, Mumbai vs Sanghi Industries Ltd reported in AIR 2003 Andhra Pradesh 282:: (2003) 3 CIVLJ 43 and the decision of Monowar Hussain Vs Manoranjan Das reported in AIR Page No.# 6/16

2016 Gauhati 62 :: (2016) GAU LR 298.

5. Submission of respondents:

Per contra, Mr. S Sarma, learned counsel for the respondent submits as follows:

I. The provision of Order 7 Rule 14 Sub-rule 2 and 3 is mandatory in nature and the plaintiff ought to have filed the documents it relied upon. It is mandatory on the part of the plaintiff to annex and supply along with the plaint the documents that the plaintiff relies on in support of his case. However, such document has not been annexed with the plaint nor the same has been submitted before the court at the time, when the matter was fixed for settlement of issues and production of documents. Therefore, the defendant could only file his defence without having the copy of those documents, which subsequently the plaintiff wanted to rely on in proof of his case and if such documents are allowed to be exhibited the same will wholly prejudice the case of the plaintiff and if such documents are allowed at this stage the suit is to be remanded back at a stage when at the stage of WS and plaintiff should be allowed to file a written statement, which will require denovo trial and the same will prejudice the defendant.

II. He further submits that barring few documents, none of the total 25 documents were mentioned in the plaint and therefore, it is not correct to say that the plaintiff made statement regarding those statements.

III.The learned counsel further submits that the cross-examination was done on 29.04.2010. On that date, the defendant had raised Page No.# 7/16

objection regarding the admissibility of documents. However the plaintiff had filed its application on 04.02.2020 i.e. almost after 10 years. Therefore, on this count alone, the present application is liable to be dismissed.

IV. The further contention of the learned counsel for the respondent is that the whole ground for not annexing the documents along with the plaint is stated to be the ignorance of law and ignorance of law cannot be a ground for such excuses inasmuch as the plaintiff himself is an Advocate.

V. It is further submitted that the case was fixed for argument on 17.05.2012 and same continued till 04.02.2020 and during this period many dates have been fixed for argument but the plaintiff has not filed such application. Therefore, such litigant should not be granted relief in exercise of power under Article 227 of the Constitution of India.

VI. It is further submitted that in the cases relied on by the learned Senior counsel including Sugandhi (supra) satisfactory explanation was given, however, in the present case no explanation what so ever is given except the ignorance of law. Therefore, such ground is not sustainable and the same is liable to be dismissed.

VII.He further submits that the learned trial court has not committed error of jurisdiction, therefore, the present application under Article 227 of the Constitution of India is liable to be dismissed inasmuch as this court exercises its power under Article 227 of Page No.# 8/16

the Constitution, when there is a jurisdictional error or a failure of justice. In the present case there is no failure of justice inasmuch as the plaintiff has got enough time to get their defect corrected. For the fault of the plaintiff, the defendant should not be allowed to suffer.

VIII.It is submitted that as the documents were not available at the time of filing of written statement, the defendant could not adduce any rebuttal evidence which has caused serious prejudice to him. As the documents were all within possession, knowledge and power of the plaintiff, the failure of the plaintiff to produce those documents at the time of filing the plaint or at the subsequent stage at the earliest opportunity, will seriously prejudice the plaintiff.

IX. In support his case he relies on the decision of Surjya Dev Rai vs Ram Chander Rai and Ors. reported in (2003) 6 SCC 675 and Thiruvengada Pillai v. Navaneethammal reported in AIR 2008 SCC Supplement 1542.

6. Decision and reasons:

I have given anxious consideration to the submissions made by the learned counsels for the parties.

I. For proper adjudication, let this court first look into the document sought to be exhibited and corresponding pleadings in plaint and written statement and also the cross-examination in the following manner:

Documents Pleading in plaint Cross-examination Page No.# 9/16

Ext. 1 Judgment At paragraph 5 pleaded No cross-examination passed by Executive regarding filing of the Magistrate, Kamrup. case under Section 145/146 of Cr.P.C. and direction issued in it.

Ext 2 police report. Police report is a part of No cross-examination proceeding of case No. 148 M/1995 before Executive Magistrate. No specific pleading made.

Ext 3 receipt dated     Pleaded at paragraph 5       Cross-examined
27.09.2000 against      regarding permission fee
permission fees.        and construction of
                        boundary wall.
Ext 4 NOC by GMC for No specific pleading but        Cross-examined
construction of         not relates to Ext. 3 and
boundary wall.          construction of boundary
                        wall.

Ext. 5 Sale Deed Pleaded at paragraph 3. Cross-examined 7733/2001 dated 20.09.2001.

Ext. 5(i) NOC issued Pleaded at paragraph 3. Cross-examined by GMDA.

Ext. 5(ii) NOC issued Pleaded at paragraph 3. No cross-examination by Deputy Commissioner Kamrup.

Ext. 6 Sale deed No.    No pleading regarding        Cross-examined
544 (A) dated           such sale deed, however

06.05.1975 relating to it is pleaded at paragraph purchase of land by 3 that plaintiff purchased Gopal Priya Devi. the land from Gopal Priya Devi.

Ext. 7 Sale deed no. Though number of the Cross-examined 1503 of 1971 dated sale deed not pleaded, 16.02.1971 relating to however, it is pleaded Page No.# 10/16

purchase of land by that Keshab Ch. Sarma Keshab Sarma from purchased a specific land Saruram Rabha. from Saruram Rabha.

Ext.8 death certificate Pleaded at paragraph 3 No cross-examination of Gopal Priya Devi. that Gopal Priya Devi expired on 17.10.2001.

Ext. 9 Sketch map of No specific pleading Cross-examined Dag No. 332. regarding sketch map however there are pleadings at different paragraph including paragraph 9, 4 relating to Dag No. 332 and regarding ownership of the said Dag.

Ext. 10 Jamabandi of Patta No. 112 and Dags No cross-examination Patta No. 112. thereunder are mentioned at paragraph 4 and 5 and the ownership of the same.

Ext. 11 Order of ASO It is pleaded at No cross-examination in Mutation Case No. paragraph No. 4 on the 45/97. death of plaintiff's father plaintiff corrected revenue record in the year 1997.

Ext 12 Sale deed no. There is a mention at Cross-examined

purchased land of Dag and that Keshab Sarma No. 331. purchased it.

Ext. 13 Deed No.       There is mention at           Cross-examined
8180 /73 (purchased    paragraph 4 that
by Rudreswar Sarma     Rudreswar Sarma is the
from Keshab Sarma).    father of the plaintiff.
Ext. 14 Sale deed No. No pleading                    No cross-examination
                                                                                 Page No.# 11/16

3011 of 62 purchased
by Pabindra and
Surendra Nath
Bhattacharyya.
Ext. 15 FIR dated         Pleaded at para 10 of the No cross-examination
27.08.97.                 plaint

Ext. 16 Seizure list of Seizure list is a part of Cross-examined power of attorney. proceeding of police case No. 280/97 as pleaded in para 10.

Ext. 17 Dispur PS case Pleaded in para 6 of the Cross-examined No. 24/2001. plaint.

Ext. 18 Police report     Police case is mentioned    Cross-examined
of Panbazar Police        in the plaint in para 10
Case No. 280/1997         and para 6.
and Dispur Police
Case No. 24/2001
Ext. 19 & 20 Various      No pleading in plaint.      No cross-examination
criminal proceeding
against Manoj Kalita
Ext. 21 Misc (J) No.      Pleaded in para 8           Cross-examined
10/2004-2005 before
Settlement Officer.
Ext. 22 Sale Deed No. Pleaded in para 9               Cross-examined
8158 dated
09.11.2000
Ext. 23, 23(1) & 23(2) No pleading                    Cross-examined
Documents in respect
of Manoj Kalita @
Barman



             II.       From the aforesaid, it is clear that the pleading in the plaint is

having a relation with the documents exhibited. The defendant has not raised any specific plea at the initial stage of filing written statement regarding non compliance of provision of Order 7 Rule Page No.# 12/16

14. In the plaint there are mention of the vital document exhibited and certain incidents, which relates to the fact pleaded. It is seen from the cross-examination of the plaintiff's witnesses that though objection regarding exhibiting such documents were raised for the reason of non-compliance of the provision of Order 7 Rule 14 CPC, however, the witnesses were cross-examined on most of the vital exhibited documents. The fact also remains that the learned trial court below had not taken any decision to the objection in exhibiting the documents immediately rather it deferred the decision till the stage of argument. In the meantime, the other PWs were examined and cross-examined, the DWs were examined and cross-examined. In view of the aforesaid factual backdrop, now this court is to determine whether at this stage it can be permitted to exhibit the documents and if such permission is granted whether the defendant shall irreparably and seriously be prejudiced.

III. From the aforesaid table and pleading, it is seen that the plaintiff through their pleading claimed the right title and interest over the suit land by virtue of certain sale deeds and also pleaded mutation in their favour. The plaintiff also pleaded existence of certain disputes, prior to filing of the suit and decision of Executive Magistrate and also pleaded regarding existence of certain criminal cases. The document exhibited relates to the pleading made and those are not germane to the pleading made. The facts also remain that the defendant has not raised any specific plea in the written statement regarding non-adherence of Page No.# 13/16

the provision of Order 7 Rule 14. From the materials on record, it is also seen that the plaintiff witnesses were duly cross-examined by the defendant's counsel touching not only the pleading of the plaintiff but also on most of the documents exhibited.

IV. In case of Maria Margarida Sequeria Fernandes vs Erasmo Jack de Sequeira reported in (2012) 5 SCC 370, the Hon'ble Apex court held that truth should be the guiding star in entire judicial process and truth alone has to be the foundation of justice. Discovering truth is not only mandate but obligation and bounding duty of the Judges. While dealing with certain earlier decisions, the Hon'ble Apex Court further held that court must give greater emphasis on the veracity of pleading and document in order to ascertain the truth.

V. In case of Sugandhi (supra), the Hon'ble Apex court while dealing with provisions of Order 8 Rule 1A of the Code held that procedure is the handmaid of justice. Procedural and technical hurdle shall not be allowed to come in the way of the court while doing substantial justice. It was further held that if the procedural violation does not seriously cause prejudice to the adversary party, court must lean towards doing substantial justice rather than relying on procedural and technical violation. In this decision also, the Hon'ble Apex Court emphasized that court should take appropriate steps to trace out the underlying truth in every disputes.

VI. In the aforesaid factual background and settled proposition of law, the object of the court should be to take out the truth Page No.# 14/16

whether the story pleaded by the plaintiff is correct or the defendant is correct. To bring out such truth, in the considered opinion of this court, consideration of the exhibited documents shall be necessary and in absence of such exhibits, a just decision cannot be arrived at.

VII. As the defendant have substantially cross-examined the plaintiffs on pleading and on most of the exhibits, in the considered opinion of this court no serious prejudice shall be caused to the defendant side, if the documents so exhibited are directed to be taken on record.

VIII. This court is also of the further opinion that interest of the defendant can still be protected, if they are given a chance to again cross-examine the witnesses who had exhibited the documents/ exhibits.

IX. This court is also of the view that the plaintiff has not acted promptly when it was necessary and delayed the matter. The plaintiff could have filed an application for producing those documents during filing of his evidence on affidavit or at best could have file such application at the stage immediately after his cross-examination, when the objection to the documents were raised, but awaited till the time of argument. Therefore, this court of the view that the defendant is entitled for some cost for this lethargic behavior of the plaintiff and such cost is determined at Rs. 25,000/- to be paid by the plaintiff to the defendant.

X. This court is also of the view that in the given fact and Page No.# 15/16

circumstance of the present case, the procedural and technical hurdle shall not be allowed to come in the way of the court while doing substantial justice inasmuch as in the given fact of the present case, substantial justice shall prevail, if the exhibited documents are allowed to be accepted as exhibits.

XI. As this court is of the opinion that the learned trial court has rejected the petition on hyper technicalities and insisted on the procedural law and also passed the impugned order in ignorance of the settled proposition of law as discussed hereinabove resulting in miscarriage of justice and therefore, this court is within its competence and jurisdiction to pass such order even in terms of the ratio laid down in the case of Surjya Dev Rai (supra). In the given fact of the present case, the ratio laid down in Thiruvengada Pillai (supra) shall have no application in the present case.

7. Directions:

Therefore in the fact and circumstance in the present case and also considering the settled proposition of law as discussed hereinabove, the present revision petition is allowed in the following terms:

I. The plaintiff shall present before the learned trial court be allowed to formally exhibit the documents already exhibited along with his evidence on affidavit and the learned court below shall formally mark those exhibits.

II. The defendant shall be given an opportunity to cross-examine the PW1, if so desires.

Page No.# 16/16

III. Thereafter, the learned court below shall proceed with the matter.

IV. The plaintiff shall deposit the cost of Rs. 25,000/- before the learned court below and the same may be given to the defendant.

8. While parting with the record, it is made clear that any observations made in the present petition touching the merit of pleading and documents should not influence the learned trial court in finally deciding the suit and same needs to be decided in terms of settled proposition of law. The observation made in the present petition by this court is only for the purpose of the determination of the present lis and not on the merit of the claims and counter claims of the parties.

JUDGE

Comparing Assistant