Kamal Kumar vs Counsel For The
2022 Latest Caselaw 2525 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                    ON THE 2nd DAY OF MAY, 2022
                                  BEFORE




                                                            .
           HON'BLE MS. JUSTICE JYOTSNA REWAL DUA





                 CIVIL MISC. PETITION MAIN (ORIGINAL)
                             NO.2 OF 2022
               Between:-





               KAMAL KUMAR
               SON OF LATE SHRI SULEKH CHAND,
               AGED 58 YEARS,
               RESIDENT OF HOUSE NO.1,
               PHASE-II, NEW NALAGARH,

                     r        to
               PARGANA AND TEHSIL NALAGARH,
               DISTRICT SOLAN, H.P.

                                      .....PETITIONER/PLAINTIFF

                 (BY MR. J.L. BHARDWAJ, ADVOCATE)

                 AND

          1.      SMT. VIMLA
                  WIFE OF LATE SHRI KHUSHI RAM,



          2.      SHRI RAJESH KUMAR,
                  SON OF SHRI KHUSHI RAM,




                  BOTH RESIDENTS OF
                  VILLAGE RAKH RAM SINGH,





                  NATIONAL HIGHWAY -21A,
                  PARGANNA AND TEHSIL NALAGARH,
                  DISTRICT SOLAN, H.P.





                                  .....RESPONDENTS/DEFENDANTS

               (BY    MR.      BHUPENDER       GUPTA,       SENIOR
               ADVOCATE        WITH     MR.    JANESH       GUPTA,
               ADVOCATE.)
    ____________________________________________________________
               This petition coming on for admission this day, the

    Court passed the following:




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                                         2


                                ORDER

Learned Trial Court has dismissed plaintiff's

application moved under Order 7 Rule 14(3) read with Section

151 of Code of Civil Procedure (in short CPC) for producing on

.

record certified copy of mutation and jamabandi. Aggrieved,

the plaintiff has preferred the present petition under Article

227 of the Constitution of India.

2. A Civil Suit for declaration with consequential

relief of permanent prohibitory and mandatory injunction in

respect of Khasra No.281 was instituted by the

petitioner/plaintiff on 07.12.2013. It was inter-alia pleaded

that the petitioner/ plaintiff had right to use and enjoy the

passage of 0-3 Karam in width and 38 karam in length in the

center of Khasra No.281. Written statement was filed on

09.05.2014. The parties led evidence. The arguments were

heard on 27.11.2019. The matter was fixed for pronouncement

of the judgment on 26.12.2019. The civil suit was fixed for re-

hearing on 22.03.2021, on which date, the petitioner/plaintiff

moved an application under Order 7 Rule 14(3) read with

Section 151 of CPC seeking permission to produce certified

copy of mutation No.276 dated 14.06.1991 and copy of

jamabandi of Khasra No.369/281. The

respondents/defendants in their reply opposed the payer

made in the application. Vide order dated 16.12.2021, learned

Trial Court dismissed the application. This order has been

impugned in the present petition.

.

3. I have heard learned counsel for the parties and

gone through the material available on record.

4. Learned counsel for the petitioner/plaintiff argued

that learned Trial Court committed material illegality and

grave irregularity in dismissing the application. The fact that

r to documents sought to be produced by the plaintiff were not in

his knowledge, was averred in the application itself. The

documents in question were the revenue record. The

production of the documents would not have caused any

prejudice to the respondents/defendants, therefore, the same

should have been taken on record. In support of such

submissions, learned counsel for the petitioner placed reliance

upon the judgments in AIR 2004 Calcutta 225, titled

Kejriwal Enterprises Vs. General Manager, Ordnance

Factory and others and AIR 1989 Punjab and Haryana

226 titled M/s Preet Cold Storage and Ice Factory and

another Vs. M/s United Commercial Ban, Sangol and

others.

Defending the impugned order, learned Senior

Counsel for the respondents/defendants argued that the

application moved by the petitioner/plaintiff under Order 7

Rule 14(3) read with Section 151 CPC did not disclose any

cogent reason as to why the documents now sought to be

.

produced could not be produced earlier. There is no

explanation in the application as to why the documents were

not made part and parcel of the civil suit. It was further

argued that the mutation sought to be produced by the

petitioner/plaintiff, was stated to have been attested on

14.06.1991, whereas

the civil suit was

07.12.2013. The civil suit pertains to Khasra No.281. The

plaintiff had tendered in evidence mutation No.270, pertaining preferred on

to Khasra No.370/281. It was open to the plaintiff to tender in

evidence mutation No.276 and jamabandi pertaining to Khasra

No.369/281, at the relevant time. The petitioner/plaintiff

cannot be allowed to tender in evidence mutation No.276 and

jamabandi of Khasra No.369/281 at this belated stage of suit

in his endeavour to remove lacuna in the evidence.

5. It will be pertinent to take note of following

observation made in (2013) 14, SCC1, titled Bagai

Constructions Vs Gupta Building Material Store:-

"15. After change of various provisions by way of amendment in CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within

a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for

.

adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those

applications are to be considered. We are satisfied that the plaintiff has filed d those two applications before the trial court in order to overcome the

lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the

applications after more than sufficient opportunity

had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still e the

plaintiff has not placed those bills on record. It further shows that final arguments were heard on a number of times and the judgment was reserved

and only thereafter, in order to improve its case,

the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151

CPC."

In the instant case, the civil suit was filed by the

petitioner/plaintiff on 07.12.2013. It pertains to Khasra

No.281. Written statement in the civil suit was filed on

09.05.2014. The parties thereafter led evidence. The

arguments in the matter were heard on 27.11.2019. The

matter thereafter was fixed for pronouncement of judgment on

26.12.2019. It was fixed for re-hearing. On 22.03.2021, when

.

the matter was fixed for re-hearing, an application under

Order 7 Rule 14(3) read with Section 151 of CPC was moved

by the petitioner/plaintiff. The prayer in the application was

confined to the production of certified copy of mutation No.276

dated 14.06.1991 and copy of jamabandi of Khasra

No.369/281. The petitioner/plaintiff has not even prayed in

the application for tendering in evidence of the additional

documents sought to be produced by him. Be that as it may.

Mutation No.276 sought to be produced by the

petitioner/plaintiff is stated to have been attested as far back

as on 14.06.1991. This statedly pertains to Khasra

No.369/281. As argued by learned counsel for the

respondents, the petitioner/plaintiff has already led evidence

in respect of attestation of mutation with respect to Khasra

No.370/281. It cannot be believed that plaintiff had no

knowledge about attestation of mutation No.276 on

14.06.1991 and the consequent jamabandi w.r.t. Khasra

No.369/281.

In the aforesaid background, it was for the

petitioner/plaintiff to produce the relevant revenue record at

the appropriate time. By simply stating in the application filed

in the year 2021 that the petitioner/plaintiff was not a party to

mutation No.276 and, therefore, he could not place on record

.

its copy as well as jamabandi pertaining to Khasra

No.369/281, at the time of filing of civil suit, will not entitle

him to produce these documents at this belated stage. Both

sides have already led evidence in the civil suit. It is not

petitioner's case that adequate opportunity to lead evidence

was not granted to him. The case had been heard and fixed

pronouncement of judgment. It is now fixed for re-hearing. The

conduct of the petitioner/plaintiff shows that in the guise of

the application, attempt is being made to protract the trial.

Allowing petitioner's prayer at this belated stage of the suit, in

the facts and circumstances of the case, would definitely cause

prejudice to the respondents/defendants. Parties would then

be required to lead additional evidence. Lacunae, if any

occurred in the evidence led by the plaintiff cannot be allowed

to be plugged in at this stage. The judgments relied upon by

learned counsel for the petitioner/plaintiff are not applicable

to the facts of the case. The impugned order does not suffer

from any infirmity.

Consequently, the present petition is dismissed, so

also the pending miscellaneous application(s), if any.

Jyotsna Rewal Dua

.

                                                     Judge





    May 2, 2022
        R.Atal





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