Jammu & Kashmir High Court
Daljit Singh (Handicapped) Aged 74 ... vs Dhanwant Kour on 6 February, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Sr. No. 08
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- CM(M) No. 32/2022
CM No. 5643/2022
CM No. 2145/2022
Daljit Singh (Handicapped) Aged 74 years,
S/o Late Avtar Singh
R/o H. No. 125, New Rehari, Behind Shakuntla, Jammu.
.....Petitioner(s)
Through: Mr. Vijay Gupta, Advocate
Vs
1. Dhanwant Kour,
Wd/o Late Mohinder Singh
2. Parvinder Singh
3. Gurvinder Singh
Both Sons of Late Mohinder Singh
4. Amlok Singh
S/o Late Avtar Singh
All R/o Plot No. 51, Now 59
Near Dr. Santosh Khajuria
New Rehari, Jammu.
..... Respondent(s)
Through: Mr. Kishor Kumar, Advocate
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
06.02.2024
(Oral)
01. In the instant petition, Supervisory Jurisdiction of this
Court enshrined in Article 227 of the Constitution of India is being
invoked by the petitioner, seeking setting aside of order dated
06.01.2022 (for short "the impugned order") passed by the Court
of Ist Additional District Judge, Jammu (for short "the Trial
Court") in case titled as "Daljit Singh Vs Mohinder Singh (deceased)
& others".
02. Facts emerging from the record would reveal that the
petitioner herein instituted a suit for partition and injunction
against the defendants/respondents herein in respect of the
immovable properties detailed out in the said suit. During the
pendency of the suit, after the plaintiff/petitioner herein as also the
defendants/respondents herein led their respective evidence/s in
support of the case set up by them in their respective pleadings, the
plaintiff/petitioner herein filed an application on 01.12.2020,
seeking leave of the Court to place on record a certified copy of the
judgement and decree dated 26.02.2020 passed by 2nd Additional
Munsiff, Jammu and a certified copy of the lease-deed pertaining to
Plot No. 73 situated at Transport Yard Narwal, Jammu of M/s New
Karan bus Service Transport Yard, Jammu on the ground that the
said documents are necessary for the disposal of the case and that
the said documents came to be obtained by the plaintiff/petitioner
herein with great difficulty and allowing the plaintiff/petitioner to
place on record the documents in question would be in the interest
of justice, equity and fair play. The said application was followed by
filing of an additional affidavit by the plaintiff/petitioner herein in
support of the application, stating therein that one S. Balbir Singh
S/o S. Thakur Singh, R/o 23, Exchange Road Jammu informed the
plaintiff/petitioner herein on 23.11.2020 about the execution of the
aforesaid lease-deed whereupon the plaintiff/petitioner herein
applied for the certified copy of the same and obtained it on
27.11.2020 and that the plaintiff/petitioner herein was not knowing
about the said documents before 23.11.2020.
03. The defendants/respondents herein opposed the aforesaid
application by filing objections thereto inter-alia on the ground that
the documents in question ought to have been produced and placed
on record by the plaintiff/petitioner herein on or before the
settlement of issues and also that the documents in question do not
have any bearing on the case being irrelevant to the controversy.
04. The Trial Court upon considering the application as also
the objections filed thereto in terms of the impugned order rejected
the same, aggrieved whereof the petitioner has maintained the
instant petition.
Heard learned counsel for the parties and perused the
record.
05. The law on the subject of the effect of non-production of a
document was earlier contained in Order XIII Rule 2 of the Code of
Civil Procedure (CPC) which provision, however, came to be omitted
by Act 46 of 1999 w.e.f. 01.07.2002 and prior to its omission, same
would read as under:-
"Order XIII Rule 2 - Effect of non-production of documents:-
(1) No documentary evidence in the possession or power
of any party which should have been, but has not
been produced in accordance with the requirements of
Rule 1 shall be received at any subsequent stage of the
proceedings unless good cause is shown to the
satisfaction of the Court for the non-production
thereof; and the Court receiving any such evidence
shall record the reasons for so doing.
(2) Nothing in sub-rule (1) shall apply to documents-
a. produced for the cross-examination of the witness
of the other party, or
b. handed over to a witness merely to refresh his
memory."
06. It is significant to note here that while the provisions of the
Order XIII Rule 2 supra came to be omitted, as observed above, with
effect from 01.07.2002, the provisions of Order VII Rule 14 Sub-rule
(3) of Civil Procedure Code simultaneously came to be incorporated/
substituted/added by Act 22 of 2002 with effect from 01.07.2002
itself and the said Sub-rule (3) of Order VII Rule 14 of CPC provided
as follows:-
"Rule 14. Production of document on which plaintiff
sues or relies:-
(1) ..............
(2) ..............
(3) A 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 his behalf at the hearing of the
suit.
(4) .............."
Sub-rule (1) of Rule 14 of Order VII enjoins upon the
plaintiff to produce at the time of institution of suit all documents
on which he sues or relies upon and Sub-rule (2) provides that
where a document is not in possession of the plaintiff, he shall have
to state in whose possession such document is, whereas, Sub-rule
(3) lays down the consequences of failure of the plaintiff to produce
such documents and lastly Sub-rule (4) carves out exceptional cases
in which the provisions of this Rule would not apply.
Since, Sub-rule (3) of Rule 14 is the relevant provision
germane to the controversy in the instant petition, which at the cost
of repetition, states that a document which ought to have been
produced in the Court by the plaintiff at the time of presentation of
a plaint shall not thereafter be received in evidence at the hearing of
the suit, but it saves the power of the Court to grant a leave to
produce such document at a later stage. A Court, thus has a wide
discretion under Sub-rule (3) of Rule 14 of Order VII to allow the
production of documents at a later stage having regard to the facts
and circumstances of each case.
07. Thus, it can be said that the failure to produce the
documents as required by Rule 14 does not entail either rejection of
the plaint or dismissal of the suit, but the only penalty for failure to
produce the documents is laid down in Sub-rule (3), which
envisages that the plaintiff cannot be allowed to produce such
documents without the leave of the Court.
08. Having regard to the aforesaid position of law and reverting
back to the case in hand, it is manifest that the plaintiff/petitioner
herein sought leave of the Court to produce the documents in
question during the course of proceedings of the case, though,
admittedly after the closure of his evidence as also the evidence of
the defendants/respondents herein, to be more precise before the
hearing of final arguments of the parties and pronouncement of the
judgment thereon in the matter.
09. A deeper and closer examination of the impugned order
would manifestly tend to show that the Trial Court has misdirected
itself while rejecting the application of the plaintiff/petitioner herein
in terms of the impugned order, having wrongly proceeded to refer
to on the omitted/deleted provisions of Order XIII Rule 2 CPC supra
instead of the applicable provisions of Order VII Rule 14 CPC supra.
Seemingly, the matter has not received appropriate consideration by
the Trial court, thus necessitating the remanding of the case back to
the Trial court for re-visiting and re-considering the application
afresh, having regard to the provisions of Order VII Rule 14 CPC
supra.
10. For the foregoing reasons, the instant petition is allowed
and consequently the impugned order dated 06.01.2022 is set
aside, with a direction to the Trial Court to re-consider the
application of the petitioner, as directed above, and to pass
appropriate order in accordance with law after hearing the parties.
11. It is made clear that any observation which has been made
in respect of the application filed by the plaintiff/petitioner herein in
this order shall not be deemed to be an expression of any opinion as
to the maintainability of the said application or its merits thereof,
but shall be deemed to have been made for the purposes of the
disposal of the instant petition.
Disposed of accordingly.
(JAVED IQBAL WANI)
JUDGE
JAMMU
06.02.2024
Muneesh
Whether the order is speaking : Yes
Whether the order is reportable : Yes
