Dhrubdeo Pandit & Others vs Ranjeet Lal & Others
2021 Latest Caselaw 4606 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      (Civil Writ Jurisdiction)
                     W.P.(C) No. 4189 of 2012
                         ........

Dhrubdeo Pandit & Others                        ..... Petitioners
                           Versus
Ranjeet Lal & Others                        .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ............

For the Petitioners : Mr. Vishal Kumar Tiwari, Advocate Mr. Mudashar Nazar, Advocate.

For the Respondent Nos.1 to 3 : Mr. R. N. Sahay, Sr. Advocate Mr. Yashvardhan, Advocate.

........

09/06.12.2021.

Heard, learned counsel for the parties.

Learned counsel for the petitioners, Mr. Vishal Kumar Tiwari assisted by learned counsel, Mr. Mudashar Nazar has submitted that earlier the writ petition has been filed by five petitioners, who were the defendants in the court below, but during pendency of the writ petition one of the petitioner Govind Ram has died and his application for substitution vide I.A. No.1538/2015 has been filed, but dismissed as not pressed in terms of order dated 17.03.2016. The writ petition is still maintainable against the impugned order preferred by four of the writ petitioners, who were defendants in the court below.

Learned counsel for the petitioners has further submitted that impugned order dated 16.06.2012, passed by learned Sub-Judge-I, Giridih, in Title Suit No.71/2002, whereby after conclusion of the argument of the defendants, when certain lacuna has been pointed out, the plaintiffs/ respondents filed a document with regard to previous partition of the suit property vide application dated 08.06.2011, showing the previous partition between plaintiff Ram Prasad Ram and Babulal Ram before the Mahuri Baishya Maha Mandal on 02.07.1978.

Learned counsel for the petitioners has further submitted that said application has been allowed with a cost of Rs.1,000/-, but plaintiff cannot be allowed to patch up the lacuna after the argument of the defendant is concluded in view of provision given under Order 7 Rule 14 of the Code of Civil Procedure, which may be referred hereunder:-

Order 7 Rule 14 of Code of Civil Procedure 1908.

"14. Production of document on which plaintiff sues or relies.-

(1) Where a 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.

(2) Where any such documents not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

(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) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory."

Learned counsel for the petitioners has further submitted that original plaintiff namely Ram Prasad Ram filed suit in the year 2002, who died on 20.01.2008 and thereafter the son and the legal heirs of Ram Prasad Ram has been substituted on 19.07.2008 and after four years, said application has been filed when the argument of the defendants were concluded.

Learned counsel for the petitioners has placed reliance upon the judgment passed in the case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust reported in (2012) 8 SCC 706 (Para-17), which may profitably be quoted hereunder:-

"17. In the case on hand, the respondent-plaintiff to get a decree for specific performance has to prove that there is a subsisting agreement in his favour and the second defendant has the necessary authority under the power of attorney. Order 7 Rule

14 mandates that the plaintiff has to produce the documents on which the cause of action is based, therefore, he has to produce the power of attorney when the plaint is presented by him and if he is not in possession of the same, he has to state as to in whose possession it is. In the case on hand, only the agreement between the plaintiff and the second defendant has been filed along with the plaint under Order 7 Rule 14(1). As rightly pointed out by the learned Senior Counsel for the appellant, if he is not in possession of the power of attorney, it being a registered document, he should have filed a registration copy of the same. There is no such explanation even for not filing the registration copy of the power of attorney. Under Order 7 Rule 14(2) instead of explaining in whose custody the power of attorney is, the plaintiff has simply stated "nil". It clearly shows non-compliance of Order 7 Rule 14(2)."

Learned counsel for the petitioners has thus submitted that writ petition may be allowed by setting aside the impugned order.

Learned senior counsel for the respondent Nos.1 to 3, Mr. R. N. Sahay assisted by learned counsel Mr. Yashvardhan has submitted that though there was pleading with regard to the previous partition at paras-7 & 8 of the plaint. Though the document has not been filed, but this document has been filed with proper leave of the court after due explanation, which was acceptable to the trial court and the prayer has been allowed by the impugned order dated 16.06.2012 at a cost of Rs.1,000/- giving liberty to the defendants to avail the procedure of rebuttal, as such, defendants are not going to be prejudiced because of the impugned order.

Learned senior counsel for the respondent Nos.1 to 3 has placed Order 7 Rule 14 (3) of the CPC, which read as follows:-

"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."

Learned senior counsel for the respondent Nos.1 to 3 has further submitted that in the present case at any stage such remedy is available under Order 7 of the CPC, which has been rightly invoked by the plaintiff and after considering the same, the learned Trial Court on cost of Rs.1,000/- has allowed such application without prejudice to the right of the defendants as right of rebuttal has already given to the defendants.

Learned senior counsel for the respondent Nos.1 to 3 has relied upon the judgment passed by Coordinate Bench of this Court in the case of Anil Kumar Chourasia Vs. Smt. Prabha Devi & Ors. reported in (2010) 2 JLJR 164 (HC) and placed reliance upon the judgment passed by the Apex Court in the case of Kapil Kumar Sharma Vs. Lalit Kumar Sharma & Anr. reported in (2013) 14 SCC 612 as well as in the case of Marwari Relief Society Vs. Amulya Kumar Singh reported in (2019) 15 SCC 383 and also placed reliance upon the judgment passed by High Court of Judicature at Kolkata in the case of Kejriwal Enterprises Vs. General Manager, Ordnance Factory, reported in AIR 2 2000 Kolkata

225. Learned counsel for the respondent Nos.1 to 3 has thus submitted that no prejudice would be caused to the defendants, if they are given an opportunity of rebuttal apart from the cost.

Learned counsel for the petitioners, Mr. Vishal Kumar Tiwary has submitted that the cost is a meagre amount in this case as after approximately ten years such petition has been allowed after the conclusion of the hearing of the defendants, as such, cost may be enhanced.

Considering the rival submissions of the parties, looking into the facts and circumstances of the case, the judgment referred by learned senior counsel for the respondents are to the effect that such petition can be allowed with leave of the court under Order 7 Rule 14 (3) of the CPC. Apart from that if a document can be produced before an appellate Court, it would be proper to adduce at the stage of trial to minimise the multiplicity of litigation.

So far plea of petitioners with regard to cost of Rs.1,000/- is concerned, since there was much delay in filing said petition by the

plaintiffs, as such, instead of cost of Rs.1,000/- it shall be Rs.10,000/-, which shall be paid by the plaintiffs to the defendants within a period of twelve weeks.

The defendants shall receive the said amount after filing additional written statement, if requires or intent to file. The said amount shall be released and after that the parties will be given two dates for adducing evidence, if they require so, as the matter is of year 2002. The learned Trial Court is directed to expedite the trial and conclude the same within a reasonable time.

Accordingly, the instant writ petition is hereby dismissed with aforesaid observation.

(Kailash Prasad Deo, J.) Jay/