Vinod Katare vs The State Of Madhya Pradesh
2021 Latest Caselaw 8591 MP

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         HIGH COURT OF MADHYA PRADESH
                                 M.P. 6844/2019

          (Vinod Katare Vs. State of M.P. & Ors. )
Gwalior dated 10.12.2021
       Shri V.K. Bharadwaj, learned Senior counsel with Shri
Rohit Batham, Advocate for the petitioner.
       Shri Varun Kaushik, learned Government Advocate for
the respondents No. 1 to 3/State.

Shri N.K. Gupta, learned Senior Advocate with Shri M.L. Bansal, Advocate for the respondent No. 4.

Shri Raghvendra Dixit, Advocate for the respondent No.

6.

This petition has been filed against the order dated 12/12/2019 passed in case No. 121-A/2005 by 10th Additional District Judge, Gwalior, whereby, application filed by the respondents/defendants under Order VIII Rule 1 (3) r/w section 151 of CPC has been allowed and the documents annexed with the application have been taken on record.

Shri V.K. Bharadwaj, learned senior counsel appearing on behalf of the petitioner submits that he is ready to argue the petition, but the respondent No. 7 is unserved so far.

Shri N.K. Gupta, learned senior counsel appearing on behalf of the respondent No. 4 submits that the respondent No. 7 did not appear before the trial court also and ex-parte proceedings were undertaken against him, therefore, his service should be dispensed with.

The impugned order indicates that ex-parte proceedings were undertaken by the trial Court against respondent No. 7, hence, service against him is dispensed with.

Heard learned counsel for both the sides and perused the material available on record.

Shri V.K. Bharadwaj, learned senior counsel appearing on behalf of the petitioner submits that learned trial Court vide

HIGH COURT OF MADHYA PRADESH M.P. 6844/2019

its order dated 15/10/2019 had dismissed the application filed by the plaintiff to call for the original revenue record and Patwari to prove the certified copies of the revenue record stating that the certified copies of the revenue record are admissible in evidence and original record and Patwari's evidence is not required. Now the application filed by the defendants under Order VIII Rule 1 (3) of CPC with regard to some revenue record and other documents has been allowed. The documents were in possession of the defendants. No reason whatsoever has been given to explain the delay in filing of this application. The objection of the plaintiff has not been dealt with in the impugned order. The leave of the Court under Order VIII Rule 1 (3) of CPC is not empty formality, but sound reason should be recorded in granting such leave which are missing in this case. The things which ought to have been done as per the provisions of law must have been done accordingly. The impugned order suffers from patent illegality which deserves to be quashed and set aside. He has placed reliance on the judgments of this Court delivered in the cases of Hind Kumar Kohli vs. Vimalchand Patni and Ors reported in 2017 (111) MPWN 22, Arvind vs. Pushpa @ Devi reported in 2016 (11) MPWN 88, Hyjinus Kerketta vs. State of M.P. reported in 2016 (11) MPWN 89 & Ashoka Fincap (M.P.) Pvt. Limited (M/s.) vs. Shikha Grih Nirman Sahkari Sanstha reported in 2017 (11I) MPWN

21. Shri N.K. Gupta, learned senior counsel appearing on behalf of the respondent No. 4/defendant submits that on

HIGH COURT OF MADHYA PRADESH M.P. 6844/2019

earlier occasion the plaintiff himself has filed several applications of similar nature which came to be allowed by the trial Court. The documents proposed to be filed by the defendants are relevant and necessary for proper adjudication of controversy between the parties. All the documents are from public record.

It is further submitted that the learned trial Court by earlier order dated 15/10/2019 dismissed the application of the plaintiff for summoning the original revenue record and the Patwari to compare or to prove the certified copies of the revenue record which are admissible in evidence. The defendants have filed the present application seeking leave of the Court for seven public documents including Khasras of Samvat 2006 to 2009. Some of the documents appeared to be manipulated and forged. The plaintiff will be given opportunity to cross examine the witnesses of the defendants with regard to these documents. The learned trial Court after considering the contentions put forth by both the sides has allowed the application of the defendants.

Learned Senior counsel has also submitted that valuable property situated at prime location is involved in the matter. The present suit has not been disposed of despite definite time line prescribed by this Court on earlier two occasions. The Hon'ble Supreme Court in the year 2017 has also directed to expeditiously decide the matter, but the plaintiff has deliberately delaying the proceedings. This petition has also been filed with the same object, which deserves to be dismissed.

HIGH COURT OF MADHYA PRADESH M.P. 6844/2019

Heard. Considered.

The provision of Order VIII Rule -A (3) of CPC mandates that the document which ought to be produced in Court by the defendants as per Rule 1-A (1) & (2), but is not so produced shall not be received in evidence without leave of the Court.

The legal position expounded in the judgments cited on behalf of the petitioner is not disputed that granting of the leave for taking the documents on record is not empty formality, but the same should be granted on the cogent reason. However, in this regard, Hon'ble Supreme Court in the case of Sugandhi (dead) by legal representatives and Anr. vs. P. Rajkumar represented by his power agent reported in (2020) 10 SCC 706 has held as under :-

"(1) to (7) xxxxxxxxxxxxxxxxx

8. Subrule (3), as quoted above, provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court. The discretion conferred upon the court to grant such leave is to be exercised judiciously. While there is no straight jacket formula, this leave can be granted by the court on a good cause being shown by the defendant.

9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court

HIGH COURT OF MADHYA PRADESH M.P. 6844/2019

while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3)."

Indisputedly, the present suit has been filed for declaration of the title mainly on the basis of entries in public record. The plaintiff has filed revenue record to prove his rights. The defendants have also made an application to take the documents on record which admittedly pertains to public record. The relevance and necessity of the documents have not been questioned. Thus, the same appear to be necessary for substantial justice. The application under Order VIII Rule 1 (3) of CPC has been filed in the beginning of the defendants' evidence. The plaintiff will get opportunity to cross examine the defendant's witnesses with regard to these documents. Hence, no prejudice is going to be caused to the plaintiff by taking such public documents on record.

The trial Court in this case on earlier occasions

HIGH COURT OF MADHYA PRADESH M.P. 6844/2019

certainly declined the prayer of the plaintiff to call original revenue record to prove the certified copies of the same, but at this juncture the defendants have not prayed for calling the original record, but they only intend to file certified copies of public documents. However, if at the time of trial, it is found that certified copies of the revenue record are suspicious then the trial Court would be competent to call the original record to check and verify the veracity of the certified copies. Therefore, the contentions of learned counsel for the petitioner is not tenable that the trial Court has wrongly allowed the application of the defendants.

As indicated above, the documents proposed to be taken on record are necessary and relevant to adjudicate the controversy between the parties. All the documents are public documents. No prejudice is going to be caused to the plaintiff by filing such public documents. Rather, the same would facilitate the Court to reach to a logical conclusion in the matter, therefore, keeping in mind the goal of substantial justice, this Court does not find any illegality in the impugned order. However, for delay on the part of the defendants, it is appropriate to impose adequate cost upon them.

In view of the above and for the reasons stated, the petition is disposed of as under :-

(1) The decision of the trial court to grant leave to the defendants to file the documents in question is maintained, subject to the condition that the defendants shall pay the cost of Rs. 2,000/- (Rs. Two Thousand Only) to the plaintiff.

HIGH COURT OF MADHYA PRADESH M.P. 6844/2019

(2) Since the matter is already inordinately delayed despite directions of this Court as well as by Hon'ble Supreme Court, the trial Court shall now take up the matter on priority and without granting unnecessary adjournments shall ensure that the same is disposed of at the earliest possible.

(Satish Kumar Sharma) Judge

Durgekar*

SANJAY NAMDEORAO DURGEKAR 2021.12.11 14:39:37 +05'30'