Rakesh Kashyap vs Smt. Ragini Kashyap
2024 Latest Caselaw 15091 MP

Madhya Pradesh High Court

Rakesh Kashyap vs Smt. Ragini Kashyap on 21 May, 2024

Author: Milind Ramesh Phadke

Bench: Milind Ramesh Phadke

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                     BEFORE
                                   HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                                                  ON THE 21 st OF MAY, 2024
                                              MISC. PETITION No. 6392 of 2023

                           BETWEEN:-
                           RAKESH KASHYAP S/O SHRI MANGILAL KASHYAP,
                           AGED ABOUT 43 YEARS, OCCUPATION: SERVICE
                           RESIDENT OF 474-A, SURESH NAGAR THATIPUR,
                           GWALIOR (MADHYA PRADESH)

                                                                                         .....PETITIONER
                           (BY SHRI SIDDHARTH SHARMA - ADVOCATE)

                           AND
                           SMT. RAGINI KASHYAP W/O SHRI RAKESH KASHYAP
                           D/O AMAR SINGH YADAV, AGED ABOUT 41 YEARS,
                           SHANKAR COLONY, SIKANDAR KAMPOO, GWALIOR
                           (MADHYA PRADESH)

                                                                                        .....RESPONDENT


                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                              ORDER

The present petition, under Article 227 of the Constitution of India, has been filed by the petitioner being aggrieved by order dated 24.08.2023 passed by learned Additional Principle Judge, Family Court, Gwalior; whereby, an application under Order 7 Rule 14(3) read with Section 151 of CPC, read with Section 10 of the Family Court Act and another application under Section 65 of the Evidence Act read with Sections 10 & 14 of the Family Court Act were rejected holding that since the application under Section 13 of the Hindu Marriage Act has been filed in the year 2016 and the said documents though

stated to be relevant for due consideration of the case were not filed alongwith the plaint and even there was no explanation as to why they were not filed previously and it appeared to the Court that for the purpose of delaying the evidence, these applications have been filed and with regard to the application treating the said documents as secondary evidence was concerned, it was rejected and since the application under Order 7 Rule 14(3) of CPC was rejected, it had no relevancy.

FACTS

2. Short facts of the case are that between the parties, a suit for divorce under Section 13 of the Hindu Marriage Act was filed in the year 2016 before

the Family Court, Gwalior, which was registered as Case No.443-A of 2016. At the stage of plaintiff's evidence, an application under Order 7 Rule 14(3) of CPC was moved for production of certain documents on which, the present petitioner/plaintiff wants to rely and since some of the documents were photocopies/copies of originals, an application under Section 65 of the Evidence Act was filed for treating them to be secondary evidence, as the original document was burnt in the office of the counsel on 08.03.2022.

3. In reply, the prayer made by counsel for the petitioner/plaintiff was opposed on the ground that whenever the matter was listed for evidence, some or the other applications have been filed by the petitioner/plaintiff just to linger on the matter, therefore, the application doesn't deserve to be allowed and thus was prayed that the said applications be rejected.

4. Learned Trial Court, after considering the averments of the parties and hearing the parties, rejected both the applications vide impugned order dated 24.08.2023. The application under Order 7 Rule 14(3) of CPC was rejected on

the ground that no explanation has been afforded on behalf of the petitioner/plaintiff, as to why those documents were not submitted at earlier point of time and it appears that just to linger on the matter, the said applications were moved. Likewise, the application under Section 65 of the Evidence Act was rejected on the ground that since the application under Order 7 Rule 14(3) CPC has been rejected, there is no point in considering the said application, as the documents which were sought to be brought on record by the said application has already been rejected. Aggrieved by the aforesaid, the present petition has been filed.

ARGUMENTS

5. Learned counsel for the petitioner has vehemently argued that the learned Trial Court without considering the documents which were placed by the petitioner/plaintiff to be taken on record for adjudication of the matter, had rejected the application which is per se illegal.

6. It was further argued that though plausible explanation was afforded by the petitioner/plaintiff for not bringing those documents at earlier point of time but without considering the aforesaid explanation, the said application has been rejected, which is per se illegal.

7. It was further argued that in para 3 of the application, it was specifically mentioned that certain documents which were part of the record are

the Court proceedings and the others were acquired under the Right to Information Act and were not available with the petitioner/plaintiff at the time of the filing of the suit and since those documents were relevant for the purpose of determining the controversy between the parties, the same were required to be taken on record.

8. It was further argued that the photocopies/copies of the originals

which were sought to be brought on record and which were prayed that they may be taken as secondary evidence on record, due to the fact that the original of the said documents were burnt in the office of the counsel on 08.03.2022, therefore, the originals were not available with the petitioner/plaintiff and it was stated on affidavit that these are the copies procured form the original which fulfills the criteria of Section 63 of the Indian Evidence Act, but learned Trial Court ignoring this aspect without assigning any reason, rejected the said application.

9. On the basis of the aforesaid arguments, it was prayed that the present petition be allowed and the order dated 24.08.2023 be set aside.

10. None for the respondent even after service of notice.

11. Heard counsel for the petitioner and perused the record. DISCUSSION

12. In the present case, the petitioner/plaintiff had filed certain copies of the documents alongwith the application under Order 7 Rule 14(3) of CPC which as per the application were not available with the petitioner/plaintiff at the time of the filing of the suit, as they were the documents of the Court proceedings as well as the documents obtained under the Right to Information Act after filing of the suit.

13. Further it is also seen that there is one document which is of the year 2015 but in that regard, the counsel for the petitioner/plaintiff has submitted that since the original was not available with the petitioner at the time of the filing of the suit, the same could not be produced and since the originals were in not in possession of the petitioner/plaintiff, therefor, he was unable to produce the same at the time of filing of the suit. Out of 22 documents which have been

sought to be brought on record, 16 documents are either the Court's proceedings or the documents obtained under the Right to Information Act. Though the relevancy of the said documents are not discussed by the learned Trial Court but since many of the documents are either of the year 2016 or onwards cannot be said that those documents have been submitted just to fill up the lacuna. Some of the documents which are of the year 2015 had been received after filing of the suit for divorce, therefore, for them also it cannot be said that they have been filed just to fill up the lacuna.

14. So far as the documents which were available in original alongwith the petitioner and were prior to that of the suit, at the most can be said that those documents were available with the petitioner but were not filed alongwith the plaint and in regard to those documents, it can be said that the learned Trial Court was right in holding that no explanation has been afforded for not filing of those documents at the time of the filing of the suit; thus this Court so far as the application under Order 7 Rule 14 (3) of CPC is concerned, finds that the order suffers from patent illegality.

15. This Court in the matter of Smt. Kamlabai & Another vs. Ghanshyam Shrotiya & Others [Writ Petition No.7864 of 2014, decided on 08.09.2015] has held that "now such document may be received in evidence with the leave of the Court, which the Court shall grant in genuine cases. Thus, if any document or a copy thereof could not be filed with the plaint, it may be received in evidence with the leave of the Court, which the Court shall grant in genuine cases. Rigour of the Rule does not apply to the documents which are sought to be adduced or one of the corroborative evidences in support of the claim made in the plaint. Order 7 Rule 14(3) of CPC enables the Court to receive the documents which are not filed along with the

plaint in genuine cases. Obviously the object of this provision is to avoid delay."

16. In view of the said judgment, it is clear that when documents are necessary, the application may be allowed even if it is belatedly filed. The genuineness of documents etc. cannot be gone into at this stage.

17. The Hon'ble Supreme Court in the matter of Smt. Rani Kusum vs Smt. Kanchan Devi And Others passed in Civil Appeal No.5066 of 2005, decided on 16 August, 2005 has held that "no person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. [See: Blyth v. Blyth reported in 1966 (1) All E.R. 524 (HL)]. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the

recipient of justice is not to be followed. [See:- Shreenath and Anr. v. Rajesh and Ors. reported in AIR 1998 SC 1827]. Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.

18. This Court, in the light of aforesaid judgments, holds that the present application under Order 7 Rule 14(3) of CPC deserves to be and is hereby allowed.

19. As the respondent/defendant shall have sufficient opportunity to file application before the learned Trial Court for further cross-examination of the

witnesses of the aforesaid documents and shall have also opportunity to adduce evidence in rebuttal at the time of hearing the witnesses, therefore, no prejudice or grave injustice would be caused to the respondents. Accordingly, the present application is allowed.

20. So far rejection of the application under Section 65 of the Evidence Act is concerned, since there is no discussion on the aforesaid aspect and this Court has allowed the documents to be taken record, the matter required to be relegated back to the learned Trial Court for fresh consideration of the application under Section 65 of the Evidence Act. Let the aforesaid application be considered and decided as per law.

21. Since it is an old matter, this Court deems it fit to direct the learned Trial Court to expedite the hearing and shall decide the same as expeditiously as possible preferably within a period of one year from the date of receipt of the certified copy of this order in accordance with law.

22. With the aforesaid observations and directions, the present petition is disposed of finally in above terms.

(MILIND RAMESH PHADKE) JUDGE pwn*