Nem Prakash Khandaka And Anr vs Municipal Corporation And Anr
2022 Latest Caselaw 543 Raj/2

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 16205/2016

1.        Nem Prakash Khandaka Son Of Late Shri Sardarmal
          Khandaka,     D-192,       Jagdish        Marg,      Bani    Park,    Jaipur
          Rajasthan
2.        Sant   Kumar      Khandaka          Son      Of    Shri     Nem      Prakash
          Khandaka,     D-192,       Jagdish        Marg,      Bani    Park,    Jaipur
          Rajasthan
                                                                      ----Petitioners
                                      Versus
1.        Municipal Corporation, Jaipur Through Its Chief Executive
          Officer, Office Of Mc Jaipur, Deendayal Upadhyay Bhawan,
          Lalkothi Scheme, Jaipur Rajasthan
2.        Shri Harikishan Ganwani Son Of Shri Aasandas Ganwani,
          Shop No. 8, Dara Market, Haldion Ka Rasta, Jaipur
          Rajasthan
                                                                    ----Respondents

For Petitioner(s) : Mr. Saransh Saini, Adv.

For Respondent(s)           :     Mr. O.P. Mishra, Adv.



                 HON'BLE MR. JUSTICE SAMEER JAIN

                            Judgment / Order

Reserved on 04/01/2022
Pronounced on 21/01/2022

1. Instant writ petition under Article 227 of the Constitution of

India has been filed by the petitioners against the impugned order

dated 06/10/2016 passed by the learned Additional Civil Judge

(Junior Division) & Metropolitan Magistrate No.13, Jaipur

Metropolitan, Jaipur (hereinafter referred as 'trial court') in

pending Civil Suit No.360/2015 allowing the application filed by

the respondents under Order 8 Rule 1 read with Section 151 CPC

for taking the documents with cost of Rs.500/-.

(2 of 7) [CW-16205/2016]

2. As per claim of the petitioners, there was no necessity nor

relevancy to take on record the said documents constituting

certified copy of FIR No.327/2009 and certified copy of the charge

sheet No.120/2011 and the impugned order passed is illegal and

perverse.

3. In the said writ petition, vide order dated 29/11/2016, an

interim order of protection was granted and proceedings before

the learned trial court were stayed.

4. In Asian Resurfacing Of Road Agency Private Limited &

Anr. Vs. Cental Bureau of Investigation: (2018) 16 SCC 299,

it has been held that this Court under Article 227 of the

Constitution of India should be slow in granting interim orders for

a period of more than six months and an attempt should be made

to adjudicate the matters at the earliest. The relevant para of the

said judgment is reproduced as under:-

"34. If contrary to the above law, at the stage of charge, the High Court adopts the approach of weighing probabilities and re-appreciate the material, it may be certainly a time consuming exercise. The legislative policy of expeditious final disposal of the trial is thus, hampered. Thus, even while reiterating the view that there is no bar to jurisdiction of the High Court to consider a challenge against an order of framing charge in exceptional situation for correcting a patent error of lack of jurisdiction, exercise of such jurisdiction has to be limited to rarest of rare cases. Even if a challenge to order framing charge is entertained, decision of such a petition should not be delayed. Though no mandatory time limit can be fixed, normally it should not exceed two-three months. If stay is granted, it should not normally be unconditional or of indefinite duration. Appropriate conditions may be imposed so that the party in whose favour stay is granted is accountable if court finally finds no merit in the matter and the other side suffers loss and injustice. To give effect to the legislative policy and the mandate of Article 21 for speedy justice

(3 of 7) [CW-16205/2016]

in criminal cases, if stay is granted, matter should be taken on day-to-day basis and concluded within two- three months. Where the matter remains pending for longer period, the order of stay will stand vacated on expiry of six months, unless extension is granted by a speaking order showing extraordinary situation where continuing stay was to be preferred to the final disposal of trial by the trial Court. This timeline is being fixed in view of the fact that such trials are expected to be concluded normally in one to two years."

5. In this background, with the consent of learned counsel for

both the parties, the present writ petition was heard for final

disposal.

6. Facts of the case, in brief, are that the petitioners preferred a

regular Civil Suit for permanent & mandatory injunction before the

learned trial court in the year 2007 stating therein that on

30/03/2006 they purchased an immovable property, situated at

Chokdi Ghat Darwaja, Rasta Mani Ram Ji Ki Kothi, Jaipur vide

registered sale deed from one Desh Deepak Khurana. It was

further stated that the respondent is having his shop which is

situated at northern side of the Haveli facing east side and further

that the shop of the respondents is shown by yellow colour in the

map annexed with the writ petition. It was also submitted that the

disputed property is a public way and further that the custodian of

the said property/land is Municipal Corporation, Jaipur and the

respondent made unauthorized construction over the public way.

The said claim of the petitioners was denied by the

respondents in written statement and the respondents sought

dismissal of the suit and denied any encroachment upon the public

way. On the basis of the pleadings of the parties, the learned trial

court framed issues in the matter.

(4 of 7) [CW-16205/2016]

7. The case and controversy in the present writ petition arose

when the respondents moved an application under Order 8 Rule 1

read with Section 151 CPC seeking production of two documents,

namely; FIR so registered at number 327/2009 dated 29/09/2009

and the Charge Sheet bearing no.120/2011 dated 24/07/2011.

8. In response to the said application, the petitioners filed reply

and strongly opposed the application.

9. The petitioners submitted that the learned trial court has

allowed the said application on cost of Rs.500/- even though the

respondents have filed to disclose reasons of delay.

10. In this background, the petitioners' counsel submitted that

the application moved by the respondents is not tenable under

Order 8 Rule 1 CPC wherein time limit to file reply is thirty days

from the date of service of summons and at best the same can be

extended for a period of another 90 days. The second submission

of the petitioners' counsel is that without amending the written

statement/pleading, the said documents cannot be taken on

record and thirdly, the present application has been filed merely to

delay the proceedings and the concerned FIR and charge-sheet

have no bearing on the case in hand and it is a settled law that

criminal proceedings cannot have a binding effect in the civil trial.

In support of his contentions, learned counsel for petitioners relied

upon a judgment of the Hon'ble Apex Court reported in 2016(1)

SCC 762, titled as K. Nanjappa Vs. R.A. Hameed wherein it

has been held that:

"evidence and finding recorded by criminal court in criminal case cannot be conclusive proof of existence of any fact in absence of independent finding recorded by civil court."

(5 of 7) [CW-16205/2016]

11. Per-contra, contention of respondents' counsel is that for the

reasons stated in the order impugned, the FIR as well as charge-

sheet are relevant documents and the trial being at preliminary

stage, no prejudice will be caused to the petitioners. The FIR and

charge-sheet are public documents in nature. The same can be

objected to at the stage of arguments. The further contention of

the respondents' counsel was that to meet out the delay, the

learned trial court has imposed cost of Rs.500/- upon the

respondents.

12. This Court has considered the rival contentions, scanned

records of the writ petition and also considered the judgments

cited at bar.

13. At the outset, it is submitted that against the impugned

order dated 06/10/2016, the present writ petition was preferred in

which coordinate Bench of this Court vide order dated 29/11/2006

stayed further proceedings before the learned trial court.

14. In the light of the Apex Court Judgment in Asian

Resurfacing Of Road Agency Private Limited & Anr. (supra),

as the trial was at halt and standstill, the matter was taken up for

final disposal by this court with the consent of learned counsels for

both the parties.

15. On perusal of the provisions of Order 8 of CPC, it is analyzed

that the same are not mandatory but directory in nature. It is time

and again held by the Hon'ble Apex Court that the words under

Order 8 Rule 1 of CPC "shall not be later than 90 days" do not

take away power of the Court to accept evidences, documents,

written statements at a later stage if their relevancy for

consideration of a case is desired in the interest of justice.

(6 of 7) [CW-16205/2016]

16. The nature of the documents in the present matter is of

public document i.e. FIR and Charge-Sheet which are connected to

the case. The learned trial court has given adequate reasons in its

order impugned which are reproduced below:-

^^nkSjkus cgl [email protected] la-2 us vius izkFkZuk i= esa vafdr rF;ksa dks nksgjkrs gq, ewy :i ls rdZ fn;k fd mlds }kjk ftu nLrkostksa dks fjdksMZ ij fy;s tkus gsrq ;g izkFkZuk i= is'k fd;k gS os mlds }kjk oknhx.k ds fo:) ntZ djok;h xbZ izFke lwpuk fjiksVZ o mlesa tkjh vkjksi i= dh izekf.kr izfr;ka gS tks izdj.k ds fuLrkj.k gsrq vko';d nLrkost gSA vr% mUgsa fjdksMZ ij fy;k tk,A tcfd [email protected] dh vksj ls nkSjkus cgl rdZ jgk gS fd [email protected] la-2 us izdj.k esa oknh lk{; ls ftjg djus esa foyac djus ds mn~ns'; ls ;g izkFkZuk i= is'k fd;k gS o mDr nLrkost izdj.k ds fuLrkj.k gsrq lqlaxr ugha gSA vr% izkFkZuk i= [kkfjt fd;s tkus dh izkFkZuk dhA mHk; i{kksa dh mijksDr cgl ds lanHkZ esa izkFkZuk i= lfgr i=koyh dk voyksdu fd;k x;k o layXu nLrkostkr dk Hkh voyksdu fd;k x;kA ftuds voyksdu ls mDr nLrkost izdj.k esa fookfnr lEifÙ[email protected] fook| fcUnq ls lacaf/kr gksuk izrhr gksrs gS ftudks fjdksMZ ij fy;k tkuk izdj.k ds U;k;iw.kZ fuLrkj.k gsrq mfpr izrhr gksrk gSA izdj.k vHkh izkjfEHkd LVst ij gS rFkk mDr nLrkostksa ds laca/k esa oknh dks fdlh izdkj dh izT;wfM'k dkfjr ugha gksxh o oknh dks mDr nLrkostksa ds lac/k es ftjg dk volj Hkh izkIr gksxkA ysfdu mDr nLrkostksa ds voyksdu ls ;g Hkh izdV gksrk gS fd [email protected] la-2 dks mDr nLrkost brus foyac ls is'k djus ds laca/k esa dksbZ ;qfDr;qDr dkj.k u rks izkFkZuk i= o uk gh nkSjkus cgl izdV ugha fd;k x;k gSA vr% izLrkfor nLrkost izLrqr djus esa g, foyac dks ns[krs gq, [email protected] la- 2 dk izkFkZuk i= [email protected] : dksLV ij Lohdkj fd;k tkuk U;k;ksfpr izrhr gksrk gSA vr% mijksDr foospukuqlkj [email protected] la-2 }kjk izLrqr izkFkZuk i= vUrxZr vkns'k&8 fu;e 1¼3½ o lifBr /kkjk&151 lh-ih-lh- dk [email protected] :i;s ¼v{kjs ikap lkS :i;s½ dksLV ij Lohdkj fd;k tkdj izkFkZuk i= ds lkFk izLrqr

(7 of 7) [CW-16205/2016]

nLrkostksa dks fjdksMZ ij fy;s tkus dh vuqefr iznku dh tkrh gSA**

17. In the supervisory jurisdiction under Article 227 of the

Constitution of India, this Court has to analyze that whether the

impugned order in question is suffering from vice of arbitrariness,

illegality or there is any error apparent on the face of record or

not. In the present matter, the learned trial court has given

reasoned order for the delay by imposing cost and has held that

the matter is at preliminary stage. The petitioners will have

adequate opportunity to rebut the said documents at the stage of

arguments and if any legal argument with respect to the same has

to be raised, the same can be raised at any stage by the

petitioners.

18. The judgment relied upon by learned counsel for the

petitioners in K. Nanjappa (supra) is pertaining to findings of

the Court given in a criminal case which cannot be held to be

conclusive in civil matters. In the present matter, the said

judgment is not applicable as the judgment which has been relied

upon is only a first information report & charge-sheet and the

same are not of any binding precedence but are in the nature of

preliminary allegations.

19. In the light of above, this Court is of the view that the order

impugned dated 06/10/2016 needs no interference.

20. As a result, the writ petition is dismissed. The interim order

stands vacated. All pending applications stand disposed of.

(SAMEER JAIN),J

Raghu/

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