Rajasthan High Court
Anil Kumar Purohit S/O Late Sh. Radha ... vs Ashok Kumar Purohit S/O Late Sh. Radha ... on 19 September, 2024
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2024:RJ-JP:39653]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 12288/2022
Anil Kumar Purohit S/o Late Sh. Radha Kishan Purohit, Aged
About 62 Years, R/o 3/102, Jawahar Nagar, Jaipur (Raj.)
----Petitioner/ Defendant No.2
Versus
1. Ashok Kumar Purohit S/o Late Sh. Radha Kishan Purohit,
Aged About 66 Years, R/o 3/102, Jawahar Nagar, Jaipur,
Presently Residing At B-36, Anita Colony, Bajaj Nagar
Jaipur (Raj.) (As Per Title Of Plaint)
2. Radha Kishan (Radha Krishan) Purohit S/o Late Sh. Bhura
Maj Ji Purohit, Aged About 84 Years, R/o 3/102, Jawahar
Nagar, Jaipur, Presently Residing At B-36, Anita Colony,
Bajaj Nagar Jaipur (Raj.) (Deceased)- Represented By-
2/1 Smt. Shanti Devi Purohit W/o Late Sh. Radha Kishan
Purohit, R/o 3/102, Jawahar Nagar, Jaipur, Presently
Residing At B-36, Anita Colony, Bajaj Nagar Jaipur (Raj.)
3. Smt. Asha Purohit W/o Sh. Satya Narayan Purohit D/o
Late Sh. Radha Kishan Purohit, R/o 10/897, Malviya
Nagar, Jaipur.
4. Aruna Pareek W/o Sh. Ashok Pareek D/o Sh. Radha
Kishan Purohit, R/o F-12, Vinay Path, Todarmal Marg,
Banipark, Jaipur (Raj.)
----Respondents
For Petitioner(s) : Mr. L. L. Gupta,
Mr. Lakshya Kumar Sharma
For Respondent(s) : Mr. R. K. Mathur Sr. Adv. asst. by
Mr. Ayush Goyal,
Mr. Kapil Gupta &
Mr. Mohd. Adil
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
19/09/2024
REPORTABLE
1. With the consent of learned counsel for both parties, the writ
petition has been heard finally on merits.
2. Instant writ petition under Article 227 of the Constitution of
India has been filed by the petitioner-defendant No.2, feeling
[2024:RJ-JP:39653] (2 of 14) [CW-12288/2022]
aggrieved by the order dated 09.05.2022 passed by the Additional
District Judge No.4, Jaipur District in Civil Suit No.69/2018,
dismissing his application under Order VIII Rule 1(3) CPC and
declining to take the original bank passbooks and bank statement
of defendant No.1- Radha Kishan Purohit (now deceased) and of
defendant No.2- Anil Kumar Purohit.
3. Brief facts of the case as revealed from the record are that
the respondent No.1-plaintiff has filed a civil suit for partition and
permanent injunction in respect of three immovable properties
described in Para No.2 of the plaint. The suit has been resisted by
the petitioner-defendant No.2 and in the written statements, a
plea has been raised that an another immovable property Plot No.
B-36, Anita Colony, Bajaj Nagar, Jaipur is also joint property of
family, which has not been included by the plaintiff in the suit of
partition and a counter claim has made in the written statement.
In respect of this property, the defendant No.2 has pleaded that
the property was purchased in the name of plaintiff and he was
funded by father- defendant No.1-Radha Kishan Purohit (now
deceased) as also by defendant No.2. As per the respective
pleadings of parties, issues have been framed and suit is at the
stage of recording plaintiff's evidence.
It is noteworthy that after filing of the present civil suit, on
defendant No.1-Radha Kishan Purohit, who is father of plaintiff-
defendant No.2, has passed away on 15.02.2019 and in his place,
his wife i.e. the mother of parties has been substituted as
defendant No.1/1. It is to be noted that other legal
representatives of deceased-defendant No.1, who are two sons
and two daughters are already party in the present civil suit.
[2024:RJ-JP:39653] (3 of 14) [CW-12288/2022]
4. At the stage of plaintiff's evidence, the defendant No.2
moved an application dated 30.11.2021, seeking leave of Court to
produce the original passbook and bank statement of Khata
No.7812 of Punjab National Bank, Jaipur belonging to father
defendant No.1-Radha Kishan Purohit and passbook of State Bank
of Bikaner & Jaipur and Bank of Rajasthan, belonging to defendant
No.2- Anil Kumar Purohit. In the application, defendant No.2
pleaded that these passbooks are relevant to the issue involved in
the present civil suit with counter claim to show that the property
which was purchased in the name of plaintiff, was funded by the
plaintiff's father and brother through bank transactions. Hence, in
order to show such bank transactions, these passbooks were
sought to be produced.
5. The application was resisted by the plaintiff and reply was
filed stating inter alia that since the passbook of father bears
cutting and overwriting at several places as much as same has
been produced after his death, hence, such passbook and bank
statement are not authentic and genuine document, hence, cannot
be taken on record. In addition, objection was also raised that
there is no reason for not producing the passbooks along with the
written statement. Hence, it was prayed that application be
dismissed.
6. Learned trial Court, after pondering over the nature of
documents which are bank passbooks and bank statement of
defendants No.1 & 2, observed in the impugned order that entries
in the passbook bear cutting, overwriting and interpolation at
several places as much as there is difference in the entries of
handwritten passbook and the bank statement of defendant No.1,
[2024:RJ-JP:39653] (4 of 14) [CW-12288/2022]
therefore, the passbook does not seem to be an authentic and
genuine document. Further, the trial Court observed that
defendant has not assigned any sufficient reason for not producing
these passbooks with the written statement. Accordingly, with
such observations, the trial Court rejected the application of
defendant No.2 vide order dated 09.05.2022, which has been
impugned herein by means of filing instant writ petition.
7. Learned counsel for petitioner contends that at the stage of
seeking leave to produce documents by defendants under Order
VIII Rule 1(3) CPC, the Court is not obliged to exercise the
jurisdiction to examine the genuineness, evidential value and
authenticity of the document, sought to be produced. He submits
that the leave may be granted by the Court, subject to satisfaction
about the non-production of document at the time of filing of the
written statement and considering the sufficiency of reasons of
delay. But in the instant case, the trial Court has exceeded its
jurisdiction and declined to take documents of bank passbooks
and statements of defendants on record, recording a finding that
passbook of defendant No.1 is ungenuine as much as its
authenticity also seems suspicious. Learned counsel submits that
as far as delay is concerned, the suit is at initial stage of recording
plaintiff's evidence and the delay may be compensated by way of
awarding appropriate cost to the plaintiff. Hence, his prayer is that
impugned order be set aside and the documents be allowed to be
produced on record.
To buttress his contention, learned counsel has relied upon
the judgment of Rajasthan High Court at Principal seat Jodhpur in
case of Lalit Swami Vs. Union of India [2017 (1) WLC (Raj.)
[2024:RJ-JP:39653] (5 of 14) [CW-12288/2022]
UC 783] & judgment of the Hon'ble Supreme Court in case of
Sugandhi Vs. P. Rajkumar [AIR (2020) SC 5486].
8. Per contra, learned Senior Counsel appearing on behalf of
respondent-plaintiff has vehemently opposed the writ petition and
while supporting the impugned order, has argued that the trial
Court has exercised its discretion within its jurisdiction and has
rightly rejected the application under Order VIII Rule 1(3) CPC. It
has been submitted that the property- Plot No. B-36, Anita Colony,
Bajaj Nagar, Jaipur, is the self purchased property of plaintiff and
the documents of passbooks and bank statement, on which
defendant No.2 wants to rely upon, on prima facie perusal, shows
that there is cutting, overwriting and interpolation in the entries at
several places as much as the defendant No.2 has produced the
passbook of his father defendant No.1, after his death, that too
without assigning any sufficient reasons for non-production of the
same along with written statement, therefore, the order impugned
does not warrant any interference by the High Court. The trial
Court has declined to take the documents on record in its judicious
exercise of discretion which does not warrant interference by the
High Court, in exercise of jurisdiction under Article 227 of the
Constitution of India, hence, writ petition be dismissed.
Learned Senior Counsel has referred the judgment passed by
the Coordinate Bench of this Court in case of Kalyan Sahai Vs.
Mangi Lal Selibet Disciple (Bramchari Chela) [2018 (1) WLC
(Raj.) UC 122], wherein in Para No.4, it was held as under:
"4. And indeed, it is not for this court in the exercise of
its power of superintendence under Article 227 of the
Constitution of India to interfere with the judicious discretion
of the courts below exercised in the course of trial. That has
so been exercised in the facts of the case at hand. Such
[2024:RJ-JP:39653] (6 of 14) [CW-12288/2022]
jurisdiction can be invoked only qua the orders passed by the
courts below which are shockingly perverse, or vitiated by
misdirection in law. None of the two situations obtain in the
present case."
Reliance has also been placed on a judgment passed in case
of Smt. Kusum Babbar Vs. Additional District Judge (Fast
Track) No.1, Jaipur [2013 WLC (Raj.) UC 258], wherein in
Para No.7, it was held as under:
"7. In my considered opinion, the leave of the court
under Order 8 Rule 1-A (3) CPC is discretionary and the
discretion has to be exercised on the facts and circumstances
obtaining in the case. Routine grant of leave under Order 8
Rule 1-A (3) CPC is not countenanced in law. In my
considered opinion, in the facts of the case no reason was/ is
set up by the defendant for belated filing the photographs in
the year 2012 pertaining to the disputed property for which
the suit was filed in the year 2005. Aside of aforesaid, as
found by the trial court and submitted by counsel for the
plaintiff there was no material before the trial court to hold
that the photographs in issue related to property in dispute.
Neither date nor time of taking of the said photographs for
that matter or the name and signature of the Photographer
was appended on the photographs. It is also not disputed
that said photographs were sought to be produced
subsequent to closure of evidence of plaintiff and at the time
of commencement of evidence of the defendant. The
dominant purpose of Order 8 Rule 1-A CPC and requirement
of filing of document along with the pleadings of parties is to
expedite adjudication of the dispute and have a crystalised
dispute before the trial court at the earliest and cannot be
overlooked by taking an overtly liberal view of the provision
of Order 8 Rule 1-A (3) CPC. The discretion of the trial court
as evident in the impugned order cannot be overturned by
this court merely being the superior court. The Hon'ble
Supreme Court in case of Subodh Kumar Gupta Vs. Alpana
Gupta [(2005) 11 SCC 578] has held that discretionary
orders of the trial court in the course of proceeding of a case
ought not to be interfered with where such orders are
supported by good grounds and reasons. This situation
obtains in the present case."
9. Heard. Considered.
10. The clinching and short issue, which has emerged is, as to
whether the impugned order whereby the trial Court declined to
[2024:RJ-JP:39653] (7 of 14) [CW-12288/2022]
grant leave to the defendant to produce documents in question
(bank passbooks and bank statement of defendants) on record in
the present civil suit for partition and permanent injunction at the
stage of plaintiff's evidence, requires interference by the High
Court in exercise of jurisdiction under Article 227 of the
Constitution of India?
11. In this respect, it is not in dispute that the present civil suit
for partition is at the initial stage of recording plaintiff's evidence
and at this stage, defendant filed application under Order VIII Rule
1A(3) CPC, seeking leave of the Court to receive bank passbooks
and bank statement of defendants No.1 & 2 in evidence. The trial
Court has dismissed the application, recording a finding that
authenticity and genuineness of the bank passbook and bank
statement, pertaining to defendant No.1 (now deceased), seems
to be suspicious and further, no sound reason has been assigned
by the defendant, for not producing these documents with the
written statement.
12. There is no quarrel about the legal proposition that statutory
provision of Order VIII Rule 1A(3) CPC provides a second
opportunity to the defendant to produce documents, which ought
to have been produced in the Court along with written statement,
subject to seeking leave of the Court. By virtue of such provision
of law, discretionary power and jurisdiction rest and vest with the
Court to grant or refuse such leave, though there is no straight
jacket formula for exercising such discretion by the Court.
Nevertheless, through a series of judgments, judicial precedent
has come to fore that the discretion must be exercised by the
Court judiciously and within the parameters of law and not
[2024:RJ-JP:39653] (8 of 14) [CW-12288/2022]
arbitrarily and capriciously. It is also established proposition of law
that such procedure of law should be applied in a manner to
advance substantial justice, since all the rules and procedure are
being made for administration of justice. The Court should
exercise its discretionary jurisdiction to render justice, keeping in
mind that the purpose of holding the trial of civil suit is giving
opportunity to parties to produce relevant evidence without delay
in order to arrive at truth by the Court. A pedantic and too
technical view, which may scuttle the valuable right of any of the
party to produce evidence, should be avoided.
13. A cumulative perusal of the provisions of Order VIII Rule
1A(3) read with Order XIII Rule 1 CPC, it may be held that the
object of such provisions, is to prevent the belated production of
document(s), so that there may not be delay in trial and it may
not work injustice to the other side. Document(s) on which
respective parties want to rely upon should be produced along
with the pleadings in original before settlement of issues.
Nevertheless, the legislature has left the matter to the discretion
of Court, relating to questioning the document(s) at the belated
stage and the Court may take its decision within discretionary
powers, considering the facts and circumstances of each case. The
expectation from the Court is that the discretion should be
exercised judiciously, without extending extraneous way to the
technicalities or procedural flaw.
14. In support of such view, beneficial reference of the judgment
of the Hon'ble Supreme Court in case of Sughandi (Supra) would
be suffice, where while dealing with the provision of Order VIII
[2024:RJ-JP:39653] (9 of 14) [CW-12288/2022]
Rule 1A(3) CPC, following observations/ opinion were made by the
Apex court:-
"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 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 subrule (3)."
15. This Court is of the view that there are multiple factors,
which are required to be considered by the Court at the time of
exercising its discretionary jurisdiction, to grant or refuse the
leave to produce documents by either of the parties at later stage
of civil proceedings, if the stage to produce documents has
passed. Few of the factors may be categorized hereunder:
(i) Stage of proceedings;
(ii) Reason for not producing documents at earlier stage;
(iii) Nature and relevancy of documents;
(iv) Conduct of party and delay;
(v) Prejudice likely to be caused to adversary parties;
(vi) Genuineness of the documents in first decipher.
[2024:RJ-JP:39653] (10 of 14) [CW-12288/2022]
These factors have been referred just for illustration and not
as an exhaustive list, since there can be other factors also
depending on facts of any particular case. It is true that there is
no straight jacket formula, but satisfaction of the Court is must.
As far as factors like admissibility, reliability and evidential
value of document or the objection that document is forged,
concocted or unauthenticated are concerned, same can ordinarily
be considered and decided at the appropriate stage of civil
proceedings and not at the stage of exercising the jurisdiction by
the Court, to grant or refuse the leave. At this stage, no final
finding should ordinarily be passed by the Court. Although, it is
equally true that if the document, at the first decipher, appears to
be a fake document or does not inspire confidence of the Court,
leave may be refused by the Court, disallowing to take such
document on record, but such discretion must be exercised with
all care and circumspection, without entering into the issues,
which are required to be gone into during course of trial, including
to decide the probative and evidential value of document or
admissibility/ reliability of the document in evidence etc. The thin
line in this respect is to be well understood. In this regard, a
reference of a judgment, delivered by the Coordinate Bench in
case of Lalit Swami (Supra) may be given, wherein in Para
No.10, it was observed that "At the stage of deciding an
application under Order VII Rule 14(3) CPC, the Court is not
required to see whether the document is forged, concocted or
unauthorised. The evidenciary value or reliability of the document
are required to be seent at the time of marking exhibit and/ or at
[2024:RJ-JP:39653] (11 of 14) [CW-12288/2022]
the time of leading evidence. By way of the order impugned, the
Court below ejected the application filed by the plaintiff, for the
reasons which are neither relevant nor germane, for deciding the
same."
16. Coming to facts of the case in hand, the trial Court swayed
away by cuttings and overwriting in the handwritten entries of the
bank passbook of defendant No.1. In this respect, contention of
learned counsel for defendant is that the passbook of defendant
No.1 is original and relevant entries, on which defendant wants to
rely, do not bear any cuttings or overwriting or interpolation and if
any, same are duly initialed by the concerned bank official. In the
opinion of this Court, this is a matter of evidence, which can better
be examined and decided by the trial Court after taking the
documents of bank passbook and bank statements on record and
allowing parties to adduce their evidence thereupon. The plaintiff,
obviously would get an opportunity to cross-examine the
defendants on the documents, including the entries of bank
passbook of defendant No.1, on which defendant No.2 places
reliance. At the stage of considering application under Order VIII
Rule 1A(3) CPC, the trial Court has exceeded its jurisdiction to
deny the leave to produce these documents on record by the
defendant, recording a finding that the authenticity and
genuineness of the documents, seem to be suspicious. The trial
Court failed to appreciate that though it is case of plaintiff that the
property bearing Plot No. B-36, Anita Colony, Bajaj Nagar, Jaipur,
was purchased by him with his own fund and by taking loan from
the department, yet in the written statement of defendants, it has
[2024:RJ-JP:39653] (12 of 14) [CW-12288/2022]
been pleaded that fund to purchase the property bearing Plot No.
B-36, Anita Colony, Bajaj Nagar, Jaipur, was transferred by
defendants No. 1 & 2 in the bank account of plaintiff, through
bank transactions and in support of such pleadings, defendant
wants to produce bank passbook and bank statements of
defendants No.1 & 2. In such view, documents may not be said to
be irrelevant and their authenticity/ genuineness and evidential
value are subject to the decision of the trial Court, after analyzing
of evidence of parties adduced thereupon. It is to be noted that
there is no objection in respect of bank passbook of defendant
No.2. The trial Court has committed jurisdictional error in not
appreciating the other relevant factors, which permit to exercise
jurisdiction in favour of defendant No.2 to take documents of bank
passbooks and bank statement of defendant No.1 & 2 on record,
subject to deciding their genuineness/ probative evidential value
at the time of final decision, after giving opportunity to both
parties to adduce their evidence and after analyzing all the
evidence, so come on record.
17. As far as assigning no sound reason for non-production of
the documents along with written statement is concerned,
documents have been produced at the stage of plaintiff's evidence
and considering the nature of present suit for partition as also
relevancy of such documents in context to pleadings of the
defendants' written statement, for the delay in filing documents by
the defendant, interest of justice would be served by imposing
costs on the defendants, to compensate the plaintiff. This Court
finds that taking into consideration the other factors and attaining
[2024:RJ-JP:39653] (13 of 14) [CW-12288/2022]
circumstances, the pragmatic and lenient view ought to have been
taken by the trial Court, exercising its jurisdiction in a judicious
manner to impart justice and for delay, plaintiff could have been
compensated by awarding costs.
18. Thus, this Court is of considered opinion that the trial Court
has failed to exercise its discretionary jurisdiction in true
perspective and in judicious manner as much as declining to grant
leave to defendant to produce documents in question, would cause
greater hardship to the defendant and may result into injustice,
whereas plaintiff may be compensated by awarding costs for delay
and would face no prejudice, since he will get full opportunity to
cross-examine the defendants on these documents. The suit is
undeniably at the stage of recording plaintiff's evidence. For such
reasons, the impugned order warrants interference by the High
Court in exercise of its jurisdiction under Article 227 of the
Constitution of India.
19. As far as judgment referred by learned Senior Counsel
appearing for respondents in case of Kalyan Sahai (Supra) is
concerned. This Court held that unless the order impugned vitiates
by misdirection in law, same should not be interfered with by the
High Court under Article 227 of the Constitution of India, but this
Court finds that impugned order herein is contrary to the
established principles of law. In case of Smt. Kusum Babbar
(Supra), the photographs in question were not found in relation to
the property in dispute, hence denied to be taken on record but in
the present case, documents are related to the controversy
between parties. Thus, both the judgments do not render any
[2024:RJ-JP:39653] (14 of 14) [CW-12288/2022]
support to the plaintiff for sustenance of the impugned order in
law.
20. As a final result, the present writ petition succeeds and is
hereby allowed. The impugned order dated 09.05.2022 is set
aside. The application dated 30.11.2021 filed by defendant No.2 is
allowed and documents of bank passbooks and bank statement,
relating to defendants No.1 and 2, are allowed to be taken on
record by the Trial Court.
However, it is made clear that plaintiff shall be at liberty to
challenge the genuineness, evidential value and authenticity of the
documents during course of trial, which would be considered and
decided by the trial Court in accordance with, without being
prejudiced by any of the findings/ observations of this Court
recorded hereinabove.
21. All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J
Sachin/39
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