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Bhikari Charan Patra Vs. Basanti Bewa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 32 of 1983
Judge
Reported inAIR1985Ori49; 58(1984)CLT145
ActsCode of Civil Procedure (CPC) , 1908 - Order 13, Rules 1 and 2
AppellantBhikari Charan Patra
RespondentBasanti Bewa and ors.
Appellant AdvocateR.K. Mohapatra, ;A.N. Mishra, ;U.C. Panda and ;B. Routray, Advs.
Respondent AdvocateG. Rath, ;N.C. Panigrahi and ;B.K. Nayak, Advs.
DispositionRevision allowed
Cases ReferredIn Gopika Raman Roy v. Atal Singh
Excerpt:
.....invoked mala fide, where the move is to cause delay or is vexatious, the cause shown cannot be held to be good cause shown to the satisfaction of the court. moreover the other side can be given an opportunity to meet the situation the learned trial judge therefore failed to exercise jurisdiction vested in him with material irregularity in rejecting the application i would therefore, set aside his order......to suit the purpose. moreover the other side can be given an opportunity to meet the situation the learned trial judge therefore failed to exercise jurisdiction vested in him with material irregularity in rejecting the application i would therefore, set aside his order.13. in view of the situation that would emerge, necessitating affording an opportunity to defendant 1 to adduce further evidence, the plaintiffs shall have an opportunity to adduce further evidence, if they so choose and shall have an opportunity to cross-examine the witnesses examined on behalf of the defendants. the learned trial judge would grant the opportunity accordingly and also allow the defendant 1 to prove the document in question. in sum, both the parties should be given opportunity for a fair trial defendant.....
Judgment:
ORDER

R.C. Patnaik, J.

1. This revision has been occasioned by the rejection of an application filed by the defendant 1 petitioner for acceptance of a document during recording of the evidence for defendant 1.

2. Opposite parties Nos. 1 and 2 filed Original Suit No 145 of 1979 for deletion of the entry against plot No. 1955 in the recorded rights that defendant 1 was in possession on the basis of an oral sale in 1966 and for correction thereof by recording the names of plaintiff 1 and Radhakanta Math, pro forma defendant 2, and for permanent injunction restraining defendant 1 from interfering with their possession.

3. Plaintiff 1 is the widow of one Satrughna Patra and plaintiff 2 is her son Satrughna purchased the disputed land by a registered sale deed Dt. 18-2-58. He possessed the same until his death in 1959. Thereafter the plaintiffs were in enjoyment During the Hal Settlement operations defendant 1 manipulated to obtain a note that he was in possession on the basis of an oral sale in 1966. The plaintiffs alleged that the north half belonged to them and the southern half belonged to pro forma defendant 2.

4. The petitioner controverting the allegations averred that he was the elder brother of Satrughna. In 1954 there was a partition between Satrughna and him The disputed plot belonged to one Kali Charan Misra and Radhakanta Math. The petitioner had amalgamated the same with his own contiguous land and had put a fence around Satrughna wanted to purchase the land but he could not succeed due to the objection and resistance of the petitioner. He further obtained a nominal and collusive sale deed from Kalicharan. The Math being unsuccessful in evicting the defendant 1 entered into an arrangement with him and acknowledged his title. After death of Satrughna, disputes arose between the plaintiffs and him. To patch up, he paid the plaintiffs Rs. 200/- He claimed prescriptive title. There was a Panchayati and the plaintiff 2 admitted before the members to have received Rs. 150/-.

5. In course of the trial plaintiff 2 was examined as P. W. 4. During his cross-examination defendant 1 filed four documents and a petition for acceptance with reasons for the late filing One of the documents was a joint petition dt. 5-3-75 filed before the Panchayat by the plaintiffs and defendant 1 requesting them to settle their disputes and their decision (the Panchayatinama referred to in para 9 of the written statement).

6. The trial Judge rejected the prayer in respect of the joint petition and the Panchayatinama while permitting the other documents to go in. During cross-examination plaintiff 2 was cross-examining with reference to the Panchayati and Panchayatnama. Plaintiff 2 admitted that Purna Chandra Patra was one of the Bhadraloks but disowned that the signature appearing on the Panchayatnama belonged to him One 18-12-82 defendant 1 again filed an application for acceptance of the Panchayatnama. The learned Munsif rejected the petition on the ground that no satisfactory ground had been furnished for the belated filing The petitioner filed a further petition for acceptance of the document Therein he furnished in detail the reasons for the late filing He averred that the document had been scribed by one Purna Chandra Patra. Though he had sought to hand over the document, he could not as the document was not traceable. Only on 17-12-82 he could trace out the document and hand over the same to the petitioner. The document was very vital and the plaintiffs would not be taken by surprise as reference thereto had been made in the written statement and plaintiff 2 had been cross-examined with reference to it The learned Munsif again rejected the petition holding that the reasons were after-thought; the same not having been furnished in the earlier petition. The document had been filed by the petitioner and not by Purna Chandra He further held that subsequent petition after rejection of an earlier petition was not maintainable.

7. Mr. Mohapatra, the learned counsel for the petitioner, urged two points. First, rejection of the first petition for want of particulars could not operate as a bar to the entertainment of the second petition furnishing particulars. Secondly, Order 13 Rule 2 clothed the Court with enough discretion to permit late filing of documents if the facts and circumstances so warranted and the learned Munsif erred in exercise of jurisdiction on account of his failure to notice and consider all the facts and circumstances.

8. The technical ground on which the learned Munsif has rejected the petition is not sustainable. The learned Munsif rejected the first petition as no particulars showing good cause to the satisfaction of the Court for the late filing had been furnished in the petition. The rejection was, therefore, not on merits, i.e., after taking the cause shown into consideration and holding the same unsatisfactory. The rejection was not due to the learned Munsif not being satisfied with the cause shown The second petition with reasons was therefore maintainable.

9. The second contention requires careful consideration The provisions in Order 13 have been framed for a fair trial of cases so that parties get notice of the documents of the other side sufficiently in advance and prepare themselves for the battle. Sub-rule (1) of Rule 1 of Order 13 provides that the documentary evidence in possession or power of the parties should be produced at or before the settlement of issues. The object of the Rule is to ensure a fair trial and to prevent parties from manufacturing evidence during the course of trial

As was said in Hari Ram v. Lachmi Singh, AIR 1928 Pat 537 : Order 13, Rule 1 was enacted to secure a fair trial of a case, not to penalize parties for not producing documents in time. Its main object was to prevent parties from manufacturing evidence pending the trial to meet unexpected exigencies.

10. If Order 13, Rule 1 was absolute in terms, there may be situations and circumstances where its inexorable operation might cause miscarriage of justice. Hence Order 13 Rule 2 invests the Court with a discretionary jurisdiction: to accept documents filed at belated stage. It should, however, be satisfied that the party has good and adequate grounds for not filing the documents at or before the settlement of issues. What shall be good and adequate reasons cannot be stated in a straight jacketed formula They shall vary from case to case depending upon the peculiar circumstances of the case.

In Madan Gopal v. Mamraj Maniram, AIR 1976 SC 461, the Supreme Court has observed:

'................Order 13 Rule 2 of the Civil P.C does not provide for any particular ritualistic formula in which the order of the Court has to be passed. The object of Order 13 Ruel 2 is merely to prevent belated production of documents, so that it may not work injustice to the defendant....... This provision clearly clothes the Court with discretion to allow production of documents, if it is satisfied that good cause is shown to its satisfaction...........'

In Gopika Raman Roy v. Atal Singh, AIR 1929 PC 99, their Lordships of the Privy Council were of the opinion that where the documents were of undoubted authenticity and would assist the Court in coming to a decision on the issues before it, leave should be granted.

11. Whereas the object of Order 13, Rule 1 is to lay down the stage when a party shall file documentary evidence so that each knows on what document the other seeks to rely and gets ready for the trial, Order 13, Rule 2 makes provision for meeting certain contingencies. The object of the rules is not to penalize the party but to secure a fair trial of the case, Where Order 13, Rule 2 is invoked mala fide, where the move is to cause delay or is vexatious, the cause shown cannot be held to be good cause shown to the satisfaction of the Court. The doors of the discretionary jurisdiction should be closed Where, however, the document is vital and would assist the Court in coming to a decision, the doors should not be shut out

12. In the present case the petitioner had indicated about the intervention of the Bhadraloks in the pleadings. Plaintiff 2 was cross-examined with reference to the Panchayati and Panchayatnama. The petitioner took the plea that the document was with Purna Chandra and was being filed as soon as the same was traced out and handed over to him Hence, there would be no question of manufacturing evidence to suit the purpose. Moreover the other side can be given an opportunity to meet the situation The learned trial Judge therefore failed to exercise jurisdiction vested in him with material irregularity in rejecting the application I would therefore, set aside his order.

13. In view of the situation that would emerge, necessitating affording an opportunity to defendant 1 to adduce further evidence, the plaintiffs shall have an opportunity to adduce further evidence, if they so choose and shall have an opportunity to cross-examine the witnesses examined on behalf of the defendants. The learned trial Judge would grant the opportunity accordingly and also allow the defendant 1 to prove the document in question. In sum, both the parties should be given opportunity for a fair trial Defendant t-petitioner shall, however, pay cost of Rs. 150/-to the plaintiffs in the Court below within two weeks from the date of intimation of the receipt of the record by the Court below. The trial Court shall inform the parties accordingly.

14. In the result, the revision is allowed There would be no order as to costs of this Court


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