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Tyagi and Co. and anr. Vs. Yash Pal and - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 626 of 1984
Judge
Reported in28(1985)DLT15; 1986(11)DRJ172
ActsCode of Civil Procedure (CPC), 1908 - Order 13, Rule 2
AppellantTyagi and Co. and anr.
RespondentYash Pal and ;sat Pal
Advocates: O.P. Tyagi and; Rajesh Tyagi, Advs
Cases ReferredFirm Buja Mal Gainda Mal v. Mukta Parshad and
Excerpt:
code of civil procedure - order 13, rule 2--the trial court closed the evidence during the pendency of the application under order 13, rule 2 and then rejected the application for production of documents on the ground that his evidence has been closed.;the trial court passed a mindless order. ; that order 13, rule 2 must be liberally construed if good cause is shown as to advance the cause of justice. documents which are above suspicion should not be excluded if they are necessary for a proper decision of the suit. - - (4) learned counsel for the plaintiff submits that the plaintiff bhu dev is an old man of 79 years with very weak eye sight, that the agreement to sell dated 16th november. learned counsel for the plaintiff further submits that the plaintiff had shown good cause for late..........these are the facts. m/s. tyagi & co., plaintiff no. i through shri bhudev, plaintiff no. 2 filed a suit on 15th november, 1980 for specific performance of an agreement to sell dated 16th november, 1970. it has been alleged that plaintiff no. 2 and one d k. khanna were partners in terms of a deed dated 16th november, 1970 to carry on partnership business under the name and style of m/s. tyagi & co. (plaintiff no. 1), that nar dev son of ganga sahai agreed to sell 44 bighas 6 bids was of land situated at jharoda, majra burari, delhi-9 to the partnership firm tyagi & co. in terms of an agreement to sell dated 16th november, 1970 in consideration of ri 44.300.00 out of which a sum of rs. 10,000.00 was paid as advance and the balance was agreed to be paid at the time of registration.....
Judgment:

Sultan Singh, J.

(1) This revision under Section 115 of the Code of Civil Procedure (for short 'the Code') is directed against the order dated 26th July, 1984 of the trial court dismissing the application of the petitioner-plaintiff under Order 13 Rule 2 of the Code for leave to produce documents.

(2) Briefly these are the facts. M/s. Tyagi & Co., Plaintiff No. I through Shri BhuDev, Plaintiff No. 2 filed a suit on 15th November, 1980 for specific performance of an agreement to sell dated 16th November, 1970. It has been alleged that plaintiff No. 2 and one D K. Khanna were partners in terms of a deed dated 16th November, 1970 to carry on partnership business under the name and style of M/s. Tyagi & Co. (plaintiff No. 1), that Nar Dev son of Ganga Sahai agreed to sell 44 Bighas 6 bids was of land situated at Jharoda, Majra Burari, Delhi-9 to the partnership firm Tyagi & Co. in terms of an agreement to sell dated 16th November, 1970 in consideration of Ri 44.300.00 out of which a sum of Rs. 10,000.00 was paid as advance and the balance was agreed to be paid at the time of registration of the sale deed, that major portion of the said land had been acquired under the Land Acquisition Act and thereforee the suit for specific performance -was filed with respect to only 9 Bigha 5 bids was of the land against The defendants, namely, Yash Pal and Sat Pal sons of Yag Datt for execution of the sale deed and other reliefs in terms of the agreement to sell. It has been further alleged that D. K. Khanna, partner of the firm Tyagi & Co. retired on 27th February. 1974 and he had relinquished all rights, title and interest in favor of Bhu Dev plaintiff No. 2, that Nar Dev died on 22nd August, 1980 without any issue, and the defendants claim to have inherited all rights of the deceased Nar Dev under a will. The defendants contested the suit. After decision of preliminary issue regarding jurisdiction of the court, the issues on merits were framed on 21st December, 1982 and the suit was adjourned for recording plaintiff's evidence to 17th March, 1983. It appears that no witness of the plaintiff was present and the suit was adjourned for his evidence to 21st July, 1983. No body appeared on behalf of the plaintiff on 21st July, 1983 and thereforee the suit was dismissed for default of appearance. On an application filed under Order 9 Rule 9 of the Code the plaintiff's suit wai restored by order dated 7th February, 1984 on payment of Rs. 200.00 as costs. The trial court had further observed that since no list of witnesses was filed by the plaintiff, be would only examine himself as a witness on 22nd May, 1984.

(3) The plaintiff on 22nd May, 1984 filed an application under Order 13 Rule 2 of the Code for leave to file the five documents namely, (1) partnership deed dated 16th November, 1970, (2) agreement to sell dated 16th November, 1970. (3) receipt for Rs. 10.000.00 dated 16th November, 1970 executed by Nar Dev. (4) dissolution deed dated 27th February, 1974 and (5) receipt for Ri. 12000.00 dated 27th February, 1974 executed by the retiring partner D K. Khanna. The trial court closed the plaintiff's evidence and adjourned the suit to 9th Jnly,1984for reply to his application. By order dated 26tb July, 1984 the trial court dismissed the application. It has been held by the trial court that the suit was filed in November, 1970 and during the period of 31 years the plaintiff had not examined any single witness, that his evidence was closed vide order dated 22nd May, 1984 and that the application to produce documents was highly belated. The plaintiff thereforee has filed this revision.

(4) Learned counsel for the plaintiff submits that the plaintiff Bhu Dev is an old man of 79 years with very weak eye sight, that the agreement to sell dated 16th November. 1970 is a registered document, that there is no doubt about the existence and genuineness of all the five documents, that the plaintiff in his application under Order 13 Rule 2 of the Code had alleged that he had misplaced the documents and had forgotten where he had placed them, that the evidence in the suit had not started and the defendants were not going to be prejudiced in any manner, that the plaintiff had been able to locate the documents and thereforee he sought permission to file them on record. Learned counsel for the plaintiff further submits that the plaintiff had shown good cause for late production of the documents but the trial court instead of considering the good cause dismissed his application on irrelevant consideration, i.e. on the ground that evidence of the plaintiff had already been closed. He submits that fie order dated 22nd May, 1984 closing the evidence was palsied after the filing of the application under Order 13 Rule 2 of the Code, that grave injustice would be caused to the plaintiff if the documents were not allowed to be filed on record and that the defendants if at all, can be compensated by costs During the course of hearing of this revision the plaintiff filed an application (C.M.No. 4767/84) where he has alleged that a part of the land agreed to be sold to the plaintiffs was acquired by the Government and a reference under Section 31(2) of the Land Acquisition Act for disbursement of the compensation in respect of the acquired land is pending disposal in the court of Shri GS. Dakha, Addl. District Judge that the petitioner had filed the five original documents in that court before the filing of the application in the trial court under Order 13 Rule 2 of the Code. The petitioner also filed an additional affidavit dated 28th February, 1985 deposing that the said five original documents were filed in the court of the Additional District Judge on 17th January, 1984. He has also filed certified copies of the said five documents obtained from the record of the court of Shri G.S. Dakha, Addl. District Judge, Delhi in this revision.

(5) Learned counsel for the petitioner argues that the trial court acted illegally and/or with material irregularity in exercise of its jurisdiction in rejecting the application under Order 13 Rule 2 of the Code. Order 13 Rules I and 2 of the Code are as under :

'(1)Documentary evidence to be produced at or before the settlement of issues : The parties or their pleaders shall produce, at or before the settlement of issues all the documentary evidence of every description in their possession of power, on which they intend to rely, and which has not already been filed in court, and all documents which the court has ordered to be produced. (2) The court shall receive the documents so produced; Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs. 2(1) Effect of non-production of documents-No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule I shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of tb6 court'' for the non-production thereof; and the court receiving any such evidence shall record the reasons for so doing. 2(2) Nothing in Sub-rule (1) shall apply to documents- (a) produced for the cross-examination of the witnesses of the other party, or (b) handed over to a witness merely to refresh his memory.

(6) In Madan Gopal Kanodia v. Mamraj Maniram and otheri, Air 197flS.C.461it has been observed that Order 13 Rule 2 of the Code does not provide for any particular particular formula in which the order of the court has to be passed, that the object of Order 13 Rule 2 is merely to prevent belated production of documents so that it may not work injustice to the defendant and that 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. Further it has been observed in that case that the defendants had ample opportunity to rebut the documents to show that they were not genuine as the evidence had not begun.

(7) In Bliwanath Satpathy and others v. Subarna Dibya and another Air 1975 0ri 89 it has been observed that if a document appears to be relevant the court may take a lenient view and admit the document even though filed at a late stage on payment of costs unless the party filing the document is grossly negligent or the document appears to be of suspicious nature. It has been further held that the trial court acted with material irregularity where the trial court did not consider the petition showing cause of late production of the document and rejected the document ignoring the provisions of Order 13 Rule 2 of the Code and the order of the trial court was set aside.

(8) In Ram Nath Singh and others v. Brij Kishore Singh and others : AIR1980Pat160 the filing of documents was refused by the trial court on the ground that the evidence of the plaintiff had already been closed, it was held that the court exercised discretion illegally in refusing to receive documents.

(9) In Gyanlram and another v. Gulab Chand it has been observed that in admitting documents produced at a stage later than the first hearing the courts should be liberal and should not exclude documents which arc above suspicion, if they are necessary for the proper decision of the case and where the document was a registered partition deed, which had obviously a material hearing on the controversy between the parties, the court ought to have allowed the production of the document and it acted wrongly in rejecting the same.

(10) La S.M.James and another v. Dr. AbdulKhair : AIR1961Pat242 it has been observed that Order 13 Rule 2 of the Code makes a satisfactory Explanationn for non-production at the first bearing a condition precedent for the reception of documents produced out of time. But Rule 2 must be liberally construed so as to advance the cause of justice if the documents have not been produced in accordance with Rule I of the Code.

(11) In Ram Sarup v. Sant Lal. the plaintiff for fear of tampering did not file the registered sale deed but mentioned in the list of reliance. It was held that refusal to admit documents taking too technical view resulting injustice to a party, was improper.

(12) In Nanu Ram and others v. Ardichand and Anrs. the documents were not filed at the earlier stage as the plaintiff was prevented by his sudden illness in another place and there was no counter-affidavit controverting the fact. it was held that the lower court acted improperly in refusing to receive the documents.

(13) Learned counsel for the defendants has referred to Union of India v. M/s. Dwarkadais Radha Kilhan Oil Mill : AIR1957Pat688 where it has been held that when additional evidence was admitted by the court, the defendant must be given an opportunity to adduce evidence in support of its defenses. Learned counsel for the defendant has also referred to Firm Buja Mal Gainda Mal v. Mukta Parshad and another, Air 1937 Lah 464 and Ram Lal Dhirta Ram v The Delhi Municipal Corporation, Delhi : AIR1973Delhi112 . The facts of these cases are entirely different and do not help the respondent.

(14) The object of Order 13 Rule I of the Code is to prevent fraud by late production. The documents must, thereforee, be produced at or before the settlement of issues. However, the object of the rule is not to penalise the parties and the court is given discretion under Order 13 Rule 2 of the Code to receive any document at a late stage of the suit if there is no suspicion about their genuineness and there can be no objection to reception of such documents at a belated stage. Order 13 Rule 2 of the Code must be liberally construed if good cause is shown so as to advance cause of justice. Rules of procedure are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. Documents which are above suspicion should not be excluded if they are necessary for proper decision of the suit. The exercise of discretion however is governed in each case by the particular circumstances of that case.

(15) In the present case the suit was no doubt filed in November, 1980. Issues on merits were framed on 21st December, 1982 and the first date for plaintiff's evidence was 17th March, 1983 when it was adjourned to 21st July, 1983. The suit was dismissed on account of the absence of the plaintiff but it was restored on 7th February, 1984 on payment of Rs. 200.00 as costs. The trial court in its order dated 7th February, 1984 allowed the plaintiff only to examine himself as a witness as he had not filed the list of witnesses. There is no law under which the plaintiff can be directed to examine himself only for his failure to file the list of witnesses. It is thereforee apparent that the trial court in its order dated 7th February, 1984 directing the plaintiff to examine himself only, acted illegally.

(16) The trial court had adjourned the suit for recording the plaintiff's statement to 22nd May, 1984 on which date the application under Order 13 Rule 2 of the Code with documents was filed. The court adjourned the suit for reply to this application to 9th July, 1984 but before adjourning closed the plaintiff's evidence on the ground that no list of witnesses had been filed and not a single witness bad been examined since the framing of issues on 21st December, 1982. A medical certificate of illness was filed but the same was also rejected closing the evidence. I do not appreciate how the evidence was closed when the plaintiff's application under Order 13 Rule 2 of the Code for leave to produce the documents was filed. The court again acted illegally in closing the evidence during the pendency of his application under Order 13 Rule 2 of the Code.

(17) The impugned order was passed on 26th July, 1984. The trial court acted with material irregularity in the exercise of its jurisdiction while disposing of the plaintiff's application for leave to produce the documents. By its own order dated 22nd May, 1984 the trial court had closed the evidence of the plaintiff and he was refused leave to produce documents on the ground that his evidence had already been closed vide order dated 22nd May, 1984. First the court closed the evidence during the pendency of the application under Order 13 Rule 2 of the Code and then rejected his application for production of documents on the ground that his evidence had already been dosed. It has been further observed in the impugned order that the plaintiff had not examined a single witness during the period of 31 years. he plaintiff has not examined any witness, but it can not be a ground for rejecting his application for leave to produce documents. As already observed, documents arc required to be filed on or before the settlement of issues but documents. can be produced at a later stage if good cause is shown for late production. The trial court did not apply its mind to the reasons for late production given in the application. The trial court has not referred to the ground given by the plaintiff for late production. The trial court has also not referred to the nature of the documents filed with the application. It has not considered whether these documents would help the court in properly deciding the suit. The agreement to sell dated 16th November, 1970, is a registered document. Partnership deed and the dissolution deed between Bhu Dev, plaintiff and his partner D.K.. Khanna are on non-judicial stamp papers. The receipt dated 16th November, 1970 refers to advance payment made by the plaintiff to Nar Dev towards the sale consideration. The other receipt for Rs. 12.000.00 dated 27th February, 1974 is with respect to the payment made by Bbu Dev to his retiring partner D. K. Khanna in consideration of his relinquishing all rights, title and interest in the partnership firm in favor of the plaintiff. All these documents are very material for the purpose of decision of the case. There can be no doubt about the genuineness of I he agreement to sell which is a registered document. Learned counsel for the respondents submits that the agreement to sell was a forged document. Whether the original agreement was forged or not can be decided only after evidence. Prima facie it cannot be said that the registered agreement to sell is not genuine or was not in existence when the suit was filed. The same can be said about the partnership deed, the dissolution deed which are on stamp papers and the two receipts also which are referred to in the agreement to sell and the dissolution deed. The documents on the face of it appear to be genuine and are referred to in the plaint. The pica of the defendant that the agreement to sell or other documents were forged can be decided only after recording evidence and allowing the plaintiff to place them on record. Further the reason for non-production of the documents given by the plaintiff is that he is aged 79 years, his eye sight is very weak and he had misplaced the documents and had forgotten where be had placed them. No mala fide has been imputed to the plaintiff. He filed the list of reliance with the plaint. Admittedly reference under Section 31 of the Land Acquisition Act relating to the subject matter of the agreement to sell is pending before the Add). District Judge. The plaintiff has filed an affidavit that the original documents were filed on 17th January, 1984 in the court of the Additional District Judge. The plaintiff filed photostat copies before the trial court and has filed the certified copies of the said documents in this court. If the documents have been filed on record of another case, secondary evidence of those documents can be produced in the present suit.

(18) Learned counsel for the defendants submits that the agreement to sell was the basis of the plaint and it ought to have been filed in court along with the plaint as required by Order 7 Rule 14 of the Code. This is correct but agreement to sell can also be allowed to be filed with leave of the court under Order 7 Rule 18 of the Code.

(19) A bare reading of the impugned order is conclusive to show that the trial court passed a mindless order, did not apply its mind to the facts of the case, did not consider the circumstances on account of which the application for late production was filed. The trial court thus acted with material irregularity in the exercise of its jurisdiction in rejecting the plaintiff's application. As a matter of fact the trial court did not exercise jurisdiction vested in it for accepting or rejecting the documents. I am satisfied that there was good cause for the plaintiff for not filing the documents at the earlier stage. The suit was dismissed on 21st July, 1983 and restored on 7th February, 1984 but on 17th January, 1984 the plaintiff had filed all the documents in the court of the Additional District Judge, Delhi. The suit was adjourned to 22nd May, 1984 and be filed the present application for leave to produce documents on that date. Under these circumstances I am satisfied that the plaintiff is entitled to leave to produce all the five documents. The plaintiff shall be entitled to produce evidence to prove all the five documents and also other issues framed in the case. The defendants also will have a right to produce evidence in the case in accordance with Order 18 of the Code.

(20) The revision petition is accordingly accepted setting aside the impugned order dated 26th July, 1984. The plaintiff if allowed to produce the certified copies of the documents in question. He bad already filed certified copies of the documents in this court on 28th February, 1985. These certified copies shall be sent to the trial court by the registry. In the facts and circumstances of the case there will be no order as to costs. Parties are directed to appear before the trial court on 22nd April, 1985.


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