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Radhey Shyam Vs. Nathuram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 273 of 1977
Judge
Reported inAIR1980Raj111
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 13, Rule 2
AppellantRadhey Shyam
RespondentNathuram
Appellant Advocate R.P. Goyal and; Nirmala Verma, Advs.
Respondent Advocate A. Rajvanshi, Adv.
DispositionPetition dismissed
Cases ReferredPoonamchand v. Bastiram
Excerpt:
.....is that howsoever gross the error of law may be while rejecting an application for admitting a document a revision cannot be entertained, whether a good cause has been shown under order 13, rule 2 warranting admission of a document after framing of issues and whether the circumstances mentioned in the amended rule 17a of order 18 for taking evidence even after it has been closed, are made out in a case or not, are questions on which the court may express an opinion rightly or wrongly and while doing so it may commit an error of law also by. or order 18, rule 17a or may commit a mistake in holding that there is no good cause when the one is proved but that would not result in bringing that case within any of the clauses (a), (b) or (c) of clause (1) of section 115, c. i would,..........or as interpreted and laid down by the high court would certainly be an error of law but not an error of jurisdiction as contemplated by section 115 c. p. c. (a), (b) or (c) of clause (1) of it. 11. so far as the judgment reported in 1978 cri lr (raj) 421 referred to above is concerned, it appears that the question whether revision lies or not, was not at all in issue. the revision application was heard ex parte as the respondent did not put up appearance and no objection was raised to the maintainability of the revision application. even otherwise this question whether under section 115 a revision can be entertained against the rejection of an application under order 13 rule 2 c. p, c., was never considered by the high court. that being so there was no occasion for the court to.....
Judgment:
ORDER

G.M. Lodha, J.

1. Radhey Shyam plaintiff has filed this revision application against the order of the learned Munsiff and Judicial Magistrate, Rajgarh rejecting his application for admission of three documents under Order 13 Rule 2 C.P.C.

2. A preliminary objection has been raised by Mr. Anil Rajvanshi, learned counsel for the respondent that no revision can be entertained on the question whether an application under Order 13 Rule 2 should have been accepted or rejected. He relies upon the judgment of this court reported in Harakchand v. State of Rajas-than, 1970 Raj LW 320, where a Full Bench consisting of Bhandari, C. J. and Bhargava and Modi JJ, observed as under:

'14. In this case it has been argued before us that by wrongly construing a document, the trial court held that it was admissible in evidence, while on a proper construction of document, it was inadmissible in evidence because of the provisions of the Registration Act and that the trial court thus proceeded to incorporate on record inadmissible evidence which would eventually be taken in consideration while finally deciding the case. Whether a particular evidence was admissible according to law or not is a question of law which the trial court was entitled to decide and if any error has been committed in deciding that question, it cannot be said that such error was in any way an error in the manner of exercise of jurisdiction.

15. The Supreme Court in Pandurang Dhondi Chougule, (AIR 1966 SC 153), has taken the view that even if the subordinate court has wrongly construed the decree, the High Court was not justified in reversing the finding of the subordinate court under Section 115 of the Code. Gajendragadkar C. J. who delivered the Judgment on behalf of the Court observed as follows:

The construction of a decree like the construction of a document of title is no doubt a point of law. Even so it cannot be held to justify the exercise of the High Court's revisional jurisdiction under Section 115 of the Code because it has no relation to the jurisdiction of the Court. Like other matters which are relevant and material in determining the question of the adjustment of debts, the question about the existence of the debt has been left to the determination of the Courts which are authorised to administer the provisions of the Act, and even if in dealing with such question, the trial Court or the District Court commits an error of law, it cannot be said that such an error would necessarily involve the question of the said court's jurisdiction within the meaning of Section 115 of the Code'.

16. The same is true when the court is construing a document for the purpose of deciding whether it is admissible for want of registration. Construction of a document is no doubt a question of law. But simply because it is a question of law, it does not mean that in construing a document as having particular import, the subordinate court acted with illegality or material irregularity in the exercise of its jurisdiction. Wanchoo, C. J. (as he then was) in Moonlal v. Sampatlal (ILR (1952) 2 Raj 1010), has taken the view that the finding of a trial court that a document is not a promissory note and was admissible in evidence on payment of duty and penalty could be revised by the High Court under Section 115 C.P.C. With utmost respect we are of the opinion that this view is not correct. Similarly the observation of this Court in Poonamchand v. Bastirm Deokishan 1969 Raj LW 248, that the question as to whether a document is admissible or hot admissible is a matter of procedure is not correct.

A construction of a document is a part of proceedings of a court and if these proceedings are conducted properly and a mistake is made in construing the document, the order passed by the court is not revisable.

17. We respectfully agree with the decision of the Division Bench of the Gujarat High Court in Shah Prabhudas Ishwardas v. Shah Bhogilal Nathalal, (AIR 1968 Guj 236), in which it has been held that error of law by the subordinate court in deciding whether a document was a promissory note within the meaning of Section 2(22) of the Stamp Act or hot was not concerned with the jurisdiction of the subordinate court and, therefore, none of the three clauses of Section 115, C. P. C. were attracted to the case'.

3. Mr. Goyal appearing for the petitioner submitted that this judgment was given on the Civil P. C. as it stood before the amendment of 1976. He contends that there has been a change and alteration in Section 115. He points out that a proviso has been added and Sub-clause (b) of the proviso mentions that in case an order if allowed to stand occasions failure of justice then interference can be made in revision.

4. It may be useful to compare the earlier and the later provisions of Section 115 C. P. C. Section 115 as it stood earlier to the amendment contained three alternative Clauses (a), (b) and (c) wherein the High Court could interfere in revision. I find that there has been no change so far as Clauses (a), (b) and (c) of the amended Section 115 is concerned. Proviso which has been added only restricts the scope of revision. Even if the conditions laid down in Clauses (a), (b) or (c) of Section 115 are fulfilled then also interference would not be made unless either of the conditions contained in the Clauses (a), (b) of the proviso are also fulfilled. There are further restrictions which have been put by Sub-clause (2) of Section 115. Thus the amendment has restricted the power of revision and it would be wrong to suggest that a revision can be entertained in case conditions of Clause (b) of the proviso to Section 115 are fulfilled without fulfilling the conditions laid down in (a) or (b) or (c) of the main Sub-section (1).

I am of the opinion that first of all the petitioner is required to satisfy the court that the subordinate court has exercised a jurisdiction not vested in it by law or to have failed to exercise jurisdiction so vested or to have acted in the exercise of jurisdiction illegally or with material irregularity and then further the petitioner is required to satisfy the court that the order if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings or the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Again the petitioner can invoke the jurisdiction of the High Court under Section 115, even if all the above conditions are fulfilled. Only when he satisfies the court that the bar of Sub-clause (2) would not apply. Thus there are three-fold hurdles in the way of the petitioner for invoking the jurisdiction of the High Court under Section 115 C. P. C, and the Parliament has put further fetters on this jurisdiction by the Amendment as observed above. In that view of the matter I cannot accept the contention of Mr. Goyal regarding interpretation which he has put on the amendment of Section 115.

5. Next it was argued that Order 13 Rule 2 C.P.C., now further stands liberalised as a separate provision has been made for admission of additional evidence even after the evidence has been closed under Order 18 Rule 17A C. P. C. Order 18 Rule 17A reads as under:

'17A. Production of evidence not previously known or which could not be produced despite due diligence.

Where a party satisfies the court that after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a late stage on such terms as may appear to it to be just'.

It is correct that the Parliament by this Amendment by addition of Rule 17A provided that in a given case even after the evidence has been closed the court can permit that party to produce evidence at a later stage. Here again it becomes necessary for a party to satisfy the Court that that evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence even after exercise of due diligence.

6. The crucial question which requires to be considered in the present case is whether a revision can be entertained for quashing an order rejecting an application for permission to produce document under Order 13 Rule 2 C. P. C. Mr. Goyal invited my attention to the judgment of this Court reported in Nenu Ram v. Vardichand, 1978 Cri LR (Raj) 421 wherein it was held that in case documents are sought to be produced after settlement of issues on the ground that they could not be produced earlier on account of some illness, petitioner cannot be said to be vexations and dilatory and that is good cause under Order 13 Rule 2 C. P. C.

7. It is true that a single Bench of this Court accepted the application in revision and directed the Munsiff to take three documents into evidence under Order 13 Rule 2 C. P. C. which were earlier rejected. Mr. Goyal also invited my attention to another judgment reported in Gyaniram v. Gulab Chand, AIR 1961 Raj 21 wherein a D. B. of this Court while considering a Civil First Appeal 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 are above suspicion, if they are necessary for proper decision of the case. Where the documents sought to be produced by the defendant at the stage of his examination as witness was a registered partition deed which had obviously a material bearing on the controversy between the parties it was held that the court ought to have allowed the production of the document and it acted wrongly in rejecting it. Learned counsel relied upon the following para at page 23.:

'It is regrettable that the pertinent question whether there was any good reason for permitting the production of the document at that stage was not considered and decided. We may pause to observe here for the guidance of the subordinate courts that the object of courts is to decide the rights of parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. They do not exist merely for the sake of enforcing discipline but for the sake of deciding the matters in controversy.

There are numerous authorities, which lay down that in admitting documents produced at a stage later than the first hearing, the courts should be liberal and should not exclude documents which are above suspision, if they are necessary for the proper decision of the case. In the present case, the document sought to be produced was a registered partition deed. There was no ground for supposing that it was fabricated. It has obviously a material bearing on the controversy between the parties. In our opinion, in the circumstances of the case, the court ought to have allowed the production of the document and it acted wrongly in rejecting it'.

8. Attention was also invited to a judgment of Nagpur High Court reported in Sm. Buchibai v. Nagpur University AIR 1946 Nag 377 wherein it was held that mere fact of delay should not come in the way of acceptance of documents. Considering a Civil First appeal a division bench observed as under :

'Held that the mere fact that the documents were produced at a late stage was not in itself sufficient ground for rejecting them. The defendants knew the case they had to meet and the case would in no way be changed by the admission of the documents. The documents should therefore be admitted in evidence'. Mr. Goyal also submitted that the three documents have got intrinsic strength of genuineness as they are certified copies of the Government record, proving the adoption and they have got material bearing in the case.

9. Mr. Goyal also contested the reasons given by the lower court for rejecting the application under Order 13 Rule 2 C.P.C and argued that the lower court has committed material irregularity in exercise of jurisdiction by rejecting the application ignoring the guidelines of the division bench of this court in the case of Gyaniram referred to above. His contention is that even otherwise the reasons given for rejecting the application are wrong both factually and legally.

10. I have given my careful thought to the submissions made by Mr. Goyal and the various documents referred to above. The judgment of the Rajasthan High Court in Gyaniram's case (supra) is a judgment which was given in first appeal though the principles for consideration of application under Order 18 Rule 2 would certainly govern the lower court while trying the civil original suits but that cannot justify an interference in revision. A refusal or an error of the trial court in not following the correct law either laid down under statute or as interpreted and laid down by the High Court would certainly be an error of law but not an error of jurisdiction as contemplated by Section 115 C. P. C. (a), (b) or (c) of Clause (1) of it.

11. So far as the judgment reported in 1978 Cri LR (Raj) 421 referred to above is concerned, it appears that the question whether revision lies or not, was not at all in issue. The revision application was heard ex parte as the respondent did not put up appearance and no objection was raised to the maintainability of the revision application. Even otherwise this question whether under Section 115 a revision can be entertained against the rejection of an application under Order 13 Rule 2 C. P, C., was never considered by the High Court. That being so there was no occasion for the Court to consider the implications, conclusions and deductions arising from the Harakchand's judgment of the full bench of this Court.

12. So far as Nagpur case is concerned, it was a civil appeal and the principle laid down was that if a party is aware of his adversary's case an application for taking documents at a later stage should not be rejected merely on the ground of delay. Whatever may have been its implications on the merits of the case on which I refrain from making any comment, it cannot provide any guidance on the crucial question which I am considering regarding the maintainability of the revision application,

13. The other submissions made by Mr. Goyal regarding the merits of the case and the correctness or otherwise of the reasons given for rejection, can only be considered if the preliminary objection is overruled and I hold that revision application can be entertained. Since I am of the view that Harakchand's case holds the field even after the amendment of Section 115, C. P. Code by the Amendment Act, 1976, I have to apply the principles laid down in it by the Full Bench of this High Court.

14. Mr. Goyal faced with this difficulty submitted that in Harakchand's case admissibility of the document was in question and there is no discussion about the question of a case under Order 13, Rule 2, C. P. C. He pointed out that whether a document should not be admitted for want of registration or whether a document is a promissory note or falls in some other category, requiring stamps, were issues under consideration in Harakchand's case and, therefore, according to Mr. Goyal the principles laid down in this case cannot govern the instant case. If the matter would have been so simple, I would have been inclined to consider the revision petition, but I find that the basic question which has been considered in this case is the scope of Section 115, C. P. C. It is not without significance that even earlier judgment in Moonlal v. Sampatlal (ILR (1952) 2 Raj 1010) and judgment of Poonamchand v. Bastiram Deokishan (1969 Raj LW 248) were held to be not good law.

The substance of the deduction or the conclusion which can be made from Harakchand's case is that the court should make a distinction between error of law and error of jurisdiction. An error of law cannot provide justification for interference under Section 115, C. P. C. The Full Bench was of the opinion that all these types of cases wherein the court is required to consider whether a document should be admitted or not may be for want of stamps or registration or the finding of the court regarding the nature of the document and ultimate order rejecting or accepting a document in evidence are all matters wherein if the court comes to a wrong conclusion, it would be an error of law,

Poonamchand v. Bastiram's case was a case in which this Court has taken the view that the admissibility of the document and the orders passed in respect thereto are matters of procedure. This particular view was expressly declared to be incorrect. That clinches the issue and makes it clear that the only deduction which can be arrived at from Harakchand's case is that howsoever gross the error of law may be while rejecting an application for admitting a document a revision cannot be entertained, Whether a good cause has been shown under Order 13, Rule 2 warranting admission of a document after framing of issues and whether the circumstances mentioned in the amended Rule 17A of Order 18 for taking evidence even after it has been closed, are made out in a case or not, are questions on which the court may express an opinion rightly or wrongly and while doing so it may commit an error of law also by. either wrong appreciation of the law on the point of the scope of Order 13, Rule 2, C. P. C. or Order 18, Rule 17A or may commit a mistake in holding that there is no good cause when the one is proved but that would not result in bringing that case within any of the Clauses (a), (b) or (c) of Clause (1) of Section 115, C. P. C.

15. Aggrieved party will have to wait for making a grievance against this in an appeal in case a decree is passed against that party finally. I would, therefore, not enter into the controversy regarding sufficiency or otherwise of the cause shown and whether it was a good cause or not within the meaning of Order 13, Rule 2, C. P. C. as these questions if necessary, can be agitated and decided in an appeal which may, if necessary, be filed on the final decision of the case by either of the parties. On a careful and thoughtful consideration of the various authorities and judgments mentioned above and more particularly the judgment in Harakchand's case which according to me holds the field even today and applies squarely in the facts of the present case, I hold that no revision lies.

16. The revision application is, therefore, dismissed without any order as to costs.


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