PROMILA Vs. HAZI GULAM RASOOL

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution of India assailing the order dated 27.07.2011 passed by Ld. Senior Civil Judge- cum-ARC, Karkardooma Courts, Delhi, by which an application u/O 8 Rule 1A r/w Order 13 Rule 4 and under Section 65 of the Indian Evidence Act filed by the petitioners/defendants was dismissed.

(2.) A suit for possession was filed by the respondent on 10.10.2000 with respect to property bearing no. C-111A, Gali No. 5, Bhajanpura, Delhi. The petitioners/defendants were not aware of the said suit and as a result of this, an ex-parte decree was passed against them on 30.11.2000. The petitioners, after coming to know about the suit filed an application under Order 9 Rule 13 C.P.C along with an application u/s 5 of the Limitation Act for condonation of delay. The application u/s 5 was dismissed on 17.09.2001 and consequentially, application under Order 9 Rule 13 was held to be not maintainable. The petitioner then filed an FAO on 21.09.2001 in the High Court, which set aside the impugned order on 17.10.2001 and remanded the case back to the lower court for deciding the applications under Order 9 Rule 13 and u/s 5 of the Limitation Act, after examination of evidence. The lower court, vide order dated 06.04.2009, directed the defendants (petitioners herein) to submit the originals of the documents relied upon, within four weeks time. When the date for producing evidence of the defendants came up on 10.02.2011; it was found that no photocopies of documents were on the court record. The petitioners moved an application under Order 8 Rule 1A (3) and Order 13 Rule 4 r/w Section 151 of the C.P.C, and also under Section 65 of the Evidence Act r/w Section 151 of C.PC. The above applications were dismissed by the Ld. Senior Civil Judge vide order dated 25.07.2011. This order has been challenged in the present petition.

(3.) THE Ld. Senior Civil Judge dismissed the application on the ground that the defendants have violated the court's order dated 06.04.2009 wherein they were asked to submit original documents. The reason given by the defendants that they were under a bonafide belief that the copies of documents were on the court record was not sufficient to convince the Ld. Trial Court to grant leave. After inspection of the records by the court, it was found that the application u/O 9 Rule 13 C.P.C did not mention anything about the filing of any documents along with the application. Since there was nothing on record to substantiate the filing of documents, the court sought it fit to dismiss the application.