COLONEL MUKUL DEV Vs. DEVESHWARI DEVI

JUDGEMENT

(1.) The respondent-plaintiff filed a suit being Suit No.848 of 2002 for declaration and also for a permanent injunction praying that the suit property situate at 142, Jattiwara, Meerut be declared as the property of the plaintiff and also the defendant be restrained by a permanent injunction from causing any interference in the peaceful possession and occupation of the property 142, Jattiwara, Meerut. The claim was set up by stating that the husband of the plaintiff-respondent namely late Surendra Dayal, who had expired on 17/6/2002, had bequeathed the property in question by a will dtd. 19/5/2002. A further allegation was there in the plaint that the father of the deceased-husband of the plaintiff late Sri Shiv Dayal had willed his self-earned property on 29/4/1974 to the deceased-husband of the plaintiff. The suit was filed sometime in the year 2002 and thereafter the petitioner-defendant Colonel Mukul Dev filed a written statement on 18/6/2002. Thereafter issues were struck and the parties submitted their affidavits by way of examination-in-chief. The plaintiff and the defendant were put to cross-examination and before the settlement of the issues and at the time of filing of the suit, all relevant documents, which were to be relied upon by the parties as documentary evidence in original, were also filed. After the cross-examination of the plaintiff who was produced as PW-1 and the cross-examination of PW-2 Smt. Payal Agarwal, the daughter of the plaintiff was concluded on 19/7/2018, the evidence viz.-a-viz. the plaintiff was closed. The defendant, after the production of his affidavit as examination-in-chief on 17/9/2018 was put to cross-examination with effect from 5/11/2018. While the evidence of the defendant-petitioner was being adduced in the cross-examination, the plaintiff filed an application no.155-C on 22/2/2019 and sought permission to file certain fresh documents as evidence. The documents which were to be filed were around 9 in number. The defendant-petitioner objected to the filing of fresh evidence on 25/2/2019. However, when the Trial Court by its order dtd. 26/2/2019 permitted the plaintiff-respondent to bring on record some of the documents which she had prayed for being brought on record then the instant writ petition was filed.

(2.) Learned counsel for the petitioner has assailed the order by stating that when the evidence viz.-a-viz. the plaintiff had been closed then without recalling the order by which the plaintiff's evidence was closed, the Trial Court could not have admitted in evidence/further documents. The additional documents which were sought to be brought in as additional evidence could not have been allowed to be filed. Learned counsel for the petitioner further submitted that when there was no law to permit the adducing of evidence by the plaintiff after the evidence of the defendant-petitioner had commenced then the additional evidence could not have been allowed to be brought on record. Learned counsel assailed the order by stating that the Trial Court had not given any reason as to why the additional evidence had been brought on record. Learned counsel for the petitioner submitted that bringing on record documents by way of additional evidence was a dilatory tactics which was being adopted by the plaintiff. Learned counsel for the petitioner relied upon Order VII Rule 14 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") and submitted that at the time of the filing of the suit, the documents, which were to be relied upon and which were in the possession of the plaintiff, should have been entered in the list which had accompanied the plaint and those documents should have been produced in the Court when the plaint was presented by the plaintiff. He submitted that if the documents were not in the possession of the plaintiff, she should have stated that in whose possession exactly the documents were. Learned counsel for the petitioner further submitted that the plaintiff's case in paragraph nos.2 and 3 of the plaint was specifically to the effect that initially Sri Shiv Dayal had willed the property in question to the husband of the plaintiff Sri Surendra Dayal on 29/4/1974 and thereafter the husband of the plaintiff namely Surendra Dayal had willed the property to the plaintiff on 19/5/2002. These facts when had been denied in the written statement then it was the bounden duty of the plaintiff to have filed the original documents under Order XIII Rule 1 CPC. Learned counsel for the petitioner-defendant further submitted that under Order XVIII Rule 4 CPC when the recording of evidence was done and when the plaintiff found that there were certain lacuna in her evidence then she could not have been permitted to file the additional documents. Learned counsel for the petitioner further submitted that earlier under Order XVIII Rule 17-A CPC, documents could have been submitted but thereto there was a condition that the documents which would have been submitted after the conclusion of the evidence were to be such documents/evidence which were not within the knowledge of the plaintiff or could not be produced by the plaintiff at the time when the plaintiff was leading his/her evidence. Since, learned counsel for the petitioner states that, the provisions of Order XVIII Rule 17-A CPC were being misused by the litigants to prolong proceedings, the said provision of Order XVIII Rule 17-A CPC itself was deleted from the Code. Learned counsel for the petitioner, therefore, stated that the order impugned cannot be sustained in the eyes of law and may be set-aside. Sri Avneesh Tripathi, learned counsel appearing for the plaintiff-respondent, however, submitted that when there was denial of certain existing facts by the defendant in his cross-examination then it was essential that the documents which the plaintiff was bringing on record be brought on record. This, learned counsel for the plaintiff-respondent submitted would facilitate the Court in passing the judgment in the case. Learned counsel for the plaintiff-respondent submitted that under Order XIII Rule 1(3) CPC any document could be produced for the cross-examination of the witnesses or other parties and, therefore, the document in question could have definitely been produced. He further submitted that even if there was no provision in the CPC for the production of additional documents then the same could be allowed to be done by the Court in its inherent powers under sec. 151 CPC. Learned counsel for the plaintiff-respondent to bolster his case relied upon a decision of Delhi High Court in Subhash Chander vs. Bhagwan Yadav reported in 2010 (114) DRJ 306 decided on 25/11/2009 and submitted that under Order XIII Rule 1(3) CPC the document could be produced. Learned counsel for the plaintiff-respondent further relied upon a decision of the Supreme Court in K.K. Velusamy vs. N. Palanisamy reported in (2011) 11 SCC 275 and submitted that even if there was no power bestowed upon the Court under the CPC to allow the parties to produce any material or evidence, the same could be done under sec. 151 CPC to facilitate the Court to adjudicate the case.

(3.) Having heard learned counsel for the parties, the Court is of the view that definitely under the specific provisions of CPC i.e. under Order VII Rule 14 and under Order XIII Rule 1, the Court had no power to allow the parties to adduce further evidence after the relevant stages were over. The relevant stages were :