SHANTI RANJAN DEWANJEE Vs. VICHUU ANGAMI

JUDGEMENT

(1.) This matter though relating to Kohima Bench was directed to be moved at the Principal Seat of the Gauhati High Court on 3.4.98 by the Hon'ble Chief Justice and it is in that light that this civil revision was so moved on 22.4.98 by the learned counsel for the petitioner Mr. B.R. Dey when on that day notice of motion was issued made returnable within 4 weeks. However, as prayed for the further proceeding of TS 5/78 so pending in the Cout of the Deputy Commissioner (Judi), Dimapur also got stayed with a liberty to the OP as to make a prayer if so advised for modification/alteration/ cancellation of the stay order so passed. It further transpires that the OP of this revision petition being represented by Mr. D.K. Talukdar the learned counsel thus filed a Misc. Case 62/ 98 for vacating the stay order as detailed above. It further transpires that when the date was so fixed for hearing the misc. case in presence of instead of hearing the Misc. Case because of both the sides lawyers appearing took an endeavour as to get the main civil revision disposed of at this stage itself and it is in that light the matter is heard.

(2.) The petitioner of this Civil Revision has filed this petition U/S. 115 read with Sec. 151 CPC also under Art. 227 of the Constitution being aggrieved by the order dated 17.3.98 passed by the learned Deputy Commissioner (Judl.), Dimapur in TS 5/78. The present petitioner Shanti Ranjan Dewanjee happened to be the defendant in the said title suit. It transpires that in the said title suit: the matter was fixed for judgment on 13.9.97 by the learned Court below when an application was so filed by the plaintiff-OP U/O. 13, Rule 2 CPC for admitting the certified copy of the registered sale deed dated l.9.1975 in substitution or in addition to the certified copy of the said deed filed at the time of filing of the plaint and the necessity was arisi ag for once again filing the certified copy of the same deed because of the OP side detecting after the argument stage of the suit that the certified copy of the said deed even though marked as Ext. A/ 40 filed earlier did not have the last page and thus it was felt necessary by the OP-plaintiff as to furnish the certified copy of the said deed afresh just to assist the Court to arrive at a right decision. It further transpires that the petition so filed with regard to the application so filed on 19.9.97 by the plaintiff for admitting the certified copy of the said deed and the learned Court below after hearing both the sides passed the impugned order on 17.3.98 admitting the document. Hence this Civil Revision petition.

(3.) Mr. B.R. Dey, the learned counsel for the petitioner has submitted that the learned Court below has erred in admitting the document which was so filed by the plaintiff's side as to fill up the lacuna and when the original deed was missing it was incumbent on the part of the plaintiff as to incorporate and take this ground at the very initial stage which in the instant case has not been done that Ext. A/40 as referred in the impugned order is not the certified copy of the deed in question but only the copy of the registered deed which in no case could have been admitted as secondary evidence and finding this lacuna an attempt was made by the plaintiff as to file the certified copy to fill up the said lacuna which was at the very belated stage accepted causing great prejudice to the petitioner-defendant. In this connection it is also pointed out that this ground of marking the copy of the deed as exhibit is also raised by the present petitioner in the notes of argument so given and placed before the learned Court below. It is also pointed out that the moment the title suit was posted for judgment in such circumstances admission of the document on the basis of the application of the OP-plaintiff dated 19.9.97 can well be said to be arbitrary and unwarranted which requires interference. In support of his this contention, Mr. Dey the learned counsel has referred to a reported case AIR 1990 Andhra Pradesh Page 265 (P. Ramchandra Murthy & Ors. -Vs- K. Rama Murthy & Ors.) particularly its headnote-A is read alongwith para 5. It is also emphatically argued by Mr. Dey, the learned counsel that Noso Angami died in 1977, the plaint was filed in 1978 but the plaintiff did not whisper a single word with regard to themissing of the original document in their plaint nor in their deposition and that being the position the learned Court below could not have admitted the certified copy of the said sale deed as secondary evidence.