It can, thus, be seen that Order VII, Rule 14
envisages production of the documents (where the
plaint is based on such documents) and which are in
possession or power of the plaintiff. If the
plaintiff is not in possession of such document on
which he sues, he shall state in whose possession or
power the document is, wherever possible. Subrule (3)
of Rule 14 of Order VII then provides for a document,
which ought to be produced in the Court by the
plaintiff when the plaint is presented, if not
produced, shall not without the leave of the Court, be
received in evidence on his behalf at the hearing of
the suit. Subrule (4) of Rule 14 of Order VII then
provides that nothing in this rule shall apply to
documents for the cross-examination of the plaintiff's
witnesses or handed over to a witness merely to
refresh his memory. It can, thus, be seen that Rule
14 of Order VII pertains to production of documents on
which “the plaintiff sues”, at the threshold and
nothing in rule 14 applies to the documents produced
for cross-examination of the “plaintiff's witness” or
handed over to witness merely to refresh his memory.
In the present case, the documents, which are sought
to be produced are neither documents which the
plaintiff sues upon, nor are sought to be produced for
the cross-examination of the plaintiffs' witness or
any other witness, in as much as the leading evidence
of the plaintiffs and evidence of the defendants is
already closed and the matter is at the stage of
leading of evidence in rebuttal by the plaintiffs.
Thus, in my considered view, neither the provisions of
Order XIV Rule 3 nor Order VII, Rule 14 of CPC can be
called into aid in this case. I am conscious of the
fact that mere wrong mentioning of the provisions may
not be decisive. However, it is not shown that such
application can be entertained under any other
provision.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NOS.239, 241 and 242 of 2016
Mr. Manguesh Rajaram Wagle
Vs.
Mr. Suresh D. Naik
CORAM :- C. V. BHADANG, J.
Pronounced on :- 16th September, 2016
Citation: 2016(6) ABR 215
Rule in all the petitions. The learned Counsel
for the contesting respondent nos.1 and 2(i) to 2(vii)4
waives service. Heard finally by consent of the
parties.
2. All these petitions are between the same
parties and arise out of the orders passed in R.C.S.
No.279/2000/D. They involve common and connected
questions of law and fact and as such, are being
disposed of by this common judgment.
3. The brief facts, necessary for the disposal of
the petitions may be stated thus :
That 'Garage premises' situated on the ground
floor of a building known as 'Yasin Manzil' standing
on Chalta No.126 of P.T. Sheet No.66, City Survey of
Panaji are the subject matter of dispute and are
hereinafter referred to as the suit premises.
The petitioners herein are the original
plaintiff nos.2(a) and 2(b) while the respondent nos.1
and 2(i) to 2(vii) are the original defendants. Rest
of the respondents are co-plaintiffs, along the
plaintiffs. For the sake of convenience, the parties
are referred to in their original capacity as the
plaintiffs and defendants.
The original plaintiff Manguesh Wagle and now
deceased Anandibai Wagle filed RCS No.279/2000/D (Old
Special Civil Suit No.5/1992) against the defendants
Suresh D. Naik and now deceased Abdul Razak for
permanent injunction, restraining the defendants or
anybody on their behalf from interfering with the
possession of the plaintiffs over the suit premises
and alternatively, for “restoring back” the possession
of the suit premises along with damages.
The case made out in the plaint is that the
plaintiffs are the tenants in possession of the suit
premises. It is contended that the original defendant
no.2 Shri Abdul Razak (since deceased) in collusion
with defendant no.1, Suresh Naik, had obstructed the
entry and user of the suit premises, which was being
used for parking of vehicles.
4. It is contended on behalf of the defendants
that the possession of the suit premises was
surrendered by original tenant, Shri Rajaram Wagle,
prior to his death, in the year 1981. Subsequently,
in or about 1990, the suit premises were given to the
defendant no.1 Suresh Naik, who is running liquor
business therein under two licences bearing
nos.129/1992 and 63/1992. There is some dispute as to
in respect of which premises, the application for
Excise Licence was made and the premises in respect of
which the licences were obtained.
5. The learned Trial Court framed issues, out of
which, issue nos.3 and 4 are relevant for the present
purpose and they read as under :
Issue No.3 – Whether the defendant no.1
proves that he was inducted by the
defendant no.2 in the suit premises ?
Issue No.4 – Whether the defendant no.2
proves that late Rajaram Wagle, as the
tenant of the suit premises, surrendered
the same to him before his death?
It can, thus, be seen that the burden in
respect of the aforesaid two issues lies on the
defendants.
6. The parties led oral and documentary evidence.
The plaintiff no.1 was examined as PW1 on 17/09/2005
and produced certain documents pertaining to grant of
Excise Licences to defendant no.1, which are marked as
Exh.57 and Exh.B (Colly). Remaining documents
pertaining to said Excise Licences were not produced.
The plaintiffs closed their leading case,
reserving their right to lead evidence in rebuttal on
issue nos.3 and 4 vide application Exh.67, which was
allowed by the Trial Court on 25/04/2006.
7. In April, 2006, the defendants were allowed to
produce certain documents, obtained by them under
Right to Information Act (RTI Act), (which were
subsequently certified as true copies), relating to
the said Excise Licences. This production was allowed
subject to proof and keeping the objections of the
plaintiffs open.
Somewhere in December, 2006, the plaintiffs
also obtained certain documents in relation to the
Excise Licences under the RTI Act.
8. The defendants led their oral evidence, inter
alia, by examining Ms. Amira Razak (DW1) and four
other witnesses, including the Excise Inspector
Durgesh Naik (DW3). The defendants closed their
evidence on 19/06/2015. The suit was then kept for
evidence of the plaintiffs, in rebuttal.
9. On 01/07/2015, the plaintiffs filed an
application under Order XVI, Rule 6 of the Code of
Civil Procedure (CPC), for issuing summons to the
Excise Department to produce the entire file
pertaining to Excise Licences granted to the defendant
no.1, which was rejected by the learned Trial Court on
10/07/2015. This was unsuccessfully challenged by the
plaintiffs in W.P.No.562/2015, which was dismissed by
this Court on 23/07/2015, with the following
observations in paras 4 and 5 of the judgment :
“4. I have given my thoughtful consideration
to the contentions of the learned Senior
Counsel appearing for the petitioners. By
the impugned order, the learned Judge has in
fact noted that the petitioners can produce
certified copies of the records of the
concerned files. With regard to the
contentions of Mr. Lotlikar, learned Senior
Counsel appearing for the petitioners, that
the records will be relevant to examine
whether some new documents were introduced
subsequently, I find that this aspect can be
ascertained only after the petitioners
produce the certified copies of the
documents from the concerned files, on which
the petitioners rely. In case the Court
finds any discrepancy with regard to the
documents, and in case such aspect is
material to decide the matter in controversy
in the suit, it is open to the Court to
direct the concerned Authority to produce
the files in accordance with law.
5. Subject to the above, I find that no case
is made out by the petitioners to entertain
the petition under Article 227 of the
Constitution. The petition stands,
accordingly, rejected. However, liberty to
the petitioners to challenge the impugned
order in case any adverse order is passed
against the petitioners at the time of final
disposal of the suit on merits.”
10. In July, 2015, the plaintiffs obtained another
set of entire files pertaining to the Excise Licences
under RTI Act.
The plaintiffs filed yet another application
(Exh.193) for production of the said documents, which
was rejected by the learned Trial Court on 31/08/2015.
W.P.No.715/2015, challenging the said order, was
dismissed by this Court on 30/10/2015.
11. In the aforesaid backdrop, it would now be
necessary to deal with the challenge in individual
Writ Petitions.
W.P.No.239/2016
12. The plaintiffs filed an application Exh.110
purportedly under Order XIV, Rule 3 read with Section
151 of CPC, for “production and reliance on additional
documents”. In the prayer clause of the said
application, reference is made to Order VII, Rule 14
read with Section 151 of CPC. By this application,
the plaintiffs are seeking to produce files pertaining
to Excise Licences and for this purpose, to issue
summons to the Excise Department. There is an
alternate prayer in the said application, which reads
thus :
“In the event, this Hon'ble Court is
disinclined towards production of the
said two files in original, this Hon'ble
Court be pleased to permit the defendants
to produce on record the certified copies
which they had obtained of the entire
files, firstly, in the year 2006 and
later in the year 2015, both the sets of
documents obtained by the plaintiffs in
the year 2006 as well in the year 2015,
are on record of this Hon'ble Court
having been produced by the plaintiffs
along with their application dated
1/8/2015.”
13. This application was opposed by the defendants,
inter alia, on the ground that it is hit by
principles of res judicata, for which reliance is
placed on the decision of the Hon'ble Supreme Court in
the case of Satyadhan Ghosal Vs. Deorajin Debi; AIR
1960 SC 941.
The learned Trial Court has rejected this
application by order dated 03/02/2016, which is
subject matter of challenge in this petition.
W.P. No.241/2016
14. It may be mentioned that the defendant
nos.2(iii), 2(iv) and 2(vi), who are daughters of
original defendant no.2 Shri Abdul Razak (since
deceased), had filed RCS No.577/2000/B (Old Special
Civil Suit No.89/1998), claiming that the suit
premises are allotted to them in Inventory Proceedings
bearing No.80/1989/A. That suit was withdrawn on
06/01/2009.
The plaintiffs have filed an application
Exh.202 purportedly under Order XI, Rule 14 of CPC,
seeking production of following documents relating to
RCS No.577/2000/B :
(i) Plaint.
(ii) Written Statement.
(iii) Additional Written Statement along
with issues framed in the suit.
(iv) Application for withdrawal of the
suit and the order passed thereon,
dismissing the suit as withdrawn.
This application was opposed by the defendants,
inter alia, on the ground that the documents are not
relevant and were not produced earlier, even if the
plaintiffs were in possession of the same.
The Trial Court has rejected this application
by order dated 04/12/2015, which is subject matter of
challenge in this petition.
W.P.No.242/2016
15. The plaintiffs have filed yet another
application Exh.203, purportedly under Order XVI, Rule
2 of CPC, for issuing summons to the office of
Commissioner of Excise to depute an official to depose
along with the file in respect of two Excise Licences.
This application was opposed by the defendants,
inter alia, on the ground that the plaintiffs have
exhausted their right to lead evidence in rebuttal,
the earlier applications filed by the plaintiffs on
01/07/2015 and 01/08/2015, having been rejected and
which orders having attained finality. It was
contended that the plaintiffs cannot be allowed to reagitate
the same, as it stands concluded.
The learned Trial Court has rejected the
application (Exh.203) by order dated 04/12/2015 which
is subject matter of challenge in this petition.
16. I have heard Shri Lotlikar, the learned Senior
Counsel for the petitioners and Smt. Agni, the learned
Senior Counsel appearing for the contesting
respondents.
17. It is submitted by Shri Lotlikar, the learned
Senior Counsel for the plaintiffs that the plaintiffs
had reserved liberty to lead evidence in rebuttal on
issue nos.3 and 4. It is contended that the
plaintiffs are only trying to lead such evidence,
which is not permitted for extraneous and untenable
reasons. The learned Senior Counsel was at pains to
point out that there is material discrepancy as to the
copies of two files pertaining to the Excise Licences,
obtained in 2006 and 2015 by the plaintiffs and also
the copies obtained and produced by the defendants.
In particular, reference is made to the difference in
the number of folios supplied each time and with
reference to the fees charged. It is submitted that
this clearly shows that there is tampering and
manipulation of the record. He submits that all that
the plaintiffs want is to produce the entire folios
relating to the Excise Licences on record.
It is submitted that the applications were
opposed only on two grounds namely, the said
documents/ files not being put to the concerned
witnesses in cross-examination and the same being hit
on principles of res judicata. It is submitted that
the production is refused on the ground that the
documents are not relevant, though this ground was not
raised. It is submitted that even otherwise, the
documents cannot be said to be not relevant to issue
nos.3 and 4. It is submitted that the production of
the entire files is necessary to show the serial
numbers of the folios to demonstrate that there are
alterations and manipulations and some of the
documents are missing from the file. The learned
Senior Counsel was at pains to point out that the
documents sought to be produced are not “live files”
as they are already disposed of. It is submitted that
the production is necessary only to demonstrate the
state of the file. The learned Senior Counsel pointed
out that earlier rejection of the applications is not
a ground/ reason given by the learned Trial Court.
The learned Senior Counsel has referred to the
provisions of Order XVIII, Rule 3 of CPC and Order
VII, Rule 14 of CPC. It is submitted that the
rejection of prayer earlier made for production of the
documents cannot come in the way of the plaintiffs
from seeking to produce the documents in rebuttal,
when specifically leave was reserved and granted. The
learned Senior Counsel submitted that the copies of
the pleadings, applications and the order permitting
withdrawal of Civil Suit No.577/2000/B filed by the
original defendant nos.2(iii), 2(iv) and 2(vi) are
also relevant. The learned Senior Counsel has pointed
out that these documents are in the nature of public
documents and production of their certified copies
can always be allowed.
18. On behalf of the plaintiffs, reliance is placed
on the following decisions :
(i) Smt. Taralakshmi Maneklal
Thanawalla & Anr. Vs. Shantilal Makanji
Dave and Ors; 2015(6) ALL MR 62.
(ii) Smt. Chitrakala Fal Dessai Vs. Shri
Balu Marathe alias Mane s/o. Jyotiba
Marathe; 2006(5) ALL MR 438.
(iii) Anil Kumar Chourasia Vs. Smt.
Prabha Devi and Ors.; AIR 2010 Jhar 115.
(iv) Vencu Gopal Tari and others Vs.
Nilconta S. Xete and others; AIR 1975 Goa,
Daman and Diu 32.
(v) Biswanath Prasad and others Vs.
Dwarka Prasad and others; AIR 1974 SC 117.
19. On the contrary, it is submitted by Smt. Agni,
the learned Senior Counsel for the contesting
respondents, that twice similar applications filed by
the plaintiffs have been rejected. The learned Senior
Counsel has placed reliance on the decision in the
case of Barkat Ali and another Vs. Badrinarain;
(2008)4 SCC 615, in order to submit that the
principles of res judicata not only apply in respect
of separate proceedings, but the general principles
also apply at the subsequent stage of the same
proceedings, the Court is precluded to go into that
question again, which has been decided or deemed to
have been decided by it at an earlier stage. The
learned Senior Counsel has placed reliance on the
decision of the Supreme Court in Shalini Shyam Shetty
and another vs. Rajendra Shankar Patil, (2010)8 SCC
329, in order to submit that the jurisdiction under
Article 227 of the Constitution of India is
essentially limited and to keep the subordinate Courts
and Tribunals within the bounds of their authority.
The learned Senior Counsel has submitted that the
impugned orders do not show any error of jurisdiction,
requiring interference.
20. The learned Senior Counsel has pointed out that
the evidence of the plaintiffs was closed as far back
as on 31/01/2006 and the issues were settled in the
year 2004. It is submitted that thus, the plaintiffs
cannot be permitted to go back at the stage envisaged
in Order VII, Rule 14 of CPC, except in exceptional
circumstances. It is submitted that the plaintiffs are
interested in prolonging the suit and this is yet
another attempt to gain time. The learned Senior
Counsel has placed reliance on the decision in the
case of M/s. Bagai Construction Vs. M/s. Gupta
Building Material Store; 2013 AIR SCW 1564, Union of
India Vs. Ibrahim Uddin and another; (2012)8 SCC 148
and Laxmibai through Lrs and another; (2013)4 SCC 97.
21. In reply, it is submitted by the learned Senior
Counsel for the plaintiffs that the plaintiffs are not
asking for production of the record and only asking
for examination of the witness from the office of the
Commissioner of Excise and the witness may bring the
file “for refreshing his memory”. Reference is made
to Order VII, Rule 14(4) of CPC, in order to submit
that nothing in Order VII, Rule 14 shall apply to
documents produced in the cross-examination of the
plaintiffs' witnesses or handed over to the witness
merely to refresh his memory. It is submitted that
merely because DW3 was not cross-examined on the
aspect of manipulation/ tampering, an opportunity to
lead evidence in rebuttal cannot be foreclosed.
22. In so far as W.P.No.241/2016 is concerned, it
is submitted that the documents are public documents
and admissions are admissible proprio vigore. The
learned Senior Counsel tried to make out a distinction
between the evidence of parties and the one by
witness.
23. In so far as W.P.No.239/2016 is concerned, it
is submitted that res judicata may not apply as the
earlier rejection cannot come in the way of permitting
the plaintiffs to lead evidence in rebuttal.
24. I have carefully considered the rival
circumstances and the submission made.
25. Notwithstanding the extensive narration of
facts, the issues involved are essentially limited. It
is a matter of record that the primary burden in so
far as issue nos.3 and 4 lies on the defendants. The
plaintiffs have closed their leading case way back in
the year 2006 and have been permitted to lead evidence
in rebuttal vide order dated 25/04/2006 below Exh.67.
It is further a matter of record that the defendants
have led their evidence including that of DW3 Durgesh
Naik and Excise Inspector and they have closed their
evidence on 19/06/2015. The suit has then been fixed
for evidence in rebuttal of the plaintiffs.
Thereafter, the plaintiffs had filed an application on
01/07/2015 under Order XVI Rule 6 of CPC. Order XVI
pertains to summoning and attendance of witnesses and
Rule 6 thereof pertains to summons to produce
documents. It envisages that any person may be
summoned to produce a document without being summoned
to give evidence and any person summoned merely to
produce document shall be deemed to have complied with
the summons if he causes such document to be produced
instead of attending personally to produce the same.
It can, thus, be seen that in the said application
dated 01/07/2015, the plaintiffs had sought production
of the files pertaining to Excise Licences, which was
rejected by the Trial Court on 10/07/2015 and
confirmed by this Court in W.P.No.562/2015. This
Court, in paras 4 and 5 of the judgment as reproduced
above, has noted that the learned Trial Court had
found that the plaintiffs can produce the certified
copies of the records of the concerned files. This
Court further found that the question whether some new
documents were introduced subsequently, can be
ascertained only after the plaintiffs produce the
certified copies of documents of the concerned file,
on which the plaintiffs relied and in case the Court
finds any discrepancy with regard to documents and in
case such aspect is material to decide the controversy
in the suit, it is open to the Court to direct the
concerned authorities to produce the files in
accordance with law. With this, the petition was
dismissed.
26. The plaintiffs filed yet another application,
which was dismissed on 31/08/2015 and that order was
confirmed by this Court in W.P.No.715/2015. In such
background, it has to be seen whether similar request
could have been permitted in respect of production of
the files pertaining to the two Excise Licences.
27. In so far as W.P.No.239/2016 is concerned, the
plaintiffs had filed an application Exh.110
purportedly under Order XIV Rule 3 read with Section
151 of CPC while in the prayer clause, reference is
made to Order VII, Rule 14 read with Section 151 of
CPC. It would be significant to see whether such a
prayer can lie under any of these provisions. Order
XIV pertains to settlement of issues and determination
of suits on issues of law and issues agreed upon.
Rule 3 provides for the materials from which issues
may be framed. Order VII pertains to provisions as
regards plaint. Rule 14 thereof provides for
production of documents, on which the plaintiffs sues
or relies. Order VII, Rule 14 reads thus :
“14. Documents relied on in Plaint.-
Production of document on which plaintiff
sues or relies
(1) Where a plaintiff sues upon a document
or relies upon document in his possession
or power in support of his claim, he shall
enter such documents in a list, and shall
produce it in court when the plaint is
presented by him and shall, at the same
time deliver the document and a copy
thereof, to be filed with the plaint.
(2) Where any such documents not in the
possession or power of the plaintiff, he
shall, wherever possible, state in whose
possession or power it is.
(3) A document which ought to be produced
in Court by the plaintiff when the plaint
is presented, or to be entered in the list
to be added or annexed to the plaint but is
not produced or entered accordingly, shall
not without the leave of the Court, be
received in evidence on his behalf at the
hearing of the suit.
(4) Nothing in this rule shall apply to
document produced for the cross examination
of the plaintiff’s witnesses, or, handed
over to a witness merely to refresh his
memory.”
28. It can, thus, be seen that Order VII, Rule 14
envisages production of the documents (where the
plaint is based on such documents) and which are in
possession or power of the plaintiff. If the
plaintiff is not in possession of such document on
which he sues, he shall state in whose possession or
power the document is, wherever possible. Subrule (3)
of Rule 14 of Order VII then provides for a document,
which ought to be produced in the Court by the
plaintiff when the plaint is presented, if not
produced, shall not without the leave of the Court, be
received in evidence on his behalf at the hearing of
the suit. Subrule (4) of Rule 14 of Order VII then
provides that nothing in this rule shall apply to
documents for the cross-examination of the plaintiff's
witnesses or handed over to a witness merely to
refresh his memory. It can, thus, be seen that Rule
14 of Order VII pertains to production of documents on
which “the plaintiff sues”, at the threshold and
nothing in rule 14 applies to the documents produced
for cross-examination of the “plaintiff's witness” or
handed over to witness merely to refresh his memory.
In the present case, the documents, which are sought
to be produced are neither documents which the
plaintiff sues upon, nor are sought to be produced for
the cross-examination of the plaintiffs' witness or
any other witness, in as much as the leading evidence
of the plaintiffs and evidence of the defendants is
already closed and the matter is at the stage of
leading of evidence in rebuttal by the plaintiffs.
Thus, in my considered view, neither the provisions of
Order XIV Rule 3 nor Order VII, Rule 14 of CPC can be
called into aid in this case. I am conscious of the
fact that mere wrong mentioning of the provisions may
not be decisive. However, it is not shown that such
application can be entertained under any other
provision.
29. A perusal of the impugned order passed by the
Trial Court would show that the Trial Court has
considered the case of the plaintiffs in respect of
the prayer for production of two files extensively and
has ultimately found that the plaintiffs have not
stated about the relevancy of each of the documents
contained in the files. According to the Trial Court,
this assumes importance as some of the documents are
already produced by PW1 and in order to rebut the
same, DW1 has produced some other documents, which
were subsequently compared with the originals produced
by Excise Inspector (DW3). The learned Trial Court
has found that although the plaintiffs have contended
that the necessity of production of documents has
arisen after the cross-examination of DW1 and DW3,
there is no dispute that the certified copies of files
were available with the plaintiffs when both the
witnesses were cross-examined by them and at that
stage, no attempt was made to produce the documents
from the file or to bring the alleged manipulation on
record. The Trial Court has further went on to
observe that the placement of the documents in
Government Department is not within the control of the
parties and “not governed by any rules.” It has been
further found that the evidence of DW3 clearly shows
that the documents brought by him in the Court were
removed from the original file and hence, the
placement of the documents in the original file is not
relevant to show that the documents are manipulated.
In that view of the matter, the application has been
rejected.
30. In so far as W.P.No.242/2016 is concerned, the
application Exh.203 is filed by the plaintiffs
purportedly under Order XVI, Rule 2 of CPC, which
provides for expenses of a witness to be paid into
Court. It may be mentioned that the earlier
application filed by the plaintiffs under Order XVI,
Rule 6 was rejected by the Trial Court and has been
confirmed by this Court, granting liberty to the
plaintiffs to produce the certified copies, which are
in their possession and which can, then, be compared
by the learned Trial Court in order to find out
whether some new documents have been introduced
subsequently. The learned Trial Court has dismissed
this application on the ground that earlier,
production of the documents and the files was not
allowed and the plaintiffs have failed to explain the
relevancy of the said documents and the present
application is only an attempt to scuttle the earlier
order passed by this Court, by taking a backdoor entry
and to bring on record the evidence, which is not
relevant in so far as the rebuttal of issue nos.3 and
4 is concerned.
31. The plaintiffs had filed yet another
application for production of the said documents,
which was rejected by the Trial Court on 31/08/2015,
which has been confirmed by this Court. In my
considered view, the plaintiffs are only trying to
make similar request by taking recourse to provisions,
which are not applicable. In any event, the prayer
cannot be granted in view of the fact that similar
such requests have been earlier rejected, which orders
have attained finality.
32. It would be significant to note that both these
applications, filed on 01/07/2015 and 01/08/2015 have
been filed after the suit was fixed for evidence in
rebuttal. The submission that the Trial Court has
rejected the application on the ground that the
documents are not shown to be relevant when no such
contention was raised, also cannot be accepted. Merely
because the party does not raise an objection as to
the relevancy of documents, would not preclude the
Court from examining the question as the relevancy of
document goes to the very root of the matter while
deciding whether production of the documents is to be
allowed.
33. This takes me to W.P.No.241/2016. As noticed
earlier, the original defendant nos.2(iii), 2(iv) and
2(vi) i.e. the daughters of the original defendant
no.2 Abdul Razak (since deceased), had filed RCS
No.577/2000/B, claiming that the suit premises are
allotted to them in Inventory Proceedings bearing
No.80/1989/A, which suit has been withdrawn on
06/01/2009. In the first place, it is difficult to
envisage as to how the copies of the plaint, written
statement/ additional written statement along with
issues framed and the application for withdrawal and
order passed thereon, would be relevant in so far as
rebuttal evidence on issue nos.3 and 4 is concerned.
Issue no.3 pertains to the case set up by the
defendant no.1 that he was inducted by now deceased
Abdul Razak in the suit premises somewhere in the year
1990, while issue no.4 pertains to the case set up by
the defendant no.2 that late Rajaram Wagle, as the
tenant of the suit premises, had surrendered the
tenancy rights prior to his death in the year 1981.
The learned Trial Court in para 24 of the impugned
order has found that the plaintiffs have failed to
explain relevance of these documents and at this
stage, cannot be allowed to produce the same, which
will result in reopening of their case, which was
closed way back in the year 2006. In para 25 of the
impugned order, the learned Trial Court has found that
the Inventory Proceedings are produced on record and
it is not in dispute that the defendants are brought
on record pursuant to the death of defendant no.2 as
his legal heirs. The Trial Court has ultimately found
that the plaintiffs cannot be allowed to produce
additional documents without explaining the relevance
of the same and that too after a period of 10 years,
when the matter has reached the stage of evidence in
rebuttal. I do not find that any exception can be
taken to the impugned order as passed.
34. In the case of Taralakshmi Thanawalla (supra),
it has been held that wherever in the matter of
assessment of the evidence, the Court has not been
alive to the legal position, or has applied incorrect
tests or rather failed to apply the correct tests,
then, the resultant decision is capable of being
corrected by a writ of certiorari. In the present
case, the only question is about production of certain
documents and not appreciation of any evidence. Even
while rejecting the application for production of
documents, it has not been shown that any incorrect
test has been applied.
35. In the case of Chitrakala Phaldessai (supra),
it has been held with reference to Order VII, Rule
14(3) and Order XIII Rule 2 that the Courts should not
generally deny leave to produce documents, because
ultimately it is always open to the other side to
cross-examine the party, who produces the document to
establish that the said documents are not relevant or
that the case based on said documents is not true.
The present applications filed by the
plaintiffs are not relatable to Order VII, Rule 14 of
CPC. As noticed earlier, Order VII Rule 14 pertains
to the documents, which are to be produced along with
the plaint and on which the plaintiff sues or relies.
Order XIII pertains to production, impounding and
return of documents. Rules 1 and 2 of Order XIII have
been substituted with Rule 1 of Order XIII, which
reads as under :
“1. Original documents to be produced at
or before the settlement of issues.- (1)
The parties or their pleader shall produce
on or before the settlement of issues, all
the documentary evidence in original where
the copies thereof have been filed along
with the plaint or written statement.
(2) The court shall receive the documents
Provided that they are accompanied by an
accurate list thereof prepared in such
form as the High Court directs.
(3) 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.”
In the present case, the plaintiffs have not
shown any reason for non-production of the documents
earlier and that apart similar request, made earlier
twice, has already been rejected.
37. The decision of Jharkhand of High Court in the
case of Anil Chourasiya (supra) again pertains to
Order VII, Rule 14 of CPC.
38. The decision in the case of Vencu Gopal Tari
(supra), is again distinguishable on facts, in which
there was a dispute as to the identity of the suit
property allegedly bearing two different registration
numbers and the impugned judgment was found to be
brief and laconic.
39. Lastly, in the case of Biswanath Prasad
(supra), the distinction between admission made by a
party to the suit and the witness, is brought about
with reference to Sections 21 and 145 of the Evidence
Act.
40. It is now well settled that the scope of
interference under Article 227 of the Constitution of
India, is essentially limited and such jurisdiction is
expected to be exercised to keep the subordinate
Courts and Tribunals within the bounds of their
authority. (See the judgment in the case of Shalini
Shyam Shetty (supra)). Even in the case of Abdul Razak
Vs. Manguesh Rajaram Wagle; (2010)2 SCC 432 (which has
arisen out of the same suit), it has been held that
writ of certiorari or exercise of supervisory
jurisdiction is not available to correct mere errors
of facts or of law unless the following requirements
are satisfied namely, (i) the error is manifest and
apparent on the face of proceedings such as when it is
based on clear ignorance or utter disregard of the
provisions of law; (ii) a grave injustice or gross
failure of justice has occasioned thereby. It has
been held that such supervisory jurisdiction is to be
exercised sparingly and only in appropriate cases, in
order to avoid a gross failure of justice or cases
which show manifest injustice being caused. Applying
these principles, I do not find that any case for
interference is made out.
41. In the result, Writ Petitions are dismissed,
with no order as to costs.
C. V. BHADANG, J.
envisages production of the documents (where the
plaint is based on such documents) and which are in
possession or power of the plaintiff. If the
plaintiff is not in possession of such document on
which he sues, he shall state in whose possession or
power the document is, wherever possible. Subrule (3)
of Rule 14 of Order VII then provides for a document,
which ought to be produced in the Court by the
plaintiff when the plaint is presented, if not
produced, shall not without the leave of the Court, be
received in evidence on his behalf at the hearing of
the suit. Subrule (4) of Rule 14 of Order VII then
provides that nothing in this rule shall apply to
documents for the cross-examination of the plaintiff's
witnesses or handed over to a witness merely to
refresh his memory. It can, thus, be seen that Rule
14 of Order VII pertains to production of documents on
which “the plaintiff sues”, at the threshold and
nothing in rule 14 applies to the documents produced
for cross-examination of the “plaintiff's witness” or
handed over to witness merely to refresh his memory.
In the present case, the documents, which are sought
to be produced are neither documents which the
plaintiff sues upon, nor are sought to be produced for
the cross-examination of the plaintiffs' witness or
any other witness, in as much as the leading evidence
of the plaintiffs and evidence of the defendants is
already closed and the matter is at the stage of
leading of evidence in rebuttal by the plaintiffs.
Thus, in my considered view, neither the provisions of
Order XIV Rule 3 nor Order VII, Rule 14 of CPC can be
called into aid in this case. I am conscious of the
fact that mere wrong mentioning of the provisions may
not be decisive. However, it is not shown that such
application can be entertained under any other
provision.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NOS.239, 241 and 242 of 2016
Mr. Manguesh Rajaram Wagle
Vs.
Mr. Suresh D. Naik
CORAM :- C. V. BHADANG, J.
Pronounced on :- 16th September, 2016
Citation: 2016(6) ABR 215
Rule in all the petitions. The learned Counsel
for the contesting respondent nos.1 and 2(i) to 2(vii)4
waives service. Heard finally by consent of the
parties.
2. All these petitions are between the same
parties and arise out of the orders passed in R.C.S.
No.279/2000/D. They involve common and connected
questions of law and fact and as such, are being
disposed of by this common judgment.
3. The brief facts, necessary for the disposal of
the petitions may be stated thus :
That 'Garage premises' situated on the ground
floor of a building known as 'Yasin Manzil' standing
on Chalta No.126 of P.T. Sheet No.66, City Survey of
Panaji are the subject matter of dispute and are
hereinafter referred to as the suit premises.
The petitioners herein are the original
plaintiff nos.2(a) and 2(b) while the respondent nos.1
and 2(i) to 2(vii) are the original defendants. Rest
of the respondents are co-plaintiffs, along the
plaintiffs. For the sake of convenience, the parties
are referred to in their original capacity as the
plaintiffs and defendants.
The original plaintiff Manguesh Wagle and now
deceased Anandibai Wagle filed RCS No.279/2000/D (Old
Special Civil Suit No.5/1992) against the defendants
Suresh D. Naik and now deceased Abdul Razak for
permanent injunction, restraining the defendants or
anybody on their behalf from interfering with the
possession of the plaintiffs over the suit premises
and alternatively, for “restoring back” the possession
of the suit premises along with damages.
The case made out in the plaint is that the
plaintiffs are the tenants in possession of the suit
premises. It is contended that the original defendant
no.2 Shri Abdul Razak (since deceased) in collusion
with defendant no.1, Suresh Naik, had obstructed the
entry and user of the suit premises, which was being
used for parking of vehicles.
4. It is contended on behalf of the defendants
that the possession of the suit premises was
surrendered by original tenant, Shri Rajaram Wagle,
prior to his death, in the year 1981. Subsequently,
in or about 1990, the suit premises were given to the
defendant no.1 Suresh Naik, who is running liquor
business therein under two licences bearing
nos.129/1992 and 63/1992. There is some dispute as to
in respect of which premises, the application for
Excise Licence was made and the premises in respect of
which the licences were obtained.
5. The learned Trial Court framed issues, out of
which, issue nos.3 and 4 are relevant for the present
purpose and they read as under :
Issue No.3 – Whether the defendant no.1
proves that he was inducted by the
defendant no.2 in the suit premises ?
Issue No.4 – Whether the defendant no.2
proves that late Rajaram Wagle, as the
tenant of the suit premises, surrendered
the same to him before his death?
It can, thus, be seen that the burden in
respect of the aforesaid two issues lies on the
defendants.
6. The parties led oral and documentary evidence.
The plaintiff no.1 was examined as PW1 on 17/09/2005
and produced certain documents pertaining to grant of
Excise Licences to defendant no.1, which are marked as
Exh.57 and Exh.B (Colly). Remaining documents
pertaining to said Excise Licences were not produced.
The plaintiffs closed their leading case,
reserving their right to lead evidence in rebuttal on
issue nos.3 and 4 vide application Exh.67, which was
allowed by the Trial Court on 25/04/2006.
7. In April, 2006, the defendants were allowed to
produce certain documents, obtained by them under
Right to Information Act (RTI Act), (which were
subsequently certified as true copies), relating to
the said Excise Licences. This production was allowed
subject to proof and keeping the objections of the
plaintiffs open.
Somewhere in December, 2006, the plaintiffs
also obtained certain documents in relation to the
Excise Licences under the RTI Act.
8. The defendants led their oral evidence, inter
alia, by examining Ms. Amira Razak (DW1) and four
other witnesses, including the Excise Inspector
Durgesh Naik (DW3). The defendants closed their
evidence on 19/06/2015. The suit was then kept for
evidence of the plaintiffs, in rebuttal.
9. On 01/07/2015, the plaintiffs filed an
application under Order XVI, Rule 6 of the Code of
Civil Procedure (CPC), for issuing summons to the
Excise Department to produce the entire file
pertaining to Excise Licences granted to the defendant
no.1, which was rejected by the learned Trial Court on
10/07/2015. This was unsuccessfully challenged by the
plaintiffs in W.P.No.562/2015, which was dismissed by
this Court on 23/07/2015, with the following
observations in paras 4 and 5 of the judgment :
“4. I have given my thoughtful consideration
to the contentions of the learned Senior
Counsel appearing for the petitioners. By
the impugned order, the learned Judge has in
fact noted that the petitioners can produce
certified copies of the records of the
concerned files. With regard to the
contentions of Mr. Lotlikar, learned Senior
Counsel appearing for the petitioners, that
the records will be relevant to examine
whether some new documents were introduced
subsequently, I find that this aspect can be
ascertained only after the petitioners
produce the certified copies of the
documents from the concerned files, on which
the petitioners rely. In case the Court
finds any discrepancy with regard to the
documents, and in case such aspect is
material to decide the matter in controversy
in the suit, it is open to the Court to
direct the concerned Authority to produce
the files in accordance with law.
5. Subject to the above, I find that no case
is made out by the petitioners to entertain
the petition under Article 227 of the
Constitution. The petition stands,
accordingly, rejected. However, liberty to
the petitioners to challenge the impugned
order in case any adverse order is passed
against the petitioners at the time of final
disposal of the suit on merits.”
10. In July, 2015, the plaintiffs obtained another
set of entire files pertaining to the Excise Licences
under RTI Act.
The plaintiffs filed yet another application
(Exh.193) for production of the said documents, which
was rejected by the learned Trial Court on 31/08/2015.
W.P.No.715/2015, challenging the said order, was
dismissed by this Court on 30/10/2015.
11. In the aforesaid backdrop, it would now be
necessary to deal with the challenge in individual
Writ Petitions.
W.P.No.239/2016
12. The plaintiffs filed an application Exh.110
purportedly under Order XIV, Rule 3 read with Section
151 of CPC, for “production and reliance on additional
documents”. In the prayer clause of the said
application, reference is made to Order VII, Rule 14
read with Section 151 of CPC. By this application,
the plaintiffs are seeking to produce files pertaining
to Excise Licences and for this purpose, to issue
summons to the Excise Department. There is an
alternate prayer in the said application, which reads
thus :
“In the event, this Hon'ble Court is
disinclined towards production of the
said two files in original, this Hon'ble
Court be pleased to permit the defendants
to produce on record the certified copies
which they had obtained of the entire
files, firstly, in the year 2006 and
later in the year 2015, both the sets of
documents obtained by the plaintiffs in
the year 2006 as well in the year 2015,
are on record of this Hon'ble Court
having been produced by the plaintiffs
along with their application dated
1/8/2015.”
13. This application was opposed by the defendants,
inter alia, on the ground that it is hit by
principles of res judicata, for which reliance is
placed on the decision of the Hon'ble Supreme Court in
the case of Satyadhan Ghosal Vs. Deorajin Debi; AIR
1960 SC 941.
The learned Trial Court has rejected this
application by order dated 03/02/2016, which is
subject matter of challenge in this petition.
W.P. No.241/2016
14. It may be mentioned that the defendant
nos.2(iii), 2(iv) and 2(vi), who are daughters of
original defendant no.2 Shri Abdul Razak (since
deceased), had filed RCS No.577/2000/B (Old Special
Civil Suit No.89/1998), claiming that the suit
premises are allotted to them in Inventory Proceedings
bearing No.80/1989/A. That suit was withdrawn on
06/01/2009.
The plaintiffs have filed an application
Exh.202 purportedly under Order XI, Rule 14 of CPC,
seeking production of following documents relating to
RCS No.577/2000/B :
(i) Plaint.
(ii) Written Statement.
(iii) Additional Written Statement along
with issues framed in the suit.
(iv) Application for withdrawal of the
suit and the order passed thereon,
dismissing the suit as withdrawn.
This application was opposed by the defendants,
inter alia, on the ground that the documents are not
relevant and were not produced earlier, even if the
plaintiffs were in possession of the same.
The Trial Court has rejected this application
by order dated 04/12/2015, which is subject matter of
challenge in this petition.
W.P.No.242/2016
15. The plaintiffs have filed yet another
application Exh.203, purportedly under Order XVI, Rule
2 of CPC, for issuing summons to the office of
Commissioner of Excise to depute an official to depose
along with the file in respect of two Excise Licences.
This application was opposed by the defendants,
inter alia, on the ground that the plaintiffs have
exhausted their right to lead evidence in rebuttal,
the earlier applications filed by the plaintiffs on
01/07/2015 and 01/08/2015, having been rejected and
which orders having attained finality. It was
contended that the plaintiffs cannot be allowed to reagitate
the same, as it stands concluded.
The learned Trial Court has rejected the
application (Exh.203) by order dated 04/12/2015 which
is subject matter of challenge in this petition.
16. I have heard Shri Lotlikar, the learned Senior
Counsel for the petitioners and Smt. Agni, the learned
Senior Counsel appearing for the contesting
respondents.
17. It is submitted by Shri Lotlikar, the learned
Senior Counsel for the plaintiffs that the plaintiffs
had reserved liberty to lead evidence in rebuttal on
issue nos.3 and 4. It is contended that the
plaintiffs are only trying to lead such evidence,
which is not permitted for extraneous and untenable
reasons. The learned Senior Counsel was at pains to
point out that there is material discrepancy as to the
copies of two files pertaining to the Excise Licences,
obtained in 2006 and 2015 by the plaintiffs and also
the copies obtained and produced by the defendants.
In particular, reference is made to the difference in
the number of folios supplied each time and with
reference to the fees charged. It is submitted that
this clearly shows that there is tampering and
manipulation of the record. He submits that all that
the plaintiffs want is to produce the entire folios
relating to the Excise Licences on record.
It is submitted that the applications were
opposed only on two grounds namely, the said
documents/ files not being put to the concerned
witnesses in cross-examination and the same being hit
on principles of res judicata. It is submitted that
the production is refused on the ground that the
documents are not relevant, though this ground was not
raised. It is submitted that even otherwise, the
documents cannot be said to be not relevant to issue
nos.3 and 4. It is submitted that the production of
the entire files is necessary to show the serial
numbers of the folios to demonstrate that there are
alterations and manipulations and some of the
documents are missing from the file. The learned
Senior Counsel was at pains to point out that the
documents sought to be produced are not “live files”
as they are already disposed of. It is submitted that
the production is necessary only to demonstrate the
state of the file. The learned Senior Counsel pointed
out that earlier rejection of the applications is not
a ground/ reason given by the learned Trial Court.
The learned Senior Counsel has referred to the
provisions of Order XVIII, Rule 3 of CPC and Order
VII, Rule 14 of CPC. It is submitted that the
rejection of prayer earlier made for production of the
documents cannot come in the way of the plaintiffs
from seeking to produce the documents in rebuttal,
when specifically leave was reserved and granted. The
learned Senior Counsel submitted that the copies of
the pleadings, applications and the order permitting
withdrawal of Civil Suit No.577/2000/B filed by the
original defendant nos.2(iii), 2(iv) and 2(vi) are
also relevant. The learned Senior Counsel has pointed
out that these documents are in the nature of public
documents and production of their certified copies
can always be allowed.
18. On behalf of the plaintiffs, reliance is placed
on the following decisions :
(i) Smt. Taralakshmi Maneklal
Thanawalla & Anr. Vs. Shantilal Makanji
Dave and Ors; 2015(6) ALL MR 62.
(ii) Smt. Chitrakala Fal Dessai Vs. Shri
Balu Marathe alias Mane s/o. Jyotiba
Marathe; 2006(5) ALL MR 438.
(iii) Anil Kumar Chourasia Vs. Smt.
Prabha Devi and Ors.; AIR 2010 Jhar 115.
(iv) Vencu Gopal Tari and others Vs.
Nilconta S. Xete and others; AIR 1975 Goa,
Daman and Diu 32.
(v) Biswanath Prasad and others Vs.
Dwarka Prasad and others; AIR 1974 SC 117.
19. On the contrary, it is submitted by Smt. Agni,
the learned Senior Counsel for the contesting
respondents, that twice similar applications filed by
the plaintiffs have been rejected. The learned Senior
Counsel has placed reliance on the decision in the
case of Barkat Ali and another Vs. Badrinarain;
(2008)4 SCC 615, in order to submit that the
principles of res judicata not only apply in respect
of separate proceedings, but the general principles
also apply at the subsequent stage of the same
proceedings, the Court is precluded to go into that
question again, which has been decided or deemed to
have been decided by it at an earlier stage. The
learned Senior Counsel has placed reliance on the
decision of the Supreme Court in Shalini Shyam Shetty
and another vs. Rajendra Shankar Patil, (2010)8 SCC
329, in order to submit that the jurisdiction under
Article 227 of the Constitution of India is
essentially limited and to keep the subordinate Courts
and Tribunals within the bounds of their authority.
The learned Senior Counsel has submitted that the
impugned orders do not show any error of jurisdiction,
requiring interference.
20. The learned Senior Counsel has pointed out that
the evidence of the plaintiffs was closed as far back
as on 31/01/2006 and the issues were settled in the
year 2004. It is submitted that thus, the plaintiffs
cannot be permitted to go back at the stage envisaged
in Order VII, Rule 14 of CPC, except in exceptional
circumstances. It is submitted that the plaintiffs are
interested in prolonging the suit and this is yet
another attempt to gain time. The learned Senior
Counsel has placed reliance on the decision in the
case of M/s. Bagai Construction Vs. M/s. Gupta
Building Material Store; 2013 AIR SCW 1564, Union of
India Vs. Ibrahim Uddin and another; (2012)8 SCC 148
and Laxmibai through Lrs and another; (2013)4 SCC 97.
21. In reply, it is submitted by the learned Senior
Counsel for the plaintiffs that the plaintiffs are not
asking for production of the record and only asking
for examination of the witness from the office of the
Commissioner of Excise and the witness may bring the
file “for refreshing his memory”. Reference is made
to Order VII, Rule 14(4) of CPC, in order to submit
that nothing in Order VII, Rule 14 shall apply to
documents produced in the cross-examination of the
plaintiffs' witnesses or handed over to the witness
merely to refresh his memory. It is submitted that
merely because DW3 was not cross-examined on the
aspect of manipulation/ tampering, an opportunity to
lead evidence in rebuttal cannot be foreclosed.
22. In so far as W.P.No.241/2016 is concerned, it
is submitted that the documents are public documents
and admissions are admissible proprio vigore. The
learned Senior Counsel tried to make out a distinction
between the evidence of parties and the one by
witness.
23. In so far as W.P.No.239/2016 is concerned, it
is submitted that res judicata may not apply as the
earlier rejection cannot come in the way of permitting
the plaintiffs to lead evidence in rebuttal.
24. I have carefully considered the rival
circumstances and the submission made.
25. Notwithstanding the extensive narration of
facts, the issues involved are essentially limited. It
is a matter of record that the primary burden in so
far as issue nos.3 and 4 lies on the defendants. The
plaintiffs have closed their leading case way back in
the year 2006 and have been permitted to lead evidence
in rebuttal vide order dated 25/04/2006 below Exh.67.
It is further a matter of record that the defendants
have led their evidence including that of DW3 Durgesh
Naik and Excise Inspector and they have closed their
evidence on 19/06/2015. The suit has then been fixed
for evidence in rebuttal of the plaintiffs.
Thereafter, the plaintiffs had filed an application on
01/07/2015 under Order XVI Rule 6 of CPC. Order XVI
pertains to summoning and attendance of witnesses and
Rule 6 thereof pertains to summons to produce
documents. It envisages that any person may be
summoned to produce a document without being summoned
to give evidence and any person summoned merely to
produce document shall be deemed to have complied with
the summons if he causes such document to be produced
instead of attending personally to produce the same.
It can, thus, be seen that in the said application
dated 01/07/2015, the plaintiffs had sought production
of the files pertaining to Excise Licences, which was
rejected by the Trial Court on 10/07/2015 and
confirmed by this Court in W.P.No.562/2015. This
Court, in paras 4 and 5 of the judgment as reproduced
above, has noted that the learned Trial Court had
found that the plaintiffs can produce the certified
copies of the records of the concerned files. This
Court further found that the question whether some new
documents were introduced subsequently, can be
ascertained only after the plaintiffs produce the
certified copies of documents of the concerned file,
on which the plaintiffs relied and in case the Court
finds any discrepancy with regard to documents and in
case such aspect is material to decide the controversy
in the suit, it is open to the Court to direct the
concerned authorities to produce the files in
accordance with law. With this, the petition was
dismissed.
26. The plaintiffs filed yet another application,
which was dismissed on 31/08/2015 and that order was
confirmed by this Court in W.P.No.715/2015. In such
background, it has to be seen whether similar request
could have been permitted in respect of production of
the files pertaining to the two Excise Licences.
27. In so far as W.P.No.239/2016 is concerned, the
plaintiffs had filed an application Exh.110
purportedly under Order XIV Rule 3 read with Section
151 of CPC while in the prayer clause, reference is
made to Order VII, Rule 14 read with Section 151 of
CPC. It would be significant to see whether such a
prayer can lie under any of these provisions. Order
XIV pertains to settlement of issues and determination
of suits on issues of law and issues agreed upon.
Rule 3 provides for the materials from which issues
may be framed. Order VII pertains to provisions as
regards plaint. Rule 14 thereof provides for
production of documents, on which the plaintiffs sues
or relies. Order VII, Rule 14 reads thus :
“14. Documents relied on in Plaint.-
Production of document on which plaintiff
sues or relies
(1) Where a plaintiff sues upon a document
or relies upon document in his possession
or power in support of his claim, he shall
enter such documents in a list, and shall
produce it in court when the plaint is
presented by him and shall, at the same
time deliver the document and a copy
thereof, to be filed with the plaint.
(2) Where any such documents not in the
possession or power of the plaintiff, he
shall, wherever possible, state in whose
possession or power it is.
(3) A document which ought to be produced
in Court by the plaintiff when the plaint
is presented, or to be entered in the list
to be added or annexed to the plaint but is
not produced or entered accordingly, shall
not without the leave of the Court, be
received in evidence on his behalf at the
hearing of the suit.
(4) Nothing in this rule shall apply to
document produced for the cross examination
of the plaintiff’s witnesses, or, handed
over to a witness merely to refresh his
memory.”
28. It can, thus, be seen that Order VII, Rule 14
envisages production of the documents (where the
plaint is based on such documents) and which are in
possession or power of the plaintiff. If the
plaintiff is not in possession of such document on
which he sues, he shall state in whose possession or
power the document is, wherever possible. Subrule (3)
of Rule 14 of Order VII then provides for a document,
which ought to be produced in the Court by the
plaintiff when the plaint is presented, if not
produced, shall not without the leave of the Court, be
received in evidence on his behalf at the hearing of
the suit. Subrule (4) of Rule 14 of Order VII then
provides that nothing in this rule shall apply to
documents for the cross-examination of the plaintiff's
witnesses or handed over to a witness merely to
refresh his memory. It can, thus, be seen that Rule
14 of Order VII pertains to production of documents on
which “the plaintiff sues”, at the threshold and
nothing in rule 14 applies to the documents produced
for cross-examination of the “plaintiff's witness” or
handed over to witness merely to refresh his memory.
In the present case, the documents, which are sought
to be produced are neither documents which the
plaintiff sues upon, nor are sought to be produced for
the cross-examination of the plaintiffs' witness or
any other witness, in as much as the leading evidence
of the plaintiffs and evidence of the defendants is
already closed and the matter is at the stage of
leading of evidence in rebuttal by the plaintiffs.
Thus, in my considered view, neither the provisions of
Order XIV Rule 3 nor Order VII, Rule 14 of CPC can be
called into aid in this case. I am conscious of the
fact that mere wrong mentioning of the provisions may
not be decisive. However, it is not shown that such
application can be entertained under any other
provision.
29. A perusal of the impugned order passed by the
Trial Court would show that the Trial Court has
considered the case of the plaintiffs in respect of
the prayer for production of two files extensively and
has ultimately found that the plaintiffs have not
stated about the relevancy of each of the documents
contained in the files. According to the Trial Court,
this assumes importance as some of the documents are
already produced by PW1 and in order to rebut the
same, DW1 has produced some other documents, which
were subsequently compared with the originals produced
by Excise Inspector (DW3). The learned Trial Court
has found that although the plaintiffs have contended
that the necessity of production of documents has
arisen after the cross-examination of DW1 and DW3,
there is no dispute that the certified copies of files
were available with the plaintiffs when both the
witnesses were cross-examined by them and at that
stage, no attempt was made to produce the documents
from the file or to bring the alleged manipulation on
record. The Trial Court has further went on to
observe that the placement of the documents in
Government Department is not within the control of the
parties and “not governed by any rules.” It has been
further found that the evidence of DW3 clearly shows
that the documents brought by him in the Court were
removed from the original file and hence, the
placement of the documents in the original file is not
relevant to show that the documents are manipulated.
In that view of the matter, the application has been
rejected.
30. In so far as W.P.No.242/2016 is concerned, the
application Exh.203 is filed by the plaintiffs
purportedly under Order XVI, Rule 2 of CPC, which
provides for expenses of a witness to be paid into
Court. It may be mentioned that the earlier
application filed by the plaintiffs under Order XVI,
Rule 6 was rejected by the Trial Court and has been
confirmed by this Court, granting liberty to the
plaintiffs to produce the certified copies, which are
in their possession and which can, then, be compared
by the learned Trial Court in order to find out
whether some new documents have been introduced
subsequently. The learned Trial Court has dismissed
this application on the ground that earlier,
production of the documents and the files was not
allowed and the plaintiffs have failed to explain the
relevancy of the said documents and the present
application is only an attempt to scuttle the earlier
order passed by this Court, by taking a backdoor entry
and to bring on record the evidence, which is not
relevant in so far as the rebuttal of issue nos.3 and
4 is concerned.
31. The plaintiffs had filed yet another
application for production of the said documents,
which was rejected by the Trial Court on 31/08/2015,
which has been confirmed by this Court. In my
considered view, the plaintiffs are only trying to
make similar request by taking recourse to provisions,
which are not applicable. In any event, the prayer
cannot be granted in view of the fact that similar
such requests have been earlier rejected, which orders
have attained finality.
32. It would be significant to note that both these
applications, filed on 01/07/2015 and 01/08/2015 have
been filed after the suit was fixed for evidence in
rebuttal. The submission that the Trial Court has
rejected the application on the ground that the
documents are not shown to be relevant when no such
contention was raised, also cannot be accepted. Merely
because the party does not raise an objection as to
the relevancy of documents, would not preclude the
Court from examining the question as the relevancy of
document goes to the very root of the matter while
deciding whether production of the documents is to be
allowed.
33. This takes me to W.P.No.241/2016. As noticed
earlier, the original defendant nos.2(iii), 2(iv) and
2(vi) i.e. the daughters of the original defendant
no.2 Abdul Razak (since deceased), had filed RCS
No.577/2000/B, claiming that the suit premises are
allotted to them in Inventory Proceedings bearing
No.80/1989/A, which suit has been withdrawn on
06/01/2009. In the first place, it is difficult to
envisage as to how the copies of the plaint, written
statement/ additional written statement along with
issues framed and the application for withdrawal and
order passed thereon, would be relevant in so far as
rebuttal evidence on issue nos.3 and 4 is concerned.
Issue no.3 pertains to the case set up by the
defendant no.1 that he was inducted by now deceased
Abdul Razak in the suit premises somewhere in the year
1990, while issue no.4 pertains to the case set up by
the defendant no.2 that late Rajaram Wagle, as the
tenant of the suit premises, had surrendered the
tenancy rights prior to his death in the year 1981.
The learned Trial Court in para 24 of the impugned
order has found that the plaintiffs have failed to
explain relevance of these documents and at this
stage, cannot be allowed to produce the same, which
will result in reopening of their case, which was
closed way back in the year 2006. In para 25 of the
impugned order, the learned Trial Court has found that
the Inventory Proceedings are produced on record and
it is not in dispute that the defendants are brought
on record pursuant to the death of defendant no.2 as
his legal heirs. The Trial Court has ultimately found
that the plaintiffs cannot be allowed to produce
additional documents without explaining the relevance
of the same and that too after a period of 10 years,
when the matter has reached the stage of evidence in
rebuttal. I do not find that any exception can be
taken to the impugned order as passed.
34. In the case of Taralakshmi Thanawalla (supra),
it has been held that wherever in the matter of
assessment of the evidence, the Court has not been
alive to the legal position, or has applied incorrect
tests or rather failed to apply the correct tests,
then, the resultant decision is capable of being
corrected by a writ of certiorari. In the present
case, the only question is about production of certain
documents and not appreciation of any evidence. Even
while rejecting the application for production of
documents, it has not been shown that any incorrect
test has been applied.
35. In the case of Chitrakala Phaldessai (supra),
it has been held with reference to Order VII, Rule
14(3) and Order XIII Rule 2 that the Courts should not
generally deny leave to produce documents, because
ultimately it is always open to the other side to
cross-examine the party, who produces the document to
establish that the said documents are not relevant or
that the case based on said documents is not true.
The present applications filed by the
plaintiffs are not relatable to Order VII, Rule 14 of
CPC. As noticed earlier, Order VII Rule 14 pertains
to the documents, which are to be produced along with
the plaint and on which the plaintiff sues or relies.
Order XIII pertains to production, impounding and
return of documents. Rules 1 and 2 of Order XIII have
been substituted with Rule 1 of Order XIII, which
reads as under :
“1. Original documents to be produced at
or before the settlement of issues.- (1)
The parties or their pleader shall produce
on or before the settlement of issues, all
the documentary evidence in original where
the copies thereof have been filed along
with the plaint or written statement.
(2) The court shall receive the documents
Provided that they are accompanied by an
accurate list thereof prepared in such
form as the High Court directs.
(3) 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.”
In the present case, the plaintiffs have not
shown any reason for non-production of the documents
earlier and that apart similar request, made earlier
twice, has already been rejected.
37. The decision of Jharkhand of High Court in the
case of Anil Chourasiya (supra) again pertains to
Order VII, Rule 14 of CPC.
38. The decision in the case of Vencu Gopal Tari
(supra), is again distinguishable on facts, in which
there was a dispute as to the identity of the suit
property allegedly bearing two different registration
numbers and the impugned judgment was found to be
brief and laconic.
39. Lastly, in the case of Biswanath Prasad
(supra), the distinction between admission made by a
party to the suit and the witness, is brought about
with reference to Sections 21 and 145 of the Evidence
Act.
40. It is now well settled that the scope of
interference under Article 227 of the Constitution of
India, is essentially limited and such jurisdiction is
expected to be exercised to keep the subordinate
Courts and Tribunals within the bounds of their
authority. (See the judgment in the case of Shalini
Shyam Shetty (supra)). Even in the case of Abdul Razak
Vs. Manguesh Rajaram Wagle; (2010)2 SCC 432 (which has
arisen out of the same suit), it has been held that
writ of certiorari or exercise of supervisory
jurisdiction is not available to correct mere errors
of facts or of law unless the following requirements
are satisfied namely, (i) the error is manifest and
apparent on the face of proceedings such as when it is
based on clear ignorance or utter disregard of the
provisions of law; (ii) a grave injustice or gross
failure of justice has occasioned thereby. It has
been held that such supervisory jurisdiction is to be
exercised sparingly and only in appropriate cases, in
order to avoid a gross failure of justice or cases
which show manifest injustice being caused. Applying
these principles, I do not find that any case for
interference is made out.
41. In the result, Writ Petitions are dismissed,
with no order as to costs.
C. V. BHADANG, J.
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