Asha Devi Bhargav and Others vs Komal and Others

Sujoy Paul, J—Since common order dated 3.3.2014 is under challenge in these petitions filed under Article 227 of the Constitution, on the joint request of parties, matters were analogously heard and decided by this common order.

W.P. No. 1877/14 is filed by the plaintiff assailing the order dated 3.3.2014 whereby his applications preferred under Section 65 of the Evidence Act, under Order 7 Rule 14 CPC and application filed under Order 16 Rule 1 CPC are rejected by the Court below.

In W.P. No. 2352/14 the other side has assailed the order to the extent his application preferred under Order 8 Rule 1 CPC is rejected.

The application under Order 16 Rule 1 CPC is rejected on the ground that Order 16 Rule 1 is a mandatory provision. Since plaintiff has not filed the application within the prescribed time, it cannot be entertained. It is seen that this point is no more res-integra. This Court in W.P. No. 5546/2012 (Raghuraj Singh & others v. Kedar Singh & others) dealt with this point and opined as under:--

"In my considered opinion, the said judgment although was passed with respect to Order 8 Rule 1 CPC but the same analogy can be applied/drawn for interpreting the aforesaid principle applicable in this case also. It cannot be forgotten that even Order 16 Rule 2 and Order 16 Rule 6 CPC are also part of the procedure. These provisions also contain the word "shall" but non-performance of a duty/conduct/activity within the time so prescribed does not lead to forfeiture of the right. In other words, in absence of providing the consequences of not doing the act within the same time or any penal action thereupon, it will remain open for the courts to grant further time to meet the ends of justice. In other words, the basic purpose of such cases is to see whether the delay in preferring the application is bona fide or is with a view to delay the proceedings with oblique motive. If it is not that such intention, the delay simplicitor cannot be a ground to deprive him from his right nor such right will stand automatically extinguished after the time prescribed or the event mentioned in the Statute. However, I make it clear that although those provisions are held to be directory even when the word "shall" is used, it will always open for the courts to examine whether the delay in filing the said application is proper, justiciable and is not tented with oblique motive etc.

In the facts and circumstances of this case, in my opinion, the court below has taken a hyper-technical view in rejecting the applications aforesaid. In the opinion of this Court, the document dated 6.1.2005 was a crucial document and petitioners have filed the applications aforesaid for justiciable reasons. The applications are not preferred with any ulterior motive or to delay the proceedings unnecessarily. Since production of said document/record is necessary, the other reasons assigned by the court below for rejecting the applications cannot also be a ground for upholding the order impugned. Consequently, the order impugned dated 6.7.2012 (Annexure P-7) is set aside. Both the applications preferred by the petitioners/defendants are allowed. The court below shall proceed from the aforesaid stage."

In the light of aforesaid, I find no hesitation to hold that application under Order 16 Rule 1 CPC is erroneously rejected. The said application stands allowed.

So far application under Section 65 is concerned, the application shows that the petitioner filed the photocopy of the sale deed. There is no material on record to show that the necessary ingredients flowing from Section 63 and 65 of the Evidence Act were satisfied by the plaintiff. In absence thereof, no flaw can be found in the order impugned. Order to that extent is affirmed.

So far application under Order 7 Rule 14 CPC is concerned, by this application, petitioner contended that his original sale deed was lost by him in the Tehsil Court. The Court below opined that unless court is satisfied that the said document is really misplaced by the plaintiff, mechanically permission cannot be granted. There was no material before the court below because of which plaintiff''s version could have been disbelieved. The court below has not assigned any reason as to why the said reason assigned by plaintiff should be disbelieved. I find no reason as to why certified copy should not be taken on record.

Resultantly, the impugned order to the extent application under Order 7 Rule 14 CPC was rejected, is set aside. The said application is allowed.

So far application of petitioner Jaswant filed under Order 8 Rule 1 CPC is concerned, Shri Gupta, learned senior counsel fairly admitted that the same principle which was applicable for deciding an application under Order 7 Rule 14 CPC would be applicable on instant application.

In the opinion of this Court, if this application is allowed, no prejudice would be caused to the other side. Resultantly, order to the extent this application was rejected is set aside. Application under Order 8 Rule 1 CPC is allowed.

It will be open to the petitioner Ashadevi to file a fresh application under Section 65 of the Evidence Act in view of availability of certified copy on record.

Petitions are partly allowed. No cost.