Jayramdas Chela Vishandan vs Civil Judge (Jr. Div.), Ist Class, Mahwa, District Dausa and Others

Mahesh Bhagwati

By way of the instant writ petition the petitioner has beseeched to quash and set aside the order dated 26th February, 2008, whereby the learned Civil Judge, Mahwa, District Dausa, allowed the application filed by the defendant-respondent no.2 Bhagchand @ Bhagirath under Order 8 Rule 1A(3) of CPC, so as to the cost of Rs. 1,000/- and ordered to take the said document on record. Heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned order.

The facts of the case are that the plaintiff-petitioner filed a civil suit against Bhagchand @ Bhagirath for declaration that the will dated 13th December, 1990 executed in favour of the defendant be declared void and ineffective, as it was obtained by misrepresentation and fraud. It is also claimed that the defendant be restrained by an injunction not to get the name mutated in the revenue records on the basis of alleged will dated 13th December, 1990 and also that the defendant may not interfere with the use and occupation of the land in question, which was in possession of the plaintiff-petitioner.

Having heard the learned counsel for the parties and carefully perused the relevant material, it is found that the case was posted for hearing final arguments on 7th February, 2008. On that day, the arguments commenced but were not concluded. During the arguments, it was revealed that issue no.2 was not properly settled, hence, the court amended the issue no.2 on that very day. The parties were asked as to whether they intended to lead any evidence with regard to amended issue, but both the parties gainsaid to lead any evidence. Resultantly, the case was adjourned to 8th February, 2008 for hearing final arguments. On 8th February, 2008, the defendant-respondent no.2 Bhagchand filed an application under Order 8 Rule 1A(3) of CPC imploring that the document dated 3rd January, 1970 be taken on record. Learned trial court having heard both the parties adlongum, observed that the document was relevant for the just decision of the case, hence, allowed the application of the defendant-respondent no.2 and ordered to take the document on record. Aggrieved with the said order, the petitioner has invoked the extra-ordinary jurisdiction under Article 227 of the Constitution.

Learned counsel for the petitioner canvassed that when the case had already been fixed for hearing final arguments, there was no occasion for the defendant-respondent no.2 to file the said document, which had no bearing with the written statements of defence, hence, the impugned order be set aside and the writ petition be allowed.

E converso, the learned counsel for the respondent no.2 contended that the document was registered and bearing signatures of the parties. Hence, it was relevant and essentially required to be taken on record for the just adjudication of the suit. Albeit, the document was not produced with the written statement of defence yet the learned trial court found it to be relevant and allowed the application. Learned counsel also canvassed that for the same document, the plaintiff was subjected to cross-examine and he was asked questions with regard to the said gift deed executed by Rampal Das in favour of the Kanni Ram and the property in dispute had come in possession of the defendant-respondent no.2 Bhagchand. Learned counsel defended the impugned order and stated that same to be just and proper, which did not justify any intervention.

Having considered the submissions made at the bar and carefully scanned the impugned order, it is pertinent to note that the court asked only one question to the learned counsel for the defendant-respondent no.2 as to whether there was any mention of the gift deed dated 3rd January, 1970 in the written statement of defence. Learned counsel fairly conceded that albeit, there was no mention of this fact in their written statement of defence yet it was relevant for the decision of the suit.

Needless to say that the parties cannot go beyond the pleadings on record. Learned counsel for the respondent no.2 did not make any mention of this document in the written statement of defence nor was it recorded in the list of documents. The whole case hinges on two deeds executed by Kanni Ram at different points of time and both the parties have been relying upon that gift deed executed in one''s favour. The document, which is said to be a gift deed dated 3rd January, 1970 has got bearing with the defence taken by the defendant respondent no.1. There is not even a whisper of the said document in the written statement of defence. Hence, the document cannot be said to be relevant and the learned Judge ought not to have taken the said document on record. Learned trial court is found to have erred in allowing the application filed under Order 8 Rule 1A(3) of CPC at the stage when the case was fixed for hearing final arguments and further when there was no occasion for the defendant to file this document, which was not relevant in the facts and circumstances of the case. The impugned order is not found to be just and proper and the same deserves to be set aside. For the reasons stated above, the writ petition succeeds and the impugned order dated 26th February, 2008 stands set aside.