K. Sathyanarayana and Others vs K.V. Sathyamurthy and Others

B. Manohar, J.—These two set of writ petitions are directed against the common order dated 25th October 2014 made on I.A. Nos. 23 to 25 and I.A. Nos. 20 to 22 seeking for reopening the case, recalling the evidence of plaintiffs and production of original documents.

Petitioners in W.P. Nos. 45379-45381/2014 are defendants 3 to 15 and petitioner in W.P. No. 42092/2014 & W.P. Nos. 42154-155/2014 is defendant No. 17.

Respondents 1 to 10 herein in both the set of writ petitions filed the suit seeking for partition and separate possession of 1/6th share and for other reliefs. The plaintiffs and defendants 1 to 15 are the members of the joint family. The defendants entered appearance and filed the written statement. On the basis of the pleadings of the parties, the Trial Court framed necessary issues. The parties have lead evidence. During the course of trial, many applications have been filed for amendment of the plaint and for production of documents. One such set of applications has been filed by the plaintiffs in I.A. Nos. 14, 15, 16 and 19. The Trial Court rejected those applications. Being aggrieved by the said order, the plaintiffs filed W.P. No. 37896/2002 and other connected matters. This court dismissed those writ petitions by its order dated 1st April 2014 with a direction to the Trial Court to conclude trial by following the procedure prescribed under the proviso to sub-Rule (2) of Rule 1 of Order 17 of CPC, on day to day basis, and if any adjournment to be given beyond a day''s time, as required under law it shall be on payment of cost of not less than Rs. 1,000/- per day. On the basis of the direction issued by this Court, the parties have lead their evidence. Defendant No. 8 was examined as D.W.1 and defendant No. 17 was examined as D.W.2.

On conclusion of the trial, the matter was posted for arguments. At that stage, two set of applications in I.A. Nos. 23-25 and I.A. Nos. 20-22 are filed by defendants 3 to 15 and defendant No. 17 respectively, for reopening the case, to lead additional evidence and for production of original partition deed dated 1-1-1928 and the original sale deed dated 9-12-1928 contending that production of original documents is very much required. In the suit, they have produced the certified copy of the documents and they are marked. However, during the course of trial, the said documents were not available. Subsequent to the evidence of parties, the defendants could trace the said documents and hence they sought permission to produce those documents. Hence, defendants 3 to 15 filed I.A. Nos. 23 to 25 seeking to produce the original partition deed dated 1-1-1928 and defendant No. 17 filed I.A. Nos. 20-22 seeking to produce the original sale deed dated 9-12-1928, as per which, he purchased the suit schedule property along with two other documents. The Trial Court after considering the matter in detail and taking into consideration the earlier order passed by this court in W.P. No. 37896/2012 and other connected matters and further taking note of the judgment of the Hon''ble Supreme Court dismissed those applications on the ground that after a lapse of 2 1/2 years, the documents are sought to be produced and the same cannot be accepted. Being aggrieved by the order passed by the Trial Court, these two set of writ petitions have been filed.

Sri. C.M. Nagabhushan, learned counsel appearing for the petitioners in W.P. Nos. 45379-381/2014 submits that these petitions are filed by defendants 3 to 15, being aggrieved by the rejection of I.A. Nos. 23 to 25. Sri. V.B. Shivakumar, learned counsel appearing for the petitioner in W.P. Nos. 42092/2014 & W.P. Nos. 42154-155/2014 submits that these petitions are filed by defendant No. 17 being aggrieved by the rejection of I.A. Nos. 20-22. At the stage of preliminary hearing of the matter, a submission has been made in W.P. No. 45379-381/2014 that their prayer in the writ petitions is limited only for production of original partition deed dated 1-1-1928 without reopening the matter and without examining the witnesses. The specific case of the defendants 3 to 15 is that they have produced the certified copy of the partition deed. However, during the course of trial, the original partition deed was not available with them, they produced the certified copy of the same. Subsequently, they could trace the original partition deed in their factory which was under lock-out for some time. Though they sought for other reliefs, they confined their prayer only with respect to production of original partition deed dated 1-1-1928, the certified copy of which has been marked as Ex. D1. Insofar as defendant No. 17 is concerned, he wants to produce the original sale deed dated 9-12-1928. Due to his age factor and suffering from lack of memory, he could not produce the original sale deed during the course of trial. However, the certified copy of the sale deed has been produced and already been marked in his evidence. He wanted to produce the original sale deed along with other two documents. The Trial Court has not taken into consideration the contention of the petitioners in proper perspective. Without application of mind, only on the ground that in the earlier writ petitions, this court had issued direction to dispose of the matter on day to day basis, the Trial Court had rejected the applications. Hence, both the counsel sought for allowing the writ petitions by setting aside the order passed by the Trial Court on I.A. Nos. 23 to 25 and I.A. Nos. 20 to 22.

On the other hand, Sri. Vivek Reddy, learned Senior Counsel appearing for Sri. A.P. Pulakeshi appearing for respondents 1 to 10 argued in support of the order passed by the Trial Court and contended that when the case was posted for arguments, two set of applications were filed for reopening the case and production of documents. The Hon''ble Supreme Court in a judgment reported in Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store, while interpreting the scope and ambit of Order XVIII Rule 17 of CPC held that Order XVIII Rule 17 of CPC shall be exercised sparingly. Reopening of the case and recalling the witnesses at the belated stage cannot be allowed and power has to be exercised not as a general rule on the ground that recalling and reexamination would not cause any prejudice to the parties. That is not the scheme and intent of the Order XVIII Rule 17 of CPC. In the instant case, when the case was posted for arguments, these two set of applications have been filed. Further, the original documents ought to have been produced along with the suit or at the time of filing the list of witnesses and documents or at the time of examining the witnesses. The 8th defendant was examined as D.W.1, he got marked the certified copy of the partition deed Ex. D1. However, he has not produced the original partition deed. Only after a lapse of 2 1/2 years of completion of evidence, that too when the case was posted for arguments, the applications were filed to produce the said document contending that the said document was not available with them. The same was traced in their factory which was under lock-out for a long period. The document cannot be received at any stage of proceedings. The Code of Civil Procedure provides for stages of production of documents. Apart from that, 17th defendant in his cross-examination has admitted that he is in possession of the original sale deed dated 9-12-1928 but he cannot produce the same immediately. When the person is having the original document during the evidence, nothing prevented him to produce the same. When the original document is available with the defendant and they produced only the certified copy of the said document, at the fag end of the trial, he cannot make an application to produce the same. Further, this Court in W.P. Nos. 37896/2012 and other connected matters, while dismissing the petitions issued a direction to the Trial Court to complete the trial by following the procedure prescribed under the proviso of sub-Rule(2) of Rule(1 ) of Order 17 of CPC on day to day basis. Hence, it is not open to the defendants/petitioners to file these applications. The Trial Court taking into consideration all these aspects of the matter has rightly rejected the applications and the same is not liable to be interfered with by this court. Hence, sought for dismissal of the writ petitions.

I have carefully considered the arguments addressed by the learned counsel for the parties, perused the order impugned and other relevant records.

The records clearly disclose that the plaintiffs had filed a suit seeking for partition and separate possession of the joint family properties claiming that they are the coparceners of the joint family properties. Issues have been framed and the parties have already lead their evidence. Pursuant to the direction issued by this Court in W.P. No. 37896/2012 and other connected matters, the parties were examined. When the case was posted for argument, defendants 3 to 15 filed I.A. Nos. 23 to 25 seeking permission to produce the original partition deed dated 1-1-1928. In the said applications, it was stated that the certified copy of the said partition deed has already been produced and marked. Subsequent to the trial, they could trace the original partition deed and it is a vital document to prove their case that there was partition in the year 1928 itself. Apart from that, certified copy of the same has been produced and marked as Ex. D1. Now they are relying upon the original partition deed. Production of original partition deed will not affect the case of the plaintiffs.

Defendant No. 17 filed I.A. Nos. 20 to 22 stating that on the basis of partition deed dated 1-1-1928, he had purchased the suit schedule property from the ancestors of the plaintiffs as per the registered sale deed dated 09-12-1928. However, certified copy of the said document has been produced and marked while filing the written statement. Since defendant No. 17 is suffering from lack of memory and due to his advanced age, he could not produce the original sale deed. He seeks to produce the original sale deed by filing these applications. The contesting parties filed objections to the said applications contending that at this belated stage, the applications filed by defendant No. 17 cannot be acceptable. The Trial Court has rightly rejected the applications on the ground that the case is posted for arguments and at this stage, the documents cannot be accepted and issue cannot be reopened since there is a direction from this Court to dispose of the matter on day to day basis.

Sri. C.M. Nagabushan, learned counsel appearing for the petitioners in the first set of writ petitions submits that though the applications are filed for reopening of the case, recalling the witness and production of documents, they would confine their prayer only for production of original partition deed dated 01-01-1928. The certified copy of the said document has already been marked and they do not want to lead any further evidence except producing the original partition deed. He submits that the partition deed of the year 1928 is very much necessary and the plaintiffs cannot take advantage of the certified copy of the same. To be on the safer side, he wants to produce the original partition deed and the court has got power to accept the document even at the last stage of proceedings. The original document sought to be produced is a necessary document to meet the ends of justice. The court can accept the said document.

Sri. V.B. Shivakumar, learned counsel appearing for the petitioner in the second set of writ petitions also submits that he would confine his prayer only for production of original sale deed dated 9-12-1928 and he also do not want to lead any further evidence except production of original sale deed.

On considering the arguments of the learned counsel for the parties, the only point that arises for consideration is as to whether the petitioners can be permitted to produce the original partition deed dated 1-1-1928 and original sale deed dated 9-12-1928.

The Hon''ble Supreme Court in a judgment reported in Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store, though laid down a law interpreting Order XVIII Rule 17 of CPC, held that if the said provision is invoked in a routine manner, it will defeat the very purpose of amendment of CPC and in exceptional cases, the court can accept the documents. In the instant case, though defendants 3 to 15 and 17 filed the applications for reopening the case, recalling the witness, they confine their prayer only for production of original partition deed and original sale deed without leading further evidence. If the petitioners are permitted to produce the said documents without leading any further evidence, an opportunity can be given to the respondents herein to cross-examine the petitioners herein with respect to the original partition deed and the original sale deed sought to be produced, while marking them. As stated earlier, the certified copies of those two documents have already been produced and marked. At this stage, they want to produce the originals of the said documents. On technicalities, the production of original documents cannot be rejected. It is open to the respondents herein to cross-examine the witnesses while marking the said documents. The Hon''ble Supreme Court in judgments regard to above has held that it is for the satisfaction of the court to see that in the interest of justice, the parties can be permitted to produce the documents at subsequent stage also. Where the application is found to be bonafide, and the court is satisfied that non production of documents earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. However, if the application is found to be mischievous, or frivolous or to cover up the lacunae, it should be rejected. Order VIII Rule 1-A(3) of CPC contemplates that a document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in the evidence on his behalf at the stage of hearing of the suit. At any stages of the proceedings, if the court feels that a particular document is very much necessary for adjudication of the dispute, the court can permit the parties to produce the documents. There is no bar under Order VIII Rule 1-A(3) of CPC. In view of that, the petitioners had to succeed in part. Accordingly, I pass the following:

ORDER

"The writ petitions are allowed in part. Order dated the 25.8.2014 made in O.S. No. 2640/2004 is quashed. Petitioners are permitted to produce the original partition deed dated 1-1-1928 and the original sale deed dated 9-12-1928 and they are not permitted to lead any further evidence. However, the respondents herein can cross-examine the petitioners while marking those two documents and that will meet the ends of justice."