Kamal Kumar vs Vimla And Others

Jyotsna Rewal Dua, J

Learned Trial Court has dismissed plaintiff’s application moved under Order 7 Rule 14(3) read with Section 151 of Code of Civil Procedure (in short CPC) for producing on record certified copy of mutation and jamabandi. Aggrieved, the plaintiff has preferred the present petition under Article 227 of the Constitution of India.

A Civil Suit for declaration with consequential relief of permanent prohibitory and mandatory injunction in respect of Khasra No.281 was instituted by the petitioner/plaintiff on 07.12.2013. It was inter-alia pleaded that the petitioner/ plaintiff had right to use and enjoy the passage of 0-3 Karam in width and 38 karam in length in the center of Khasra No.281. Written statement was filed on 9. 05.2014. The parties led evidence. The arguments were heard on 27.11.2019. The matter was fixed for pronouncement of the judgment on 26.12.2019. The civil suit was fixed for re-hearing on 22.03.2021, on which date, the petitioner/plaintiff moved an application under Order 7 Rule 14(3) read with Section 151 of CPC seeking permission to produce certified copy of mutation No.276 dated 14.06.1991 and copy of jamabandi of Khasra No.369/281. The respondents/defendants in their reply opposed the payer made in the application. Vide order dated 16.12.2021, learned Trial Court dismissed the application. This order has been impugned in the present petition.

I have heard learned counsel for the parties and gone through the material available on record.

Learned counsel for the petitioner/plaintiff argued that learned Trial Court committed material illegality and grave irregularity in dismissing the application. The fact that documents sought to be produced by the plaintiff were not in his knowledge, was averred in the application itself. The documents in question were the revenue record. The production of the documents would not have caused any prejudice to the respondents/defendants, therefore, the same should have been taken on record. In support of such submissions, learned counsel for the petitioner placed reliance upon the judgments in AIR 2004 Calcutta 225, titled Kejriwal Enterprises Vs. General Manager, Ordnance Factory and others and AIR 1989 Punjab and Haryana 226 titled M/s Preet Cold Storage and Ice Factory and another Vs. M/s United Commercial Ban, Sangol and others.

Defending the impugned order, learned Senior Counsel for the respondents/defendants argued that the application moved by the petitioner/plaintiff under Order 7 Rule 14(3) read with Section 151 CPC did not disclose any cogent reason as to why the documents now sought to be produced could not be produced earlier. There is no explanation in the application as to why the documents were not made part and parcel of the civil suit. It was further argued that the mutation sought to be produced by the petitioner/plaintiff, was stated to have been attested on 14.06.1991, whereas the civil suit was preferred on 07.12.2013. The civil suit pertains to Khasra No.281. The plaintiff had tendered in evidence mutation No.270, pertaining to Khasra No.370/281. It was open to the plaintiff to tender in evidence mutation No.276 and jamabandi pertaining to Khasra No.369/281, at the relevant time. The petitioner/plaintiff cannot be allowed to tender in evidence mutation No.276 and jamabandi of Khasra No.369/281 at this belated stage of suit in his endeavour to remove lacuna in the evidence.

It will be pertinent to take note of following observation made in (2013) 14, SCC1, titled Bagai Constructions Vs Gupta Building Material Store:-

“15. After change of various provisions by way of amendment in CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed d those two applications before the trial court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still e the plaintiff has not placed those bills on record. It further shows that final arguments were heard on a number of times and the judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC.”

In the instant case, the civil suit was filed by the petitioner/plaintiff on 07.12.2013. It pertains to Khasra No.281. Written statement in the civil suit was filed on 09.05.2014. The parties thereafter led evidence. The arguments in the matter were heard on 27.11.2019. The matter thereafter was fixed for pronouncement of judgment on 26.12.2019. It was fixed for re-hearing. On 22.03.2021, when the matter was fixed for re-hearing, an application under Order 7 Rule 14(3) read with Section 151 of CPC was moved by the petitioner/plaintiff. The prayer in the application was confined to the production of certified copy of mutation No.276 dated 14.06.1991 and copy of jamabandi of Khasra No.369/281. The petitioner/plaintiff has not even prayed in the application for tendering in evidence of the additional documents sought to be produced by him. Be that as it may. Mutation No.276 sought to be produced by the petitioner/plaintiff is stated to have been attested as far back as on 14.06.1991. This statedly pertains to Khasra No.369/281. As argued by learned counsel for the respondents, the petitioner/plaintiff has already led evidence in respect of attestation of mutation with respect to Khasra No.370/281. It cannot be believed that plaintiff had no knowledge about attestation of mutation No.276 on 14.06.1991 and the consequent jamabandi w.r.t. Khasra No.369/281.

In the aforesaid background, it was for the petitioner/plaintiff to produce the relevant revenue record at the appropriate time. By simply stating in the application filed in the year 2021 that the petitioner/plaintiff was not a party to mutation No.276 and, therefore, he could not place on record its copy as well as jamabandi pertaining to Khasra No.369/281, at the time of filing of civil suit, will not entitle him to produce these documents at this belated stage. Both sides have already led evidence in the civil suit. It is not petitioner’s case that adequate opportunity to lead evidence was not granted to him. The case had been heard and fixed pronouncement of judgment. It is now fixed for re-hearing. The conduct of the petitioner/plaintiff shows that in the guise of the application, attempt is being made to protract the trial. Allowing petitioner’s prayer at this belated stage of the suit, in the facts and circumstances of the case, would definitely cause prejudice to the respondents/defendants. Parties would then be required to lead additional evidence. Lacunae, if any occurred in the evidence led by the plaintiff cannot be allowed to be plugged in at this stage. The judgments relied upon by learned counsel for the petitioner/plaintiff are not applicable to the facts of the case. The impugned order does not suffer from any infirmity.

Consequently, the present petition is dismissed, so also the pending miscellaneous application(s), if any.