Mikail Murmu vs Chandrai Hembram And Ors

Heard Mr. Rajiv Sinha, learned counsel for the petitioner and Mr. Rajeeva Sharma, learned senior counsel appearing for the respondent nos. 1 to 4.

In this writ application, the petitioner has prayed for setting aside the order dated 10.09.2013 passed by the learned Senior Civil Judge II, Dumka in Title Suit No. 50/1998, by which the application of the petitioner seeking leave of the Court to receive the relevant document of Deed of Gharjamai and rent receipt has been rejected.

The factual aspects of the case as enumerated by the writ petitioner reveal that the petitioner/plaintiff no. 1 along with his wife Merry Nila Kisku, Plaintiff no. 2 had filed Title Suit No. 15/1998 seeking a declaration that the plaintiff no. 1 has been married in Gharjamai form with the plaintiff no. 2 according to Santhal Customs and rites.

The plaintiff's case is that Salomi Hembram, defendant no. 1 (since deceased) was married in Gharjamai form with Nathanial Kisku from whom they have five daughters but no son. The said Nathanial Kisku died leaving behind the deceased defendant no. 1, Salomi Hemberam. The plaintiff no. 2 Merry Nila Kisku was married with the plaintiff no. 1/petitioner in Gharjamai form as per the Santhal Customs and in favour of which Salomi Hembram had executed a Gharjamai Deed in presence of the villagers.

A written statement was filed by the defendant nos. 1 and 3 to 5 in which there was a denial with respect to a Gharjamai form of marriage of the plaintiff no. 1 with the plaintiff no. 2 and it was asserted that the defendant no. 1 had never executed any Deed of Gharjamai in favour of the plaintiff no. 1 and any such deed is false, fabricated and forged.

During the pendency of the suit the defendant no. 1 Salomi Hemberam died and her name was deleted from the cause title vide order dated 23.02.2013 and the case was fixed for argument on 25.02.2013. On 25.02.2013 a leave application was filed for receiving a public document which was heard and allowed and parcha of Gantzer settlement of Haripur Mouza No. 45 was received and marked as exhibit 4. On 25.02.2013 itself the argument of the plaintiff was heard in part and it was fixed on 27.02.2013 on which date the learned Presiding Officer had directed the plaintiff/petitioner to complete his argument on 6th and 7th March, 2013 or to file a written argument.

On 02.03.2013 an application was preferred by the plaintiff no. 1/petitioner seeking leave of the Court to file Gharjamai marriage papers and rent receipts of J.B. No. 6, showing payment of rent by the plaintiff no. 2. The reason for the delay as stated in the said petition is that the documents were in possession of the plaintiff's wife who happens to be a primary teacher in a Government school and on transfer she had taken away all her belongings and the said document could not be traced out as the plaintiff no. 1/petitioner remained in the house of the defendant no.

It is said that on search the documents were recently found and as such the same be received by the Court on grant of leave. Further assertion has been made in the said petition that the documents are necessary for arriving at a just decision in the case.

A rejoinder was filed by the defendant/ respondent on 06.03.2013 in which it was stated that the application which was filed was at a belated stage when the petitioner/plaintiff no. 1 was directed to complete the oral argument and accordingly it was prayed that the application dated 02.03.2013 be rejected.

On 10.09.2013 the learned court below had passed the impugned order in which the petition dated 2. 03.2013 filed by the plaintiffs was rejected.

It has been submitted by Mr. Rajiv Sinha, learned counsel for the petitioner that execution of the Deed of Gharjamai had already been mentioned in para 16 of the plaint and therefore seeking leave of the court to submit the relevant document was a consequence of the averments made in the plaint and it never introduced a new case on behalf of the plaintiffs. It has been submitted that once the document is brought on record the right of rebuttal always rests with the defendants. Mr. Sinha, further submits that the suit itself was pending for hearing for several months on account of transfer of the Presiding Officer and yet the court below rejected the application of the petitioner on the ground of delay. It has further been stated that the application under Order VI Rule 17 CPC contained the reasons which led to the delay in filing the application. Learned counsel has also referred to the case of "Lakshmi & Anr. versus Chinnammal @ Rayyammal & Ors." reported in 2009 3 JCR (SC) 90 and "Kailash versus Nanhku and Others" reported in (2005) 4 SCC 480.

Mr. Rajeeva Sharma, Learned senior counsel appearing for the respondent nos. 1 to 4 has stated that the application for leave was filed when the suit was posted for judgment. It has been stated that para 16 of the plaint is itself vague as it does not state the date and year of the execution of the sada Gharjamai paper. Learned senior counsel further submits that neither any date nor the year of transfer of the wife of petitioner/plaintiff no. 1 has been mentioned and nothing has been stated as to when the sada Gharjamai paper was traced out or recovered. It has further been submitted that the application which has been preferred by the petitioner under Order VII Rule 14 CPC appears to be after 15 years without there being a reasonable explanation for such delay. While referring to Order VII Rule 14 CPC it has been stated that the said provision envisages that the plaintiffs must give a list of the documents along with the plaint but in the present case save and except making a vague statement regarding existence of the Deed of Gharjamai the plaintiffs had kept silent for 15 years and have come up with a flimsy excuse seeking leave of the court to file the Gharjamai marriage papers.

The petitioner has sought to back up his leave application while stating that the existence of the Deed of Gharjamai is reflected in para 16 of the plaint. Para 16 of the plaint reads as follows:

"That thereafter the defendant no. 1 executed a Gharjamai deed in favour of the plaintiff no. 1 in presence of the villagers and village officials." Therefore the Deed of Gharjamai seems to be the back bone of the case of the petitioner. As per Order VII Rule 14 CPC the plaintiff is required to enter the documents he is relying upon in a list and shall produce it in a court when the plaint is presented by him and shall at the same time deliver the documents and a copy thereof to be filed with the plaint. Order VII Rule 14(3) CPC safeguards the plaintiff when the plaintiff does not enter the document in the list produced when the plaint is presented by permitting the plaintiff to take leave of the court. The plaintiff except giving a bare reference about the purported Deed of Gharjamai executed by the defendant no. 1 has stated nothing about the details of such execution. Even in the application seeking leave the plaintiff no. 1/petitioner has failed to give a satisfactory explanation regarding the Deed of Gharjamai. The learned Court below was right in coming to the conclusion that once the application for leave is allowed the further process would lead to a de novo trial.

Mr. Rajiv Sinha, learned counsel for the petitioner has referred to the case of "Lakshmi & Anr. versus Chinnammal @ Rayyammal & Ors." reported in 2009 3 JCR (SC) 90, wherein interpretation was made of Order XIII Rule 10 CPC. The factual aspects of the said case is entirely different from the present case. The report of the finger print expert was available and the plaintiff had furnished the requisite particulars. The following paragraph had been relied upon by Mr. Sinha in support of his case.

"12. If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court's duty being to find out the truth. The procedural mechanics necessary to arrive at a just decision must be encouraged. We are not unmindful of the fact that the court in the said process would not encourage any fishing enquiry. It would also not assist a party in procuring a document which he should have himself filed."

In the present case as has been stated above vague assertions have been made about the existence of the Deed of Gharjamai in para 16 of the plaint. If the document was in existence when the plaint was filed the plaintiff should have filed the same in the list of documents accompanying the plaint. It is manifest from the application for leave that the same was filed in a casual manner as apart from the provisions of law being wrongly mentioned reference has been made of para 7 of the plaint regarding the Deed of Gharjamai but para 7 of the plaint reveals otherwise.

In the case of "Kailash versus Nanhku and Others" reported in (2005) 4 SCC 480, which has also been relied upon by the learned counsel for the petitioner it has been held as follows:

"28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar are pertinent: (SCC p. 777, paras 5-6)

"The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.

The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. ... Justice is the goal of jurisprudence - processual, as much as substantive."

Justice would falter if such application of the plaintiff is allowed. For 15 long years the plaintiffs straddled as observants and only when the suit was fixed for judgment the application for leave was preferred. In the background facts and circumstances of the present case the judgments relied upon by the learned counsel for the petitioner is of no help. The delay in filing the application for leave, the manner and contents of the application which are vague in nature and absence of there being any suitable explanation for the delay cannot compel this Court to interfere with the impugned order dated 10.09.2013.

This writ application in view of the aforesaid stands dismissed.