Shaniram Vishwakarma vs Murlidhar

U. C. Maheshwari, J.—Heard. The petitioner/defendant has filed this petition under Article 227 of the Constitution of India, being aggrieved by the order dated 2.8.2011 (Annexure-P-9) passed by IIIrd Civil Judge Class-I Chhindwara, whereby his applications (i) filed under Order 7 Rule 1A (3) of the CPC for taking the annexed documents on record and (ii) an application filed under Order 26 Rule 9 of CPC for appointment of Commissioner to call the Commissioner Report of the disputed site, have been dismissed.

Petitioner''s counsel after taking me through the impugned order along with the papers placed on the record argued that, the documents filed along with aforesaid earlier application were relevant and most of them were rent receipts which have been issued by the respondent and the same were necessary to prove the factum of possession of the petitioner over the property and some of the documents were certified copies of the public record like trace map, Khasara record, but contrary to the settled proposition by dismissing the aforesaid application, such documents were not taken on record by the trial Court. So far as dismissal of the other application is concerned, he said that looking to the nature of the dispute raised in the plaint and denied by the petitioner, the Commissioner''s report is necessary in the matter to evaluate the evidence lead by the parties. But such application has also been dismissed under the wrong premises and prayed for allowing the aforesaid both the applications by admitting and allowing this petition.

On the other hand Shri Jaideep Sirpurkar, learned counsel for the respondent by justifying the impugned order said that the same being based on proper appreciation of the available factual matrix and the legal position, do not require any interference at this stage and prayed for dismissal of this petition.

Having heard the counsel, I have carefully gone through the impugned order as well as the averments of the applications. It is undisputed fact that the impugned suit was filed by the respondents in the year 2009 and the written statement was filed by the petitioner in the same year. Along with the written statement inspite having the knowledge of the aforesaid documents, the same were not filed. Subsequently, after framing the issues when the case was fixed for settling the issues on such date also the documents were not filed and even at the time of examination of the respondent/plaintiff witnesses, none of such documents were produced in the cross-examination of the such witnesses and only after closing the evidence of the respondent/plaintiff, such documents have been filed. Mere perusal of such documents, it is apparent that those documents were very well in existence/knowledge of the petitioner even on the date of filing the written statement. So in such premises, whatsoever cause stated in the application for submitting such documents at belated stage, does not appear to be sufficient and with that approach, the impugned order has been passed.

I am of the considered view that the documents which can be proved before the Court by examining the witnesses could not be taken on record unless sufficient cause is shown by the petitioner for non production of the same at earlier stages, but the documents which are certified copies of the public documents could not be refused from taking the same on record because party has a right to file such documents even without any application at any stage of the matter. Although, the admissibility and relevancy of such documents could be considered by the Court. So in such premises, the certified copy of the public documents filed with the impugned application under Order 7 Rule 1A(3) of CPC are taken on record. Till this extent, the findings of the trial Court is modified while till the extend of remaining documents, the findings of the trial Court is hereby affirmed.

So far as dismissal of the application of the petitioner filed under Order 26 Rule 9 of the CPC is concerned, in the available circumstances, I am of the considered view that at the stage of recording the evidence of the parties, no party could be permitted to use the Court an agency to collect the evidence in support of his case. In such premises, the approach of the trial Court does not appears to be contrary to the facts and circumstances of the case as well as the existing legal position.

However, it is observed that after recording the evidence of both the parties, if any ambiguity in such evidence is pointed out by either of the parties by way of any application, then the prayer for appointment of Commission to inspect the spot and submit the Commissioner''s report shall be considered by the trial Court on its own merit at that stage. Such Court shall pass the order on such application without influencing from any observation or the findings given by such Court in the order impugned or by this Court in the present order.

Accordingly this petition is allowed in part as indicated above. Certified copy as per rules.