Shiv Kumar Purbey and Others vs Most. Meena Devi and Others

Samarendra Pratap Singh, J.—The defendants-petitioners pray for quashing of the order dated 29.7.2010, passed by the Fast Track Court No. 2, Munger in Title Appeal No. 13 of 2008, whereby the petition dated 16.7.2010 filed by them under Order XLI Rule 27 of the C.P.C. for taking additional evidence has been rejected on the ground that the case of the defendants-petitioners does not meet the requirement of Order XLI Rule 27 and Order 8 Rule 1A of the C.P.C. Before I take up the plea raised by the parties, it would be relevant to notice the facts of the case in brief.

The parties in the suit as well as in this writ application are descendants from a common branch. One Kanhai Purbey had three sons namely Bulakhi Purbey, Khedu Purbey and Badri Purbey. After the death of Kanhai Purbey in the year 1898, as per the petitioners, there was a partition in respect of land measuring 21 decimals pertaining to Khesra No. 887, Khata No. 1 of Mauza-Asarganj in the district of Munger. Badri Purbey got 7 decimals towards his share, whereas the other two brothers remained joint. The cadastral survey made in the year 1908 also records 7 decimals of land in favour of Badri Purbey. It is further case of the petitioners that Badri Purbey from his own business purchased 7 acres 51 decimals of land from Misri Khan vide registered sale deed dated 12.5.1920. The name of Badri Purbey was mutated in the sarista of the landlord and Malguzari receipts too were issued in his name. At the time of vesting, the Zamindar also filed return in the name of Badri Purbey. Badri Purbey began to pay rent to the State of Bihar. Badri Purbey constructed some shops over 7 acres 51 decimals of purchased land. Badri Purbey left behind one son Gulab Purbey, who died leaving behind five sons all of whom are petitioners in this case.

The other brother of Badri Purbey, namely Khedu Purbey died leaving behind one son Masru Purbey who died leaving behind one son Mahavir Purbey. Mahavir Purbey had nine sons and daughters in total, including Shankar Purbey who had died. The other daughters and sons of Mahavir Purbey have been arrayed as respondent nos. 8 to 15 to this writ application. The heirs of late Shankar Purbey have been arrayed as respondent nos. 1 to 7 to this writ application.

On request of Mahavir Purbey and his son Shankar Purbey, late Gulab Purbey son of Badri Purbey lent one shop each on rent to them.

As Mahavir Purbey and Shankar Purbey did not pay rent, Title Eviction Suit Nos. 26/75 and 27/75 was filed which was decreed. Mahavir Purbey and Shankar Purbey preferred separate appeals being Appeal Nos. 38/82 and 39/82, which too were dismissed. Gulab Purbey also filed Money Suit No. 13/78 and Money Suit No. 2/81 against Mahavir Purbey for recovery of arrears of rent, which too were decreed. Copies of the judgments and decrees have been annexed as Annexures-3, 3A, 4, 4A, 5 and 5A to the writ application.

Mahavir Purbey filed Title Suit No. 8/80 claiming share in the land measuring 7 acres 51 decimals, purchased by late Badri Purbey, which got dismissed. After death of Mahavir Purbey on 30.11.1991, his sons including Shankar Purbey by sup-pressing material facts filed Title Suit No. 123/2000 against the petitioners for share in 7 acres 51 decimals of land. The petitioners appeared and filed written statement stating that the suit has been filed by making mis-statement and suppression of material facts. During the pendency of the suit, Shankar Purbey expired, and his legal heirs, who are respondent nos. 1 to 7 in this writ application, were substituted. A copy of the plaint of Title Suit No. 123 of 2000 has been annexed at Annexure-6.

As per the petitioners, after filing of the written statements, the respondents finding themselves in tight and no win situation assured them that they would not proceed with the suit. On the assurance of the respondents, the petitioners left pairvi in the suit. The petitioners subsequently learnt that respondents surreptitiously proceeded with the suit which was ultimately decreed on 13.2.2007. A copy of judgment and decree dated 3.7.2007 are annexed as Annexures-7 and 7A to the writ application.

The petitioners state that on coming to know about the fraudulent conduct of the respondents, they preferred an appeal being S.T.A. No. 13 of 2008 with a prayer for condonation of delay which was allowed.

The petitioners state that as they could not participate in the hearing of the suit on misrepresentation of the respondents, they filed a list on 3.7.2010 with all documents. The petitioners on 3.7.2010 itself filed a petition under Order XLI Rule 27 C.P.C. for taking those documents as additional evidence in the appeal. The prayer of the petitioners was rejected which is under challenge.

The petitioners state that the trial court ought to have allowed additional evidence in view of Order XLI Rule 27(1)(b) as the documents were necessary for coming to just decision. The petitioners state that umpteen documents of unimpeachable character, including orders, judgments and decrees passed against Mahavir Purbey and Shankar Purbey would easily clinch the case of the petitioners in the appeal. Order XLI Rule 27(1)(b) on which the petitioner has placed reliance is quoted hereinbelow:--

Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if--

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of the diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to produce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

The plaintiffs-respondents controvert the submissions of the petitioners that they assured the later that they would not proceed with the Title Suit No. 123 of 2000. They state that it is not a case that the petitioners were not in know-how of these documents and they were not been able to produce the same despite due diligence. The Appellate Court accepted the contention of the plaintiffs-respondents and rejected the prayer of the petitioners for additional evidence on the ground that the same is barred under Order VIII Rule 1A of C.P.C. which is quoted hereinbelow:--

Order VIII Rule 1-A.:1-A Duty of defendant to produce documents upon which relief is claimed or relied upon by him.--(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

(3) A document which sought 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 evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents--

(a) produced for the cross-examined of the plaintiff''s witnesses, or

(b) handed over to a witness merely to refresh his memory.

The plaintiffs-respondents state that even as per the Order 13 Rule 1 C.P.C., the documents are to be produced before the settlement of issues. Order 13 Rule 1 is quoted hereinbelow:--

Original documents to be produced at or before the settlement of issues.--(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.

(2) The Court shall receive the documents so produced:

Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

(3) Nothing in sub-rule (1) shall apply to documents--

(a) produced for the cross-examination of the witness of the other party; or

(b) handed over to a witness merely to refresh his memory.

The plaintiffs-respondents have placed reliance upon decisions in the case of Smt. Pramod Kumari Bhatia Vs. Om Prakash Bhatia and Others, and in the case reported in Koyappathodi M. Ayisha Umma Vs. State of Kerala, in support of their submissions. There cannot be any dispute to the propositions laid by Hon''ble Apex Court that cardinal rule is that documents would not be generally accepted after filing of written statement or after settlement of issues.

The issue is whether the trial court erred in rejecting the prayer of the defendants-petitioners for adducing additional evidence. Generally production of additional documents is barred after settlement of issues, but the provision is not in absolute terms. Sub-section 1(b) of Order 41 Rule 27 confers power on the court to accept the documents if it is necessary for effectively doing justice between the parties. The Court has to be cautious in granting such indulgence which is to be granted in exceptional circumstances. In case, the parties have obtained decree of partition by playing fraud and misrepresentation, the court can always permit filing of additional documents in the interest of justice to enable it to pronounce judgment effectively, justly and conclusively.

In the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, , the Hon''ble Apex Court was considering a case where one of the parties obtained preliminary decree for partition of suit though it had already executed sale deed in respect of the suit property in favour of his employer, prior to filing of the suit. The Hon''ble Apex Court after examining the issues observed that holding of vital documents relevant for decision is a fraud, on which score alone, the case can be thrown out at any stage. In case of Shyam Gopal Bindal and Others Vs. Land Acquisition Officer and Another, , the Hon''ble Apex Court observed that the trial court and the High Court erred in not allowing production of documents as additional evidence at later stage, as it was necessary for just decision of the case. Even sub-rule 3 of Order VIII Rule 1-A, upon which the respondents have placed reliance permits production of documents with the leave of the court even at subsequent stage.

In the instant case the writ petitioners have successfully won Eviction Suits in respect of shops constructed on the purchased land against the ancestors of respondents who lost not only the suits, but appeals also. The aforesaid facts prima facie shows that the petitioners are landlord of the suit premises. Further-more, a title suit in respect of the said suit land brought by Mahavir Purbey, the ancestor of respondents too got dismissed on account of non-prosecution. Shankar Purbey son of late Mahabir Purbey has brought a fresh suit in respect of same properties without disclosing all material facts. The petitioners have claimed that the sale deed is in the name of their ancestor Badri Purbey, in whose favour both revenue receipts as well as rent receipts have been issued, both by Ex-Zamindar and State of Bihar. The name of ancestor of petitioners was also mutated in the revenue records. The case of the petitioners is that on misrepresentation of the plaintiff-respondents, they left pairvi in the suit after filing of the written statement, which borders on falsehood.

The plea of the petitioners has some substance as no reasonable man in possession of such documents would not produce them, but for possible misrepresentation, which can be examined in detail only at the stage of hearing of the suit. In such circumstances, benefit of doubt leans in favour of petitioners and the trial court ought to have allowed the defendants-petitioners to produce the documents and accept the same as additional evidence, which would enable it to pronounce judgment effectively and conclusively. In the result, this writ application is allowed. The impugned order dated 29.7.2010 passed by the Fast Track Court No. 2, Munger in Title Appeal No. 13 of 2008 is set aside and the trial court is directed to accept the documents of the petitioners as additional documents.