Surti and Others vs Sanjhala Manjhi and Others

S. Chandrashekhar, J.—Challenging order dated 03.06.2014 whereby petition dated 03.05.2014 filed by the defendants in P.S. No. 124 of 2010 has been rejected, the present writ petition has been filed.

The brief facts of the case are that, P.S. No. 124 of 2010 was filed seeking a decree of partition claiming 3/4th share in Schedule "B" property. The claim of the plaintiffs is for the land comprised in Khata No. 78 consisted of 17 plots, total area 10.76 acres recorded in the name of Mangar Manjhi, Hopan Manjhi, Chunu Mandjhi and Manjhiya Manjhi. It is stated that during their lifetime the ancestors of the recorded tenants were joint for all purposes and after the death of their ancestors, the plaintiffs came in possession over the Schedule "B" land. The defendants appeared in the Partition Suit and filed written statement on 05.10.2010. Thereafter, the defendants filed documents on 12.07.2011. After the plaintiffs closed their evidence, application dated 03.05.2014 was filed seeking leave of the court for bringing a Hukumnama and rent receipts on record of P.S. No. 124 of 2010. As noticed above, the said application has been dismissed vide order dated 03.06.2014. Aggrieved the petitioners have approached this Court.

Heard the learned counsel for the petitioners.

The learned counsel for the petitioners submits that, in the written statement a specific case has been set up by the defendants that the land comprised in G.M. Plot No. 625 under old cadastral survey Khata No. 94 in village Bali was settled in favour of one Mangar Manjhi by the ex-landlord and the said Mangar Manjhi came in possession over the same. After filing the written statement, the petitioners left the Hukumnama and the rent receipts in the office of the advocate namely, M.I. Jabery and they could not collect it however, after the plaintiffs'' evidence was closed, the defendants realised their mistake and accordingly, application dated 03.05.2014 was filed. Relying on the decisions in Narain Prasad Aggarwal (D) by LRs. Vs. State of M.P., and Ganesh Sahu and Another Vs. Dwarika Sao and Others--> , the learned counsel for the petitioners submits that, whenever issue as to lack of pleadings is raised it is not the form of pleadings, rather the substance of pleading, which has to be seen. It has been held that the pleadings should not be construed in a narrow manner rather, a liberal approach should be adopted by the court. The learned counsel for the petitioners refers to judgment in Bipin Shantilal Panchal Vs. State of Gujarat and Another, to submits that, the admissibility, genuineness and relevancy of a document can be tested at the final hearing and at this stage when the defendants are yet to lead evidence, they should not be precluded from bringing on record a document which would be necessary for deciding the issue involved in P.S. No. 124 of 2010.

From the written statement filed by the defendants it appears that the defendants took a plea that settlement with respect to 14.63 acres land by the ex-landlord was in favour of one Mangar Manjhi and the said Mangar Manjhi came in possession over the same. A settlement can be by a written document or it can be an oral settlement also. In paragraph No. 12 of the written statement the defendants have not disclosed the nature of settlement. It is common knowledge that a settlement can be by way of a Hukumnama, registered or unregistered and by way of an indenture of settlement. In paragraph No. 12 of the written statement the defendants have not disclosed the date of settlement besides, averring that the settlement took place through a Sada Hukumnama executed by the ex-landlords. It appears from the materials on record that the defendants had already filed documents on 12.07.2011 and after the plaintiffs closed their evidence, application dated 03.05.2014 was filed. The plea taken by the petitioners that they had left the Hukumnama and the rent receipts in the office of the advocate has been rightly disbelieved by the trial court. It is not the case of the petitioners that Hukumnama and rent receipts are mentioned in list of documents filed by the defendants in P.S. No. 124 of 2010. Referring to decision in Bipin Shantilal Panchal Vs. State of Gujarat and Another, , I find that the said decision is not relevant for the present purpose. At this stage, the trial court was required to examine whether the documents as sought by the defendants should be taken on record or not. In the impugned order dated 03.06.2014 the trial court has not endeavored to examine the genuineness or admissibility of the documents. Referring to the contention raised on behalf of the petitioners that it is the substance of the pleadings and not the form which should be considered by the trial court, I find that in view of specific stand taken by the defendants in written statement, they have rightly not been permitted to bring the Hukumnama and rent receipts on record. In Ram Sarup Gupta (Dead) by Lrs. Vs. Bishun Narain Inter College and Others, a decision on which the learned counsel for the petitioners has relied, the Hon''ble Supreme Court has held that,

"The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the license was irrevocable as contemplated by S. 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad Vs. Shri Chandramaul, a Constitution Bench of this Court considering this question observed:

"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another." 6. I find no infirmity in the impugned order dated 03.06.2014 and accordingly, the writ petition is dismissed.