Case Number: OS/1132/2014
Parties: K. Sasvitramma versus 1.Ommi Apparao
Order Number: 1
Filing Date: Tue, 08 Jul 2014
Order Date: Fri, 28 Feb 2025
Order Description: IA ORDER
Status: OS
Stage: FOR ARGUMENTS
Between :
... Petitioners/ Plaintiffs
A n d
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... Petitioners/ Plaintiffs
A n d
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These three Petitions have come up for final hearing before me on 28.01.2025 in the presence of Sri G.T.V.Malleswara Rao, Sri G.Narasinga Rao, learned Counsels for Petitioners/Plaintiffs and of Ch.Archana, Learned Counsel for Respondent No.1/Defendant No.1, Sri V.V.Ramana Prasad, Learned Counsel for Respondents No.2 and 3/Defendants No.2 and 3 and upon hearing both sides, considering the material available on record, having stood over the matter for consideration till this day, the Court delivered the following:
The Plaintiffs have filed IA.788/2024 Under Order VII Rule 14(3) of CPC praying the Court to grant leave and receive the following documents and mark the same as exhibits on their behalf, in the interest of justice.
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| 1 | 12.08.1954 | Original Sale Deed Doc.No.1618/1954 |
|---|---|---|
| 2 | 13.03.2013 | Original Sale Deed Doc.No.1181/2013 |
2. The Petitioners/Plaintiffs have filed IA.789/2024 Under Order XVIII Rule 17 of CPC to recall PW-1 for marking of documents, in the interest of justice.
3. The Petition in IA.790/2024 has been filed by the Petitioners/Plaintiffs Under Section 151 of CPC to reopen the matter for receiving documents and mark the same as exhibits, in the interest of justice.
The Petitioners/Plaintiffs have filed the main Suit against the Respondents/Defendants for Permanent Injunction and it is at the stage of arguments. While filing the Suit, the Petitioners/Plaintiffs could not file the documents due to non-availability of Original Documents. The above documents were not marked as only photostat copies were available at the time of recording the evidence of PW-1. Those documents are very essential documents to prove the case of the Petitioners/Plaintiffs.
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4.2 As the 3rd Petitioner/3rd Plaintiff was not feeling well and unable to come out from home, he could not attend before the Court on 19.10.2023, as there is no representation before the Court, this Court closed the evidence. Non-filing of those documents along with the Suit is neither willful nor deliberate but for the reason as stated above. Hence, the Petitions.
The Respondents/Defendants 2 & 3 have filed Common Counter and the 1st Respondent/1st Defendant adopted the same. The Respondents/Defendants have denied the material contents of the affidavit annexed to the Petition. From the beginning, the contest of the Respondents/ Defendants is that the property of the Petitioners/Plaintiffs is different to that of their property. In the cross-examination of both sides, it was recorded by the Court. So, there is no need to place the documents when once the fact is admitted or proved by the parties. The Suit is coming for arguments and long back the Petitioners/Plaintiffs were cross-examined and the evidence of Respondents/Defendants was also closed. At this stage, the Petitioners/Plaintiffs came up with these Petitions only to drag on the case and there are no bona-fides on the part of the Petitioners/Plaintiffs to allow the Petitions. Finally, the Respondents/Defendants sought for dismissal of the Petitions.
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6. Heard both sides and perused the material available on record.
7. Now, the point germane for my determination is "Whether leave can be granted to the Petitioners/Plaintiffs to file the documents and if so, whether the documents can be received to file and the evidence of Petitioners/Plaintiffs can be reopened and PW-1 can be recalled for marking of documents as prayed for?"
Learned Counsel for the Petitioners/Plaintiffs would contend that at the time of filing of Suit, they could not file the above mentioned documents as they are not available and those documents are very much essential to prove their case and prayed the Court to allow the Petition.
8.2 Refuting the contentions of learned Counsel for Petitioners/Plaintiffs, learned Counsel for the Respondents/Defendants would vehemently contend that while the Suit is at the stage of arguments, to flout the cross-examination of the Petitioners/Plaintiffs and their witnesses and fill up the latches, the Petitioners/Plaintiffs came up with these Petitions and sought for dismissal of the Petitions.
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8.3 Admittedly, the Petitioners/Plaintiffs have filed the above captioned Suit for the relief of Permanent Injunction in respect of Plaint "A", "B" & "C" Schedule Properties covered by Survey Nos.374/2, 374/4, 374/5 and the Suit is slated for Arguments and after taking time for one month to advance arguments, the Petitioners/Plaintiffs have come up with these three applications.
8.4 In view of rival contentions of both sides, it is apposite to quote here Rule 14 of Order VII of CPC, which reads as under :
(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or
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entered accordingly, 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 document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.
8.5 Before considering the scope of Order VII Rule 14 (3) of C.P.C, it is necessary to look into the contents of the Affidavit filed in support of the applications. The affidavit annexed to the Petition in IA.No.788 of 2024 contains 5 paragraphs and prayer. In para No.3, the 3rd Petitioner/ 3rd Plaintiff states that he could not file the below mentioned two documents, due to non-availability of original documents, which are crucial and vital to this Suit. In fact, there is no explanation regarding the relevancy of so-called documents.
8.6 In order to curb the practice of parties producing documents at any stage of the suit proceedings resulting in protracting the litigation causing inordinate delay in conclusion of the cases in the Civil Courts, Order VII Rule 14 CPC was amended by Act 46 of 1999. Sub-Rule (1) mandates, Plaintiff to furnish the list of documents on which reliance is placed by him, to produce the same in the Court when the Plaint is presented and shall deliver the documents and copies thereof to be filed
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with the Plaint. Sub-Rule (2) requires that if a document is not in possession or power of the plaintiff, he should state in whose possession and power the said document is available. Sub-Rule (3) carves out an exception to Sub-Rules (1) & (2) and enables Plaintiffs to file additional documents which were not shown in the list of documents filed along with the plaint. Sub-Rule (3) vests discretion in the Trial Court to permit additional documents which could not be filed along with the plaint.
8.7 In Bagai Construction through its Proprietor Lalith Bagai v. Gupta Building Material Store1 at Para No.12, the Hon'ble Supreme Court has held thus:
"12. After change of various provisions by way of amendment in the Code of Civil Procedure, 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,
1 (2013)14 SCC 1
could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered...…" (emphasis supplied)
8.8 Amendments carried out to Order VII CPC are intended to curb the tendency of filing documents after Plaint was filed and to discipline the parties. It is no doubt true that, procedural law not to be a tyrant but a servant, not an obstruction but an add to justice. In this case at hand, as rightly pointed out by the learned Counsel for Respondents/ Defendants, in entire Plaint there is no whisper about the Document No.2 i.e., the Certified Copy of Registered Sale Deed dated 13.03.2013. Even otherwise, the entire affidavit of the Petitioners/Plaintiffs is silent as to how far those documents are relevant to clinch the issue. Further, as per the contents at Para No.4 of the Affidavit annexed to the Petition in IA.No.788 of 2024, the 3rd Petitioner/ 3rd Plaintiff filed his Chief-examination affidavit, but due to photocopies, those documents were not marked. The 3rd Petitioner/ 3rd Plaintiff has mounted witness box as PW-1, filed Chiefexamination affidavit by mentioning the list of documents to be marked on behalf of the Petitioners/Plaintiffs. In the said list, there is no whisper regarding the Proposed Documents sought to be received to file. Further, Non-Judicial Stamp Paper attached to the Proposed Document No.1 i.e.,
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the Certified Copy of Registered Sale Deed dated 11.08.1954, discloses that it was dated 24.11.2020 and it shows that the Petitioners/Plaintiffs have obtained it on the said date, PW-1 was cross-examined on 20.07.2023 and subsequently, the Petitioners/Plaintiffs have also got examined PW-2 on their behalf and also cross-examined DW-1 & DW-2. Thus, having the custody of the Proposed Document No.1 with them throughout the completion of entire trial, the Petitioners/Plaintiffs have kept quiet almost 4 years without filing the said document before the Court for the reasons best known to them.
8.9 Of course, the Petitioners/Plaintiffs may say that on 24.02.2024 they have obtained the Proposed Document No.2 i.e., the Certified Copy of Registered Rectification Deed dated 13.03.2013 and filed the Petitions. But, the affidavit of the Petitioners/Plaintiffs annexed to the Petitions is silent as to the circumstances necessitated to obtain and file the so-called document. Further, as could be seen from the testimonies of the witnesses of both parties, the Respondents/Defendants have crossexamined PW-1 & PW-2 regarding their case. If the Petitioners/Plaintiffs are permitted to file the documents by granting leave, in the opinion of this Court, it will cause prejudice to the Respondents/Defendants. So, this Court is of the considered opinion that leave cannot be granted to the Petitioners/Plaintiffs to file the Proposed Documents.
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8.10 In Vadiraj Naggappa Vernekar (dead) through LRs. v. Sharadchandra Prabhakar Gogate2 wherein at Para 28 & 29, their Lordships have held thus :
28. The power under the provisions of Order 18, Rule 17, CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18, Rule 17, CPC.
29. It is now well settled that the power to recall any witness under Order 18, Rule 17, CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. [emphasis supplied]
2(2009) 4 SCC 410 : AIR 2009 SC1851
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8.11 Thus, in the light of above judicial precedent, the power Under Section 151 of CPC or Order 18 Rule 17 of CPC is not entitled to be used routinely merely for asking. As could be seen from the affidaivt annexed to the Petition in IA.No.789 of 2024, the Petitioners/Plaintiffs intend to recall PW-1 only for the purpose of marking of documents filed in IA.No.788 of 2024. This Court already indicated that leave cannot be granted to the Petitioners/Plaintiffs to file the Proposed Documents. Therefore, this Court is of the considered opinion that the evidence of the Petitioners/Plaintiffs cannot be reopened and PW-1 cannot be recalled for the purpose of marking of documents.
8.12 In view of the above discussion, this Court holds that the Petitioners/Plaintiffs are not entitled to the reliefs as prayed for in the Petitions and the Petitions are liable for dismissal with costs. Accordingly, the Point is answered.
IN THE RESULT, this Petition is Dismissed with costs.
IN THE RESULT, this Petition is Dismissed with costs.
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IN THE RESULT, this Petition is Dismissed with costs.
Dictated to the Stenographer Grade-III, transcribed by her, corrected and pronounced by me in open Court, this the 28th day of February, 2025.
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