Saturday, 11 January 2020

Whether court can allow production of document in absence of pleading in respect of that document?

 Indisputably, the assertion regarding transaction covered by sale deed dated 06.01.2006, executed by Vimal Kumar, was not on record of the Trial Court. In absence of any pleadings or existence of facts on the record of the Trial Court, no permission to produce additional documents could be granted. The basic consideration, while allowing the application under Order 8, Rule 1A(3) of the Code is; as to whether the document in question is required for adjudication of the dispute between the parties and whether the defendant was precluded from producing the same along with the written statement, as mandated by Rule 1A of Order VIII of the Code. In absence of any such pleading, the relevance of the document dated 06.01.2006 itself becomes a question mark. The respondent's application did not contain any explanation for inordinate delay in seeking leave to produce the document, which had been executed on 06.01.2006. The application was clearly proscribed or prohibited by the provisions contained in Order VIII, Rule 1A of the Code. The Trial Court has, therefore, clearly erred in arriving at a finding that the sale deed dated 06.01.2006 is relevant.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Writ Petition No. 16351 of 2017

Decided On: 30.07.2019

Tulsi Ram Jagannath Agarwal  Vs. Parmeshwar Lal and Ors.

Hon'ble Judges/Coram:
Dinesh Mehta, J.

Citation: AIR 2019 Raj 170


1. The legal representatives of deceased petitioner have filed the present application under Order XXII, Rule 3 of the Code of Civil Procedure, inter aha stating that the petitioner has passed away on 12.01.2019 and right to sue and to prosecute the present writ petition survives in them.

2. For the reasons stated in the application, the same is allowed. The applicants are substituted in place of the present petitioner. Amended cause title filed along with the application is taken on record.

3. The writ petition is taken up for consideration.

This writ petition is directed against order dated 21.11.2017, passed by the Additional District & Sessions Judge, Churu (hereinafter referred to as 'the Trial Court'), vide which the application under Order VIII, Rule 1A(3) of the Code of Civil Procedure, filed by the defendant-respondent has been allowed.

4. The facts appertain to the present writ petition are that Tulsi Ram-plaintiff (propositus of petitioner herein) filed a suit on 28.04.1986, for cancellation of sale deed, asserting his right of pre-emption.

5. A written statement to the suit so filed, was filed by the defendant-present respondents and issues were framed.

6. During the pendency of the suit, when the case was at the stage of defendant's evidence, an application dated 30.10.2017, came to be filed by the defendant, whereby a permission was sought to place certain documents on record. The plaintiff opposed such application by way of filing detailed reply dated 21.11.2017 and opposed the request to produce additional documents on record.

7. The Trial Court, however, partly allowed the application holding that the sale-deed dated 06.01.2006 is relevant and necessary for the adjudication of dispute and thus required to be taken on record. Petitioner's prayer qua other documents was, however, rejected with observation that the Court can take judicial notice of the orders/judgments of the courts.

Mr. Manish Shishodia, learned counsel for the petitioner, assailing the order dated 21.11.2017, argued that the learned Trial Court has allowed the application filed by the respondent under Order VIII, Rule 1A(3) of the Code of Civil Procedure and has taken sale-deed dated 06.01.2006 on record, completely being oblivious of the fact that there was no pleading in the written statement, dealing with or touching upon the sale deed dated 06.01.2006. His argument has been that until and unless there is a pleading of the party or assertion of a fact in relation to a transaction, a party cannot be permitted to lead documentary evidence, because evidence has to be led in conformity with the pleadings.

8. For completion of the factual matrix, Mr. Shishodia apprised that though, after passing of the order dated 21.11.2017 (by the Trial Court), the petitioner filed an application under Order VI, Rule 17 of the Code, seeking introduction of the requisite facts but the same has been rejected by the Trial Court, and by a separate judgment rendered in SBCWP No. 11386/2018 (Parmeshwar Lal v. L.Rs. of Tulsi Ram & Ors.), the same has been affirmed.

9. In light of the subsequent fact, Mr. Shishodia argued that in wake of the fact that even the amendment sought by the defendant has been turned down, the impugned order dated 21.11.2017, all the more, is unsustainable in the eyes of law.

10. Mr. S.G. Ojha, learned counsel for the respondent, however, submitted that the impugned order dated 21.11.2017, allowing defendant's application under Order VIII Rule 1A(3) of the Code, should be considered independently and the mere fact that the writ petition filed by the defendant-respondent (CWP No. 11386/2019), challenging the rejection of amendment application has been dismissed, should not affect the adjudication of the present writ petition filed by the petitioner.

11. I have heard learned counsel for the parties and considered the material available on record.

12. Indisputably, the assertion regarding transaction covered by sale deed dated 06.01.2006, executed by Vimal Kumar, was not on record of the Trial Court. In absence of any pleadings or existence of facts on the record of the Trial Court, no permission to produce additional documents could be granted. The basic consideration, while allowing the application under Order 8, Rule 1A(3) of the Code is; as to whether the document in question is required for adjudication of the dispute between the parties and whether the defendant was precluded from producing the same along with the written statement, as mandated by Rule 1A of Order VIII of the Code. In absence of any such pleading, the relevance of the document dated 06.01.2006 itself becomes a question mark. The respondent's application did not contain any explanation for inordinate delay in seeking leave to produce the document, which had been executed on 06.01.2006. The application was clearly proscribed or prohibited by the provisions contained in Order VIII, Rule 1A of the Code. The Trial Court has, therefore, clearly erred in arriving at a finding that the sale deed dated 06.01.2006 is relevant.

13. Indisputably, there was no pleading of the defendant with respect to the sale-deed dated 06.01.2006. That apart, defendant's application seeking amendment in the written statement, which was filed on 12.02.2018, after acceptance of the application under Order VIII, Rule 1A(3) of the Code, has also been rejected by the Trial Court and such rejection has been upheld by this Court vide a separate judgment of even date.

14. In view of the aforesaid discussion, the present writ petition deserves to be allowed; which is here by allowed. The impugned order dated 21.11.2017 is quashed and set aside. The sale deed dated 06.01.2006 (sic 07.10.2006) is taken off the record.

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