AI Structured Summary
Not yet generated for this judgment
Judgment
[1] Heard Mr. T. D. Majumder, learned counsel appearing for the petitioner as well as Mr. P. K. Pal, learned counsel appearing for the respondents.
[2] By means of this application filed under Article 227 of the Constitution of India, the petitioner has challenged the order dated 25.09.2019 delivered in M.S. 10 of 2014 whereby the application filed by the plaintiff for calling the records from the court of the Judicial Magistrate, Court No.4, Agartala, West Tripura i.e. the original documents kept in the records of C.R. 81 of 2014 has been dismissed. Mr. Majumder, learned counsel appearing for the petitioner has, however, apprised this court that presently the said record is in the court of the Judicial Magistrate, 1st Class, Court No.7, Agartala.
[3] The relevant fact briefly stated is that, the plaintiff filed one application under Order 16, Rule 1(3) of the CPC for calling of the records lying in Case No. C.R. 81 of 2014. It is pertinent to mention that the plaintiff has submitted the certified copy of some documents obtained from the said criminal court. At the time of admitting those documents, the defendants raised objection as to their admissibility as those were the certified copies and the documents were not the public documents.
[4] However, the Civil Judge, Senior Division, Court No.2 had admitted those documents tentatively marking those as subject to objection (SO). In that background, the said application for calling for documents was made by the plaintiff and such prayer has been rejected by the trial court on various grounds. It has been asserted by the plaintiff in the proceeding of the suit being M.S. 10 of 2014 that the original documents are lying in the said criminal case. The defendants seriously resisted such prayer contending that the plaintiff has failed to produce the originals or to take steps for calling for the original records in time. In the meanwhile, on 18.11.2017 the recording of the evidence from the plaintiff was closed.
[5] Mr. Majumder, learned counsel has submitted further that the order of closing the plaintiff‟s evidence has been subsequently vacated. Mr. Majumder, learned counsel appearing for the petitioner has fairly conceded that Order 13, Rule 1 of the CPC clearly provides that the original documents are to be submitted before framing of the issues. But the petitioner, the plaintiff in the suit, omitted to call for the documents before the issues were framed.
[6] Mr. P. K. Pal, learned counsel appearing for the respondents has drawn notice of this court that on 09.01.2017 the plaintiff filed one application under Order 13 Rule 10 read with Section 151 of the CPC on the same ground but the said application was not pressed as would be evident from the order dated 25.09.2017 passed by the Civil Judge (Sr. Div.), Court No.2, West Tripura, Agartala. From perusal of the order dated 29.03.2017 it transpires that the plaintiff has stated that there is no need‟ for further hearing on the application and accordingly, the said application was dismissed by the order dated 29.03.2017.
[7] Having referred to that dismissal based on the said order dated 25.09.2017, the Civil Judge, (Sr. Div.) by the impugned order has observed that "secondary evidence of the documents in the form of certified copies without satisfying the conditions of Section 65 of the Evidence Act" cannot be admitted. Now, on perusal of the case records, this court finds that the plaintiff had ample opportunities to submit the original documents in due course but he had consciously and deliberately deviated from those procedures and proceeded with the trial. Now, filing of the instant application by the plaintiff is nothing but a perilous attempt to fill up the lacuna in that case, caused by his negligence. Moreover, nothing has been mentioned in the application how the record custodian of the court of Judicial Magistrate 1st Class, Court No.4 shall prove the contents of the original documents relied on by the plaintiff. Apart from that, previously the application filed by the plaintiff for the same purpose was decided on merit but the previous application dated 19.05.2017, as recorded in the impugned judgment, according to the Civil Judge is barred by the principle of constructive res judicata.
[8] There cannot be any amount of doubt about the position of law that the doctrine of constructive res judicata can be applied in respect of the order passed in the same proceeding vis-a-vis the order subsequently passed in the same proceeding. But Mr. T. D. Majumder, learned counsel has submitted that the said application which was allowed by the Civil Judge (Sr. Div.), Court No.2, West Tripura, Agartala was in respect of different documents. The Civil Judge, (Sr. Div.) has dismissed the application for calling for records with cost of Rs.2000/- to be paid to the defendants before the next date.
[9] The court has framed the following question for decision - whether the lapse for which the plaintiff is responsible can take out the discretional jurisdiction of the Civil Court for calling records of such documents, certified copies of which are lying in the proceeding. It is seen by this court that the certified copies of the documents are already on record and marked under objection. In order to remove the said objection, the plaintiff has filed the application for calling for the records containing those documents. True it is that the Order 7 Rule 14 of the CPC clearly provides that where a plaintiff sues upon a document or relies upon the documents in his possession or power in support of his claim he shall enter such document in a list and shall produce it in court when the plaint is presented by him and shall at same time deliver the documents and a copy thereof to be filed with the plaint. 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. A document which ought to be produced in court by the plaintiff when the plaint is presented, ought to be entered in the list to be added or annexed to the plaint, but if it is not produced or entered accordingly, that shall not without leave of the court be received in evidence at the hearing of the suit. For that purpose, reference may be made to the relevant provisions. Order 13 Rule 1 of the CPC provides that the parties in support of their pleading shall either directly or through 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 the plaint or the written statement. It further provides that the court shall accordingly receive the documents so produced. For the present controversy, Order 13 Rule 1 of the CPC is relevant as it mandates all the documentary evidence in original where the copies thereof have been filed along with the plaint or the written statement shall be produced before the settlement of issues. Admittedly the plaintiff did not comply with this provision for submission of the original.
[10] Mr. Majumder, learned counsel has pursuasively submitted that for misconception, the plaintiff did not file the original documents before the settlement of issues in terms of Order 13 Rule 1 of the CPC. We have also read the provision of Order 7, Rule 14 whereby the leave can be taken from the court for production of the documents which could not be produced at the time of filing the plaint but Order 13 Rule 1 of the CPC restricts the submission before the stage when the document can be filed.
[11] Mr. Majumder, learned counsel has further submitted that unless there was objection they would not have asked for the said leave from the court by filing the application which has been rejected by the impugned order dated 25.09.2019.
[12] Mr. Pal, learned counsel has been heard over that question and he has submitted that the originals ought to have been filed before the settlement of issues or leave could have been taken before the plaintiff or his witnesses were examined. When the documents were not introduced in the record following the process of Section 65 of the Evidence Act, the defendants raised objection rightfully and therefore, Mr. Pal, learned counsel for the respondents further contends that there is no foundation to challenge the said order rejecting the prayer for accepting documents in original by the plaintiff petitioner.
[13] Having appreciated the rival contentions as projected by the learned counsel for the parties, this court finds that the plaintiff has failed to take the appropriate step for calling for the records before the settlement of issues. Now, the further question ancillary to the core question that has fallen for consideration is that whether the bona fide mistake, inasmuch as the contents of the document are acquainted to the defendants, can be allowed for purpose of removing the objection as raised without the primary evidence.
[14] Having an eye to the substantive ends of justice, irrespective of the outcome of the proceeding, this court is inclined to grant leave to the plaintiff to call for the records which has been catalogued in the application filed under Order 16, Rule 1(3) and Rule 6 read with Section 151 of the CPC.
[15] As consequence thereof, the impugned order which does not otherwise suffer from any legal infirmity, is interfered with to pave the way for calling those documents so that the plaintiff does not suffer substantive prejudice, disproportionate to the context, for not observing the rigors of the procedural rules.
[16] The application filed under Order 16 Rule 1(3) [and Rule 6] read with Section 151 of the CPC, is thus restored on quashing the order dated 25.09.2019. The Civil Judge (Sr. Div.), Court No.2 shall call for the records of Case No.C.R. 81 of 2014 from the court of the Judicial Magistrate, 1st Class, Court No.7, Agartala, West Tripura. When the file would be available through the record custodian of the said criminal court, the court of the Civil Judge (Sr. Div.), Court No.2 shall on comparison remove the objection as raised by the defendants. If on comparison, it is found that the certified copies are the copies of the originals, those shall be read in the evidence on removing the objection as raised by the defendants.
[17] This court is surprised how the certified copies were given of the documents which are not marked in the evidence. Unless the documents are admitted the certified copies cannot be provided by the court.
[18] Be that as it may, this court, however, would not take up that issue in the present case but in future the courts would be cautious in issuing the certified copies of the document lying in the records, but not admitted in the evidence.
[19] Having observed thus, this application stands allowed subject to payment of Rs.5000/-. On being satisfied that the payment as asked for as cost by this court has been paid, the Civil Judge, Sr. Div. Court No.2, West Tripura, Agartala shall summon the record custodian of the said criminal court to produce the record on the date as would be appointed.