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Judgment
A.P. Lavande, J.—Heard learned Counsel for the parties.
Rule. By consent heard forthwith.
By this petition under Article 227 of the Constitution of India, the Petitioners challenge two orders dated 19th March, 2011 and 23rd March, 2011 passed by the Civil Judge, Junior Division, Ponda in Regular Civil Suit No. 169/2000/B. By the order dated 19th March, 2011, the trial Court has dismissed the application dated 9th March, 2011 filed by the Plaintiffs seeking leave to produce certificate dated 16th February, 2011 issued by the Superintendent of Survey and Land Records, Panaji, Goa. By order dated 23rd March, 2011, the trial Court has closed the evidence of the Plaintiffs.
Briefly, the facts leading to filing of the present petition are as under:
The Petitioners herein filed Regular Civil Suit No. 169/2000 initially in the Court of Civil Judge, Senior Division, Ponda, which was later on made over to Civil Judge, Junior Division, Ponda seeking relief of injunction and declaration against the Respondents in respect of the property ''Bukirwardo''. The suit was contested by the Defendants. In the course of cross-examination of Shri Arjun Matondkar-PW3 on behalf of the Plaintiffs, certificate dated 16th February, 2011 was sought to be produced, which was objected to on behalf of the Defendants and the trial Court rejected the prayer of the Plaintiffs to produce the said document. Thereafter, by an application dated 9th March, 2011, the Plaintiffs sought leave to produce the said document, which was issued to Shri Arjun Vithal Matondkar on 16th February, 2011. The application was opposed on behalf of the Defendants. By the impugned order dated 19th March, 2011, the trial Court dismissed the application on the grounds that the certificate was not a public document and that no case was made out for reexamination of P.W.3 in order to enable the said witness to produce the said document. Thereafter, on 23rd March, 2003, an application for adjournment was moved on the ground that the matter was fixed for reexamination of P.W.3 and that he was not available for reexamination since he was held up in some personal work. The trial Court held that time could not be granted to the Plaintiffs to reexamine P.W.3 since the matter was not fixed for reexamination of P.W.3, but it was fixed for examination of further witnesses on behalf of the Plaintiffs. Consequently, the trial Court closed the evidence of the Plaintiffs.
Mr. Kantak, learned Counsel for the Petitioners submitted that the trial Court erred in law in passing the impugned orders. According to learned Counsel, the certificate dated 16th February, 2011 is a public document and as such, the Plaintiffs are entitled to produce the said document and no prejudice would be caused to the Defendants if the Plaintiffs are allowed to produce the said document. Mr. Kantak further submitted that in terms of Order VII, Rule 14 of CPC , the Plaintiffs are entitled to produce the document not already relied upon, upon cause being shown for late production. According to Mr. Kantak, since certificate was not available at the time of filing of the suit, the trial Court ought to have permitted production of the said document. According to Mr. Kantak, the trial Court has exercised jurisdiction illegally in rejecting the application dated 9th March, 2011.
Mr. Kantak further submitted that in so far the order dated 23rd March, 2011 closing the case of the Plaintiffs is concerned, the Plaintiffs were entitled to reexamine P.W.3 and the trial Court ought to have granted some time for reexamination of P.W.3 and to examine other witnesses in support of their case. He further submitted that serious prejudice would be caused to the Plaintiffs if the said order is not set aside in as much as by the said order, the Plaintiffs have been deprived of an opportunity to lead further evidence in support of their case. Mr. Kantak, in support of his submissions, relied upon the following judgments:
(i) Vitorino Rodrigues (Major) and Ors v. Nirmalabai Shivajirao Dessai 2010 (4) B.C.R. 631.
(ii) Chitrakala Fal Dessai v. Balu Marathe @ Mane 2006 (5) BCR 602.
(iii) Bama Kathari Patil v. Rohidas Arjun Madhavi and Anr. 2004 (3) BCR 509.
Per contra, Mr. Shirodkar, learned Counsel for some of the Respondents supported the impugned orders and submitted that the trial Court has exercised jurisdiction in accordance with law while passing the impugned orders and no interference is warranted with the impugned orders.
I have carefully considered the rival submissions and perused the record and the judgments relied upon.
The trial Court has dismissed the application dated 9th March, 2011 firstly on the ground that the document sought to be produced is not a public document and secondly on the ground that the Plaintiffs had sought to produce the said document during the cross-examination of P.W.3. Admittedly, the application was filed under Order VII, Rule 14 of Code of Civil Procedure
In the case of Vitorino Rodrigues (Supra), the learned Single Judge of this Court held that the trial Court had not exercised jurisdiction illegally in allowing the Plaintiffs to produce documents at a later stage and no prejudice would be caused to the Defendants as they would be entitled to cross-examine the Plaintiffs on the said documents. The learned Single Judge increased the costs to Rs. 2,500/-and dismissed Writ Petition filed by the Petitioners/Defendants.
In the case of Chitrakala Faldessai (Supra), this Court has held that the provisions of Order XIII, Rule 2 of CPC have been enacted to provide fair trial and not to penalise the parties and the object is to prevent the parties from manufacturing documents. The learned Judge allowed not only the public document but also the other documents in the interest of justice.
As stated above, in the present case, the trial Court rejected the application dated 9th March, 2011 on above referred two grounds. In so far as the first ground is concerned, the trial Court is right in holding that certificate is not a public document. I do not find any legal infirmity in the finding of the trial Court. The said document cannot be termed to be a public document in terms of Section 74 of the Evidence Act and, therefore, I am unable to accept the submission of Mr. Kantak, that the said document is a public document. However, the mere fact that it is not a public document by itself would not be conclusive. The certificate has been issued by the Superintendent of Survey and Land Records, Panaji and as such it cannot be said that the document is manufactured document. In so far as the second ground is concerned, no doubt the Plaintiffs sought to produce the said document in cross-examination of P.W.3, an exercise impermissible in law. However, the said fact by itself also would not be relevant for dismissing the application for production of the said document. It was not the case of the Defendants in reply dated 15th March, 2011 that the said document is not relevant for deciding the matter in controversy between the parties. The Defendants opposed the application on the ground that prejudice would be caused to them if the document is allowed to be produced. In so far as prejudice caused to the Defendants on account of delayed production of the document is concerned, the same can be taken care of by compensating the Defendants .
In so far as the order dated 23rd March, 2011 passed by the trial Court closing the case of the Plaintiffs is concerned, I am of the considered opinion that it would be in the interest of justice to permit the Plaintiffs to lead further evidence, if they so desire. No doubt, the trial Court was justified in not permitting the reexamination of P.W.3 since after conclusion of cross-examination of P.W.3, the Advocate for the Plaintiffs sought to reserve his right to reexamine the witness solely for production of the certificate, an exercise impermissible in law as held by me earlier.
However, serious prejudice would be caused to the Plaintiffs if the Plaintiffs are not allowed to examine the other witnesses, if they so desire in support of their case. In my opinion, interest of justice would be served by permitting the Plaintiffs to examine further witnesses on payment of costs.
In view of the above discussion, the order dated 19th March, 2011 dismissing the application dated 9th March, 2011 is quashed and set aside and the Plaintiffs are permitted to produce the certificate dated 16th February, 2011. The order dated 23rd March, 2011 is also quashed and set aside. Consequently, the Plaintiffs are permitted to examine further witnesses in support of their case, if they so desire. The Plaintiffs shall pay costs of Rs. 2,500/- to the legal representatives of Respondent No. 2/ Defendant No. 2, who contested the applications. The costs shall be deposited within a period of two weeks from today in the trial Court. Liberty to the legal representatives of Respondent No. 2 to withdraw the costs after they are deposited.
It is made clear that the Plaintiffs have been only permitted to produce certificate dated 16th February, 2011 and this order should not be construed as holding that by production of the document, the contents of the document would stand proved.
Rule is made absolute in aforesaid terms.