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Judgment
In this revision petition filed under Article 227 of the Constitution of India, the petitioner-State has sought quashing of the impugned order dated 09.04.2019 passed by the learned Assistant to Deputy Commissioner (Judicial), Ri Bhoi District, Nongpoh in T.S. No.1 (T) of 2015 returning the petitioners application under Order VII Rule 14 (3) read with Section 151 of the Code of Civil Procedure (CPC), accepting the objection petition dated 05.11.2018 and rejecting the document marked as Exhibit D-1 Deed of Gift dated 18.07.2012 registered on 26.07.2012 annexed with the examination-in-chief by way of affidavit of DW1, thereby declining the petitioner-State leave to produce additional document in evidence before the learned Trial Court.
The brief facts may be noticed.
The respondent/plaintiff had filed a suit before the Court of Assistant to Deputy Commissioner (Judicial), Ri Bhoi District, Nongpoh which was registered as T.S. No.1 (T) of 2015 for alleged encroachment upon his landed property by the Public Works Department (Roads), Shillong North Division as he is the owner of the suit property situated at Umtynrah-Umdohbyrthih, Ri Bhoi District, Nongpoh, Meghalaya by virtue of a registered Deed of Declaration dated 14.09.2004 under the pretext of widening and constructing a road to provide connectivity. Further, the defendants/petitioners have illegally encroached upon part of his landed property despite protest contained in the letters dated 10.04.2014; 08.05.2014 and statutory notice dated 02.06.2014 under Section 80 of the CPC to petitioner No.2.
In pursuance to the letters dated 10.04.2014 and 08.05.2014, the department vide letter bearing No. RB/DPIU/PMGSY/GD/Pt-I/2013-14 dated 18.06.2014 directed the petitioner No.2 to inspect the site and submit a detailed report. The respondent/plaintiff vide letter dated 24.01.2015 again wrote a letter to petitioner No.2 for redressal against the alleged encroachment.
The defendants/petitioners after receipt of the notice from the learned Trial Court entered appearance and filed written statement on 21.09.2015 countering the case of the respondent/plaintiff stating that the suit property was absolutely vested with the Public Works Department (Roads), Shillong North Division and in support thereof, referred to the land documents and also appended a Deed of Declaration dated 22.09.2000.
The petitioners/defendants submit that thereafter the learned Trial Court framed the issues and matter was posted for evidence of the respondent/Plaintiff. On completion of evidence of the respondent/ plaintiff, the matter was fixed for evidence of the petitioners/defendants. Further that the petitioner No.2 as DW1, filed the affidavit of examination-in-chief enclosing the Deed of Declaration dated 22.09.2000 and registered Deed of Gift dated 18.07.2012.
The petitioners/defendants claimed that for the purpose of connecting the rural areas to the main road, the administration of the villages who were the beneficiaries of the road had voluntarily vested title of the properties with the petitioners' department in a phased manner and different portions of the road were covered by different title deeds.
On receipt of the affidavit of examination-in-chief, the respondent/plaintiff raised an objection vide petition dated 05.11.2018 urging that the Deed of Gift dated 18.07.2012 could not be taken into evidence as it was not part of the pleadings in the written statement. Thereafter, the petitioners/defendants filed show cause reply to the objection dated 05.11.2018 (Annexure-12) and also moved an application (Annexure-13) invoking Order VIII Rule 1A(3) CPC seeking leave of the court to submit in evidence the said Deed of Gift but inadvertently the application was filed under Order VII Rule 14 (3) CPC which is a similar provision on the same subject dealing with plaints. The petitioners/defendants pleaded in the aforesaid application that while filing the written statement due to oversight, the Deed of Gift was not enclosed and only the Deed of Declaration was filed and the learned Trial Court did not appreciate the same. Hence, the instant petition for quashing the order dated 09.04.2019.
I have heard learned counsel for the parties.
The defendant-State had filed the written statement on 21.09.2015 but inadvertently failed to annexe the registered Gift Deed dated 18.07.2012 whereas only the deed of declaration dated 22.09.2000 was enclosed. The defendant-State while filing the examination-in-chief by way of affidavit of DW1 on 01.10.2018 simply annexed the document marked as Ext.D-1 (deed of gift dated 18.07.2012 registered on 26.07.2012). The plaintiff-respondent raised an objection through an application filed on 05.11.2018 for rejection of the document (Ext.D-1) introduced as a new document and to proceed with the cross examination of the defendant. It was thereupon that the defendant-State while filing reply to the application dated 05.11.2018 filed by the plaintiff-respondent, also moved an application under Order VII Rule 14(3) CPC (Annexure-13) overruling the objection of the plaintiff-respondent and to take the registered Gift Deed dated 18.07.2012 into evidence along with the Examination-in-chief dated 01.10.2018 of DW1. It was pleaded that the gift deed was inadvertently not enclosed with the written statement which is an irregularity and not an illegality. Further, in the written statement, the defendant-State had elaborately stated their claim on the basis of land documents though without mentioning the nature of the documents specifically relied upon. As noticed above, the trial court while returning the application filed under Order VII Rule 14 (3) CPC, accepted the objection petition dated 05.11.2018 and rejected to take into evidence the document i.e., registered deed of gift dated 18.07.2012.
Broadly, two issues arise for consideration in this revision petition. Firstly, whether the Trial Court erred in returning the application filed under Order VII Rule 14 (3) CPC; and secondly, the objection petition dated 05.11.2018 had been rightly accepted and the document, registered deed of gift dated 18.07.2012 correctly rejected from being taken into evidence.
Examining the first issue, learned Advocate General submitted that the counsel who is defending the suit before the learned Trial Court undoubtedly moved the application for production of a registered Deed of Gift which was under the wrong provision of law inasmuch as it was required to be filed under Order VIII Rule 1A(3) CPC instead of Order VII Rule 14 (3) CPC. It was urged that the procedural law is handmaid of justice and the provisions contained in Order VII Rule 14 (3) CPC vis-à-vis Order VIII Rule 1A(3) CPC are pari materia except that the plaintiff is entitled to file an application for production of additional documents at the time of evidence under Order VII Rule 14 (3) CPC whereas the same right is conferred on the defendants under Order VIII Rule 1A(3) CPC.
It was contended that when there was mistake committed by the counsel representing the State, the plaintiff/respondent could have been compensated by payment of costs. Reliance was placed upon the judgment of the Gauhati High Court in the case of Central Training Institute Civil Defence & Home Guards, Assam Panikhaiti, Guwahati & anr v. National Boards Employees Union represented by its General Secretary.
It cannot be forgotten that the provision comprised under Order VII Rule 14(3) CPC empowers the court to receive the document which was not filed along with the plaint. As per Code of Civil Procedure (Amendment) Act, 2002, Order VII Rule 14(3), CPC reads:
"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 amended to the Plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf or the hearing of the suit. ....."
Similar provision is made for the defendant to file the documents under Order VIII Rule 1A(3), which has been inserted by the Code of Civil Procedure (Amendment) Act, 2002. Order VIII Rule 1A(3) reads:
"A document which ought to be produced in Court by the defendant under this Rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit."
The rules of procedure are handmaid of justice and ordinarily do not confer or take away the vested or substantive rights of the parties. At the same time, it cannot be said that proper procedure is not required to be followed. These provisions are essentially to assist the parties as well as the Court in the matter of production of the documentary evidence of the plaintiff and the defendant while adjudicating the dispute raised before the Court. Being matter of procedure, the provisions are necessarily to be construed liberally and no pedantic approach should be adopted while enforcing the said provision of law.
The mistake on the part of the counsel appearing for the State-defendant before the learned Trial Court does not appear to be intentional, though, the counsel was required to be more careful while filing the application. In such a situation, in the peculiar facts and circumstances of the case, the application filed by the defendant - State would be treated to have been filed under Order VIII Rule 1A(3) CPC.
Having treated the application to be one under Order VIII Rule 1A(3) CPC, I now proceed to examine whether the trial court was justified in accepting the objection petition dated 05.11.2018 and rejecting the document Ext. D-1 (registered deed of gift dated 18.07.2012). The State claims that the suit property absolutely vested with the Public Works Department (Roads), Shillong North Division by virtue of the said registered Deed of Gift by the local villages.
According to the plaintiff-respondent, the deed of gift - Ext. D-1 dated 18.07.2012 was a new document annexed with the Examination-in-chief of DW1 and it would not form part of the evidence without the leave of the court. Further, there had been no whisper in the written statement as to in whose possession such document was lying. The written statement was also essentially to be amended for introducing the document Ext. D-1. However, the defendant - State had controverted the averments of the plaintiff - respondent by pleading that the defendant had elaborately stated their claim on the basis of land documents and while enclosing the documents, it was inadvertently the registered deed of gift was not enclosed. The mistake was bonafide. The plea of amending the written statement as taken by the plaintiff was also refuted by arguing that it was discernible from the original pleadings as there was reference to land documents in the written statement.
A perusal of deed of gift dated 18.07.2012 registered on 26.07.2012, annexure-10, shows that the same was executed between the members of the Village Council of MAWTHEI Village and the Executive Engineer, PWD (R), Nongpoh Division, Nongpoh Cum DPIU (PMGSY), Ri Bhoi District whereby, the land had been gifted to the State. The written statement dated 21.09.2015 has been appended as Annexure-8. It has been averred in the written statement that the suit land was taken over by the State following the request of the Village-representatives of Lum Sohpetbneng village, Umeit Village, MAWTHEI Village (emphasis supplied) and Lum sohphoh village. Para 6 of the written statement reads thus:-
"6. That the suit land was taken over by the humble defendant (s) following the request of the village - representatives of Lum Sohpetbneng village, Umeit Village, Mawthei village and Lum sohphoh village.
(Copy of the request letter sent to the Executive Engineer, PWD (Roads), North Division Nongpoh is annexed as annexure-2)."
Thus, it cannot be urged by the plaintiff-respondent that the defendant-State had been totally silent in respect of claiming their title over the suit property in the written statement.
A documentary evidence which is relevant and material for the just and appropriate decision in the matter, merely due to technical fault of the defendant-State not to enter the same in the list annexed to the written statement, could not be ignored unless it is felt that it would cause real prejudice to the plaintiff on account of defendant being allowed to produce such document. The document which relates to the matter in issue cannot be said to cause prejudice to either of the parties merely on the ground of delay in production of such document. The plaintiff would get sufficient opportunity to meet that document and test the veracity in the course of recording of evidence including the cross-examination of the witness. On the basis of procedure, no substantive right or vested right would accrue to the plaintiff/respondent as the learned Trial Court while rejecting the document has taken away the legal right of the State. The rejection of the document was improper on the part of the Trial Court as the document sought to be produced was otherwise registered Deed of Gift, the evidentiary value of which is required to be assessed at the time of decision of the case.
The Gauhati High Court in Central Training Institute Civil Defence & Home Guards, Assam Panikhaiti's case (supra) under similar circumstances while allowing the document to be introduced in evidence on payment of costs, noted as under:-
"11. It appears that all the documents are in the nature of the public documents within the meaning of Section 74 of the Evidence Act. No doubt, the leave petition does not all the time persuade to grant leave unless the causes are demonstrated satisfactorily. The defendants No.5 & 6 have committed latches by not giving the catalogue of documents in the Written Statement or by a separate sheet even though there is references of those documents in the Written Statement but mere reference cannot be treated sufficient. A catalogue of documents is either to be incorporated in the Written Statement or be produced along with the Written Statement. If the documents are not available, in that case the defendants must indicate in the Written Statement about the possible custody for compelling production by the Court. It appears that even after hearing, those documents were not introduced whereas the law has created a deadline for production of all the documents by the parties. On consideration of the nature of the documents and the explanation that was provided that the documents could not be filed before the settlement of the issues for change of the head of institute namely, the Principal, Central Training Institute (CTI) cannot be discarded on the face. But to balance with the interest of justice, the Court is bound to be liberal for achieving the ends of justice. As such the 4 (four) documents as marked by the defendants No.5 & 6 as Ext.B, Ext.C, Ext.D & Ext.E shall be allowed to be introduced in the evidence by the defendants No.5 & 6 subject to the condition that the defendant-petitioners shall pay a cost of Rs.10,000/- to the plaintiff-petitioner within a period of 15 days from today and for that purpose leave is granted to the defendant-petitioners No.5 & 6 under Order VIII Rule 1A(3) of the CPC."
In such circumstances the revision petition is allowed. The impugned order dated 09.04.2019 is set aside to the extent returning the application moved by the defendant-State seeking leave of the Court for production of the registered Deed of Gift dated 18.07.2012 and rejecting the said document. The learned Trial Court shall allow the defendants/ petitioners to introduce in the evidence, the registered Deed of Gift dated 18.07.2012 subject to the payment of Rs. 5,000/- as costs to the plaintiff/respondent to be paid within a period of fifteen days from the date of appearance before the Trial Court and leave is granted to the defendants/petitioners by treating their application to be one under Order VIII Rule 1A(3) CPC. It is further directed that the learned Trial Court shall allow an opportunity to the defendants-petitioners to re-examine any of the witnesses of the plaintiff/respondent who have already been examined in view of the document i.e., Deed of Gift dated 18.07.2012 registered on 26.07.2012 which has been allowed to be produced in evidence. It is, however, clarified that if the cost is not paid as directed, the learned Trial Court shall proceed with the suit in accordance with law without receiving the said document on the record.
Revision petition is disposed of accordingly.