Teja Ram vs Pukali Devi And Ors

By way of the present writ petition, the petitioner has challenged the order dated 3.10.2012, passed by the learned Civil Judge (Jr.Div.) and Addl. Chief Judicial Magistrate, Pali (hereinafter referred to as the learned trial Court for short), whereby it has rejected two applications filed by the petitioner - defendant; (i) application dated 16.7.2012 filed under Order XI Rule 12 of the Code of Civil Procedure for summoning of the record from the Police Station, Kotwali, Pali and (ii) application dated 27.4.2012 filed by the defendant - petitioner under Section 65 of the Evidence Act for leading secondary evidence. Not only this, by the impugned order dated 3.10.2012, the learned trial Court has also closed right of the defendant - petitioner to lead his evidence.

Briefly stated facts of the case are that the plaintiff Smt. Pukali Devi (respondent no.1 herein) had filed a suit for injunction against the present petitioner. During the course of proceedings, when the matter was at the stage of defendant's evidence, the defendant - petitioner filed the above two applications; firstly for leading secondary evidence with respect to power of attorney dated 29.10.2003 and secondly for summoning the record.

The application under Order XI Rule 12 of the Code of Civil Procedure has been rejected by the trial Court simply observing that the petitioner has filed the application, with a view to protract the proceedings, whereas the other application under Section 65 of the Evidence Act has been rejected on the ground that the petitioner can obtain certified copy of power of attorney from the concerned Police Station and produce the same. While rejecting the petitioner's aforesaid applications, the learned trial Court has proceeded to close petitioner's right to lead evidence as well.

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

Concededly, the document, which petitioner sought to summon was in the custody of the Police Station/Court concerned, which can neither be said to be irrelevant for the present purposes nor can the petitioner be asked to produce certified copy thereof. If the Court does not have the original power of attorney, its genuineness or authenticity cannot be examined, which is the main bone of contention between the parties. The learned trial Court was not justified in rejecting petitioner's application, simply observing that the petitioner has filed such application for protracting the proceedings. An application filed by a party is required to be decided on its own merit and not cursorily, by observing that the same has been filed for the purpose of delaying the proceedings.

Having heard learned counsel for the parties and upon perusal of the material available on record, this Court feels that the concerned documents in original are relevant for the present purposes and therefore, the application dated 16.7.2012 filed by the petitioner under Order XI Rule 12 of the Code of Civil Procedure, is allowed.

On receipt of the present order, the learned trial Court shall issue necessary precept to the concerned Police Station/Court for summoning the record.

Since the application under Order XI Rule 12 of the Code of Civil Procedure filed by the petitioner has been allowed, the application dated 27.4.2012 under Section 65 of the Evidence Act for leading secondary evidence has been rendered infructuous and hence, no separate order is required to be passed thereupon.

By way of the order impugned, the learned trial Court has closed the petitioner's evidence.

In the facts and circumstances as noticed above, the learned trial Court cannot be said to be justified in closing the petitioner's right to lead the evidence. The order impugned dated 3.10.2012 is thus quashed and set aside, to this effect as well.

The learned trial Court shall provide reasonable opportunity to the petitioner for leading his evidence, of course, after receipt of the relevant documents from the concerned Police Station/Court.

The petitioner shall pay a cost of Rs.5,000/- to the plaintiffs- respondents on or before the next date of hearing in the learned trial Court, as a recompense of getting his right to lead evidence, resurrected.

With these observations and directions, the present writ petition is allowed.

The stay application also stands disposed of accordingly.