1 S.B. CIVIL WRIT PETITION NO. 7393/2007. Kalu Ram Vs. Ram Prasad & Ors. Date of Order :: 3rd March 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Harish Purohit, for the petitioner. Mr. Sunil Mehta ) Mr.S.K.Maheshwari) for the respondents Nos. 1 and 2. Reportable ...... BY THE COURT: This writ petition is directed against the order dated 25.10.2007 passed by the Additional District Judge, Nagaur in Civil Misc. Case No.4/2006 whereby an application moved by the present petitioner for placing certain documents on record in support of his defence of the proceedings under Order XXXIX Rule 2-A of the Code of Civil Procedure (CPC) has been rejected. Briefly put, the facts and aspects relevant for the present purpose as emerging from the material as placed on record and as placed for perusal during the course of submissions are that the present petitioner Kalu Ram (also referred herein as 'the plaintiff' or as 'the non-applicant') has filed a suit for perpetual injunction in relation to a dispute concerning projection ('Chhajja') of his house situated at Naya Darwaja, Nagaur with the averments indicative that he had purchased the house in question on 25.02.1977 and carried out renovation, including placing of the projection measuring 32'4” 2 x 2'6” on the front side; that the projection got damaged and he was carrying out repairs on 02.05.2001 when the members of the family of the respondents Nos. 1 and 2 Ram Prasad and Narendra (also referred herein as 'the defendants' or as 'the applicants') raised objections and entered into altercation whereupon First Information Report was lodged with the Police Station, Nagaur; that two slabs were damaged and placing of such projection was obstructed by the defendants, who are the eastern side neighbours. The plaintiff has prayed for a decree of perpetual injunction restraining the defendants from creating any obstruction in placing of the projection and a railing thereupon. An application for temporary injunction under Order XXXIX Rule 1 and 2 CPC was also moved by the present petitioner-plaintiff against the present respondents-defendants that came to be allowed by the learned trial court on 13.02.2003 and thereby an injunction was issued against the defendants that they would not create any obstruction in placing of 32' 4” x 30” size projection by the plaintiff and would not create obstruction in placing of two slabs on the eastern side of the projection; but with the stipulation that the plaintiff shall carry out such construction within the precinct of his house and shall submit an undertaking before the court that in the event of failing in the suit, he shall remove the construction at his cost. 3 The order aforesaid dated 13.02.2003 has been challenged by the present respondents Nos. 1 and 2 in appeal before the Additional District Judge, Nagaur. It appears that in the said appeal, a prayer was made for interim relief whereupon the learned Appellate Court by its order dated 27.02.2003 directed that the parties shall maintain status quo in relation to the property in dispute until the next date; and the said interim order has been extended from time to time. It is informed that the said appeal is still pending consideration. The present respondents Nos. 1 and 2 have filed an application (Annex. R/1) under Order XXXIX Rule 2-A CPC before the learned Appellate Court with the allegations that the present petitioner Kalu Ram has violated the interim order passed by the court for maintaining status quo and has made certain constructions on 23/24.01.2006 and intended further to alter the status obtainable at the site. The present petitioner has denied the allegations as made in the application by filing a reply (Annex. R/2) stating, inter alia, that the order dated 27.02.2003 relates only to the disputed projection and there is no other “disputed property”. The present petitioner has also alleged that the story about raising of construction on 23/24.01.2006 was imaginary and incorrect. The petitioner has also stated that in the application for temporary injunction he had pointed out that two slabs of the projection were damaged by the defendants and the complaint in that regard was made 4 to the Municipal Board, Nagaur and to the Police; that undertaking was submitted to the trial court on 21.02.2003 in pursuance of the order dated 13.02.2003 and thereafter, when he started placing the projection ('Chhajja'), the other side entered into altercation whereupon an application was made to the learned trial court on 26.02.2003 for police protection. It appears that the aforesaid application under Order XXXIX Rule 2-A CPC has been put to enquiry; and evidence of the applicants (the respondents Nos. 1 & 2 herein) has already been recorded. In these proceedings, on 27.08.2007, the present petitioner (non-applicant) filed his affidavit with the affidavit of one Bhur Singh and filed the documents marked Sl. No.1 to 10 in the list of documents. Filing of such documents was objected to by the applicants and thereupon the petitioner filed an application on 29.08.2007 (Annex.2) with the submissions that the documents at Sl. No.1 to 8 were the certified copies of various civil and criminal proceedings and were not fabricated documents; and the documents at Sl. No.9 and 10 were the photograph and its negative relating to the site in dispute and those documents could also not be the made up one. It was stated that the documents could not be filed earlier due to bona fide mistake and it was also pointed out that though earlier an application under Order XIII Rule 10 CPC was filed but the same was not pressed as the non- 5 applicant wanted to produce certified copies of the documents. The petitioner submitted that there was no intentional delay in producing the documents; and that the documents were relevant and would assist the Court in arriving at just conclusion. The present respondents Nos. 1 & 2 put the application to contention by filing reply (Annex.3) that a party was not entitled to produce the documents without permission of the Court; that their evidence has been concluded and the matter was fixed for non-applicants' evidence; that the particulars, relevancy, and admissibility of the documents were not spelt out in the application and thus, the vague application was required to be rejected. It was also contended that merely for being the certified copies, the documents at Sl. No.1 to 8 could not be produced; that no reason has been stated for not producing earlier the documents Nos. 9 and 10, the photograph and its negative, and such documents could be prepared any time. It was further stated that the application under Order XIII Rule 10 CPC was bereft of any reason and there was no option with the non-applicant except to give up such a vague application. It was also submitted that with the evidence of the applicants being over, they shall be prejudiced for having no opportunity to state their explanation and evidence; and, therefore, it was neither proper nor justified to grant permission to produce such documents. 6 The learned Appellate Judge has dealt with the application for production of documents by the impugned order dated 25.10.2007. After taking note of the rival submissions as made in the application and the reply, the learned Judge has referred to the operation of the provisions of the Order VIII Rule 1-A (3) of the Code of Civil Procedure and then, has observed that the Court is not obliged to take the documents on record at any stage of the proceedings; and merely for filing the documents, it is not necessary that the same would be taken on record. Then, the learned Judge has observed that the documents at serial number 1 to 8 are of the years 2001 and 2003 and nothing has been stated on the cause of not filing the same earlier except the so-called bona fide mistake. The learned Judge has further observed that the kind of documents at serial number 9 and 10, the photograph and negative, could be prepared any time and no sufficient cause has been shown for not filing the same earlier; and then, has proceeded to reject the application with costs of Rs.300/-. Assailing the order aforesaid, learned counsel Mr. Harish Purohit appearing for the petitioner has strenuously contended that the approach of the learned Appellate Court cannot be said to be in conformity with the requirements of substantial justice and the application has been rejected contrary to the spirit of the provisions of Order VIII Rule 1-A CPC. Learned counsel emphasized that the documents were 7 sought to be produced as evidence by the petitioner while defending the proceedings under Order XXXIX Rule 2-A CPC and such proceedings cannot be approached as an ordinary civil suit between the parties because the consequences of such proceedings are penal in nature. Learned counsel further submitted that the petitioner is ready to make payment of reasonable amount of costs to the respondents but in the interest of justice, the documents deserve to be taken on record; and candidly offered an amount of Rs. 5,000/- towards costs to the respondents Nos. 1 and 2. Learned counsel Mr. Sunil Mehta appearing for the respondents Nos. 1 and 2, however, strongly opposed the submissions as made on behalf of the petitioner and contended that the impugned order remains just and valid and calls for no interference; and disagreed with the proposition of taking the documents on record on costs. Learned counsel submitted that for no cause having been stated for delayed production of documents and then, the evidence of the applicants (respondents Nos. 1 & 2 ) being over, the learned Appellate Court has rightly refused to take the documents on record. Having given a thoughtful consideration to the matter, this Court is clearly of opinion that this writ petition deserves to be allowed with costs; the impugned order deserves to be set aside and the application filed by the petitioner deserves to be 8 restored for re-consideration; with further observations, much requisite in the fact situation of this case. The approach of the learned Additional District Judge in rejecting the application for production of the documents, with a reference in abstract to the provisions of Order VIII Rule 1-A CPC but without adverting at all to the salient features and significant aspects of the case at hands, cannot be approved. The fundamental aspects of the matter that these are the proceedings under Order XXXIX Rule 2-A CPC and that the documents are sought to be produced by the non-applicant, who is defending such proceedings, appear to have totally been lost sight of; and the application seeking production of document has been considered as if moved in a regular civil suit. Even in a regular civil suit an application seeking leave to produce documents is required to be approached keeping in view the principles that a matter is always preferred to be decided on merits rather than on technicalities but coming to the other aspects later, in the very first place, it is required to be observed that an application seeking permission to produce documents by the non-applicant to the proceedings under Order XXXIX Rule 2-A CPC ought to be considered keeping in mind the nature of such proceedings. The proceedings under Order XXXIX Rule 2-A CPC are not ordinary civil proceedings. In the case of Urban Improvement Trust, Jodhpur and others Vs. Barkat Khan: 9 2003 (1) RLR 783, after a survey of various related decisions, this Court has pointed out that such proceedings under Rule 2-A of Order XXXIX are analogous to contempt of court proceedings; and are quasi-criminal in nature. In the said case of Barkat Khan, this Court found rather misconceived an application moved under Order VII Rule 11 CPC in such proceedings under Order XXXIX Rule 2-A CPC. This Court pointed out that Section 141 CPC does not provide for application of the provisions in the Code to each and every proceedings but the provisions are to be applied as far as could be made applicable. This Court also pointed out,- ''If an application for disobeying the order of the court is filed, the Court has to examine the allegations in the application, giving full opportunity to the other party of hearing and decide it as a criminal trial.'' Even when Section 141 provides for applicability of the procedure provided in the Code of Civil Procedure in regard to the suits to the proceedings in any Court of civil jurisdiction, such procedure is to be followed ''as far as it can be made applicable''. For the very nature of the proceedings under Order XXXIX Rule 2-A CPC, this Court is unable to countenance the proposition that the procedure contemplated by Order VIII Rule 1-A CPC would be directly applicable. It is disquieting to find that the learned Appellate Judge dealing with the proceedings under Order XXXIX Rule 2-A 10 CPC has merely picked up the provisions of Order VIII Rule 1- A CPC and has observed that leave of the court cannot be asked without stating reasons for delay in production of the documents and then, finding no reason for delay and assuming the possibility of the documents like the photograph and its negative being fabricated, has proceeded to reject the application and has even imposed costs in that regard. The learned Judge has not at all considered that when the non- applicant is being proceeded against in a trial that is essentially a criminal trial, it would not be just and proper to take up the provisions of Order VIII Rule 1-A CPC and directly apply the same in relation to the documents sought to be produced by him. The approach in passing the impugned order very nearly reaches the unacceptable proposition that an accused could also be condemned while denying him adequate opportunity of hearing. The impugned order cannot be sustained. Even if the principles as available from Rule 1-A of Order VIII CPC are imported for the purpose of expeditious disposal of the proceedings under Order XXXIX Rule 2-A CPC, it cannot be said yet that leave of the court to produce a document later should be refused as a rule and be accorded in exceptional case. Correct approach, in the opinion of this Court, is other way round. Unless there are exceptional and compelling circumstances, the leave should not be refused 11 with a mere reference to the delay or so-called want of cogency of reasons. It appears apposite to underscore that even in a civil suit, the approach is not of refusing leave to produce documents as a rule and granting it as an exception. It is to be imbibed that all the rules of procedure are essentially intended to subserve the cause of justice and a matter in issue before the Court is always preferred to be decided on merits after extending fullest opportunity of hearing to the parties. The rules of procedure are not intended to be used as measures of punishment. There is yet another strong reason that this Court feels dissatisfied with the approach of the learned Appellate Judge in this case. Copies of the list of documents with most of the documents that were sought to be produced by the petitioner have been placed for perusal during the course of submissions before this Court. The learned Judge has rejected the certified copies at serial number 1 to 8 in one stroke that they were of the year 2001 and 2003 and no reason was assigned for not producing them earlier. It appears that these observations have been made while looking merely at the list accompanying the documents and not at all after looking into the documents themselves. The first document is a copy of the FIR No.221 dated 02.05.2001 that has been referred in the plaint itself and seems to have been lodged on the very day the dispute 12 emerged. The second document is again dated 02.05.2001 and is the copy of the site plan and site inspection report prepared during investigation under the said FIR No.221. The third document is the copy of the result of investigation ultimately submitted to the Court concerned in the form of charge sheet for offences under Sections 451, 323, 427 IPC stating the name of the present respondent No.2 as the accused. The fourth document is the copy of the plaint dated 07.09.2001 whereupon is registered Civil Suit No.58/2001. The documents at serial number five and six have not been supplied to this Court but are stated in the list as the application for submission of undertaking by the plaintiff- petitioner before the learned trial court; and the copy of such undertaking respectively. The seventh document is the copy of the temporary injunction order dated 13.02.2003, the very same order that is subject matter of pending appeal. The eight document is a copy of the application dated 26.02.2003 moved by the plaintiff-petitioner to the learned trial court under Section 151 CPC for police protection. The said documents are directly co-related with the matter in issue and seem to be related with the very suit proceedings wherefrom has arisen the appeal in question wherein the Appellate Court is dealing with the application under Order XXXIX Rule 2-A CPC. What to say of rejection, such documents at serial number 1 to 8 in the list ought to have been requisitioned by the Court itself 13 while taking up the proceedings under Order XXXIX Rule 2-A CPC. Learned counsel appearing for the respondents in the present writ petition has also not been able to satisfy this Court as to how the said certified copies of directly relevant and related documents could have been refused. Even when the application for leave to produce the documents was found wanting in strong reasons, the same could not have been rejected without at least a glance at the documents themselves. The learned Judge has proceeded to reject the documents at serial number 9 and 10, the negative and the photograph, while endorsing the submission of the applicants that such documents could be prepared any time. The learned Judge has not noticed that the petitioner has stated in his list of documents the date of such documents Nos.9 and 10 as '25.02.2003'. The respondents Nos.1 and 2 though stated all possible objections against the application and suggested that these days photographs could be prepared in any manner, yet could not dare state that the photograph in question was not of the site in question. In any case, when its negative accompanies the photograph, the correctness of the same could be examined at the appropriate stage but every photograph produced before the Court cannot be viewed with suspicion and it cannot be assumed that every photograph would be untrue, bogus, and fabricated. 14 In view of the aforesaid, the impugned order dated 25.10.2007 cannot be sustained and is required to be set aside. Having regard to the overall facts and circumstances of the case, it appears appropriate that the said application is re- considered by the learned Appellate Court with reference to the record of the case and with reference to the observations made supra. It has been exceedingly fair on the part of the petitioner to have offered an amount of Rs.5,000/- towards costs for the purpose of production of the documents. However, this Court finds such offer unnecessary. The respondents by refusing such proposition have already indicated their pound-of-flesh approach and their preference of seeking decision of the application under Order XXXIX Rule 2-A CPC more on technicalities. While the respondents might have their own approach to the things, preference of the Court is always to deal with the matter on merits rather than on technicalities. There appears no reason that any amount towards costs be allowed to the respondents for the purpose of taking the documents on record. However, and other way round, so far this writ petition is concerned, the same has been necessitated for the learned subordinate Court upholding the objections raised by the respondents against production of the documents by the petitioner; and such objections have been maintained by the respondents before this Court too; and this 15 Court has found such objections untenable; hence, this petition deserves to be allowed with costs to the petitioner. There are a few other aspects calling for comments in the present case. It is not clear as to why the main appeal filed by the non-applicants against the temporary injunction order still remains pending with the learned Appellate Court. The learned Appellate Court is said to have passed an order in appeal that the parties would maintain status quo regarding the disputed property. The Appellate Court is dealing with the appeal against a temporary injunction order that essentially relates to the dispute concerning the projection. Even the status quo order had not been issued in specific terms and particulars. The said appeal deserves to be considered and decided by the learned Appellate Court at the earliest. Then, it is not clear as to whether while taking up the proceedings under Order XXXIX Rule 2-A CPC, the Court concerned examined the application and clarified the specific points on which the petitioner is to be proceeded against. It appears from a comprehension of the application under Order XXXIX Rule 2-A CPC and its reply (placed on record by the respondents as Annexure R/1 and R/2), the subject matter of suit, the subject matter of temporary injunction application, and the terms of temporary injunction as issued by the learned trial court, that the dispute essentially relates to placing of the projection (‘Chhaja’) by the petitioner. The defendants- 16 respondents Nos.1 and 2 herein, however, have made allegations in the application under Order XXXIX Rule 2-A CPC that the petitioner has placed a 'pardi' wall between the two houses. It is not clear as to how this wall would become a matter of the proceedings under Order XXXIX Rule 2-A in the present case. Ordinarily, this Court would not have made any further observations beyond the impugned order but looking to the nature of proceedings, these observations appear necessary because such jurisdiction of a Court like the one under Rule 2-A of Order XXXIX CPC while is intended to maintain the rule of law and to firmly enforce the injunction issued by the Court; at the same time, cannot be permitted to be used as a tool of persecution by a party to the litigation. The proceedings under Order XXXIX Rule 2-A CPC deserve to be taken up and dealt with by the learned Court concerned keeping in view the seriousness of such proceedings. This Court would not like to make any final comment on the merits of the case that is required to be dealt with by the Court concerned but the proceedings under Order XXXIX Rule 2-A CPC being quasi-criminal in nature, ought to be approached on the principles as noticed above. As a result of the aforesaid, this writ petition succeeds and is allowed to the extent indicated above. The impugned order dated 25.10.2007 is set aside and the application dated 29.08.2007 moved by the petitioner stands restored for re- 17 consideration by the learned Additional District Judge, Nagaur keeping in view the observations made above. The petitioner shall be entitled to the costs of this writ petition quantified at Rs.5,500/- (five thousand five hundred) from the respondents Nos.1 and 2. Payment of such costs shall be the condition precedent for the respondents Nos.1 and 2 to participate further in the concerned proceedings under Order XXXIX Rule 2-A CPC. (DINESH MAHESHWARI),J. Mohan