1 (1) S.B. CIVIL WRIT PETITION NO. 3463/2008 Harish Chandra Vs. The Addl.Civil Judge (Jr.Division) No. 2 Sujangarh & anr. (2) S.B. CIVIL WRIT PETITION NO. 3464/2008 Harish Chandra Vs. The Addl.Civil Judge (Jr.Division) No. 2 Sujangarh & anr. Date of Order :: 26th May 2008 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Nitin Trivedi for the petitioner ... These two writ petitions, CWP Nos. 3643/2008 and 3464/2008, challenging similar nature orders dated 25.04.2008 as passed by the Additional Civil Judge (Junior Division) No.2, Sujangarh in the respective civil suits [C.O.Nos.42/2008 and 43/2008] for eviction and recovery of arrears of rent, though wrongly placed for orders, have been heard for admission; and for that matter, learned counsel for the petitioner has been heard at length. The defendant-petitioner is facing the aforementioned two suits for eviction and recovery of arrears of rent as filed by the same landlord-respondent No.2 in relation to the premises let out to him. It appears that after filing of the written statement, the matters were pending for admission/denial of documents and issues were yet to be framed. At that stage, on 22.04.2008, the plaintiff-respondent No. 2 filed similar nature applications (Annex.3) in the respective suits seeking 2 leave of the Court to produce on record photostat of the rent receipts. In each of the suits, the application was put to contest by the petitioner with the submissions that the plaintiff has not indicated the provision of law whereunder the application has been moved; that description of the documents has not been stated; that the reason for not filing the documents with the plaint has also not been stated though the documents on which the plaintiff intended to rely upon ought to have been filed with the plaint and ought to have been entered in the list of documents and the plaintiff was not entitled to produce new documents. It was also asserted that as per the provisions of Order XIII Rule 1 of the Code of Civil Procedure (CPC), only the original of those documents could be produced whose copies had already been filed with the plaint but not the new documents. The petitioner also alleged that the plaintiff has prepared forged receipts that did not exist at the time of filing of the suit. The learned Trial Court has proceeded to allow the application as filed by the plaintiff in each of the suits by similar nature orders dated 25.04.2008 and has accorded leave to the plaintiff to produce the documents on record with reference to sub-rule (3) of Rule 14 of Order VII CPC and with the observations that issues have not been framed and hearing has not commenced and the matter was fixed only for 3 admission-denial of documents. The defendant-tenant has filed these two writ petitions seeking to challenge the aforesaid similar orders dated 25.04.2008. Learned counsel for the petitioner has referred to the requirements of sub-rule (1) of Rule 14 of Order VII CPC that when the plaintiff sues upon a document or relies upon the document in his power or possession, he has to enter the documents in a list and has to produce the same in the Court along with the plaint; and has also referred to sub-rule (3) of the said Rule 14 that the document which ought to have been produced and entered in the list as per the requirements of sub-rule (1) but has not been so produced or entered cannot, without leave of the Court, be received in evidence at the hearing of the suit. Learned counsel submits that the provisions of sub-rules (1) and (3) of Rule 14 of Order VII CPC are required to be read together and a document that has neither been entered in the list nor filed earlier cannot be produced without disclosing specific and cogent reasons for not producing or not mentioning in the list at the time of presentation of the plaint; and, according to the learned counsel, no such reasons having been stated, the documents could not have been taken on record. Learned counsel has further referred to Order XIII Rule 1 CPC to submit that if at all any document is to be produced, the original is required to be 4 filed and in the present case, the photostat of the receipts as filed by the plaintiff could not have been received by the Court. Learned counsel further submits that the defendant has already filed his written statement and shall be prejudiced in his defence if any document is now permitted to be produced by the plaintiff. Having given a thoughtful consideration to the submissions made by the learned counsel for the petitioner with reference to the law applicable to the case and the material on record, this Court is constrained to observe that the present writ petitions could only be termed as frivolous petitions attempted at abusing the process of court and the rules of procedure. From the fact situation of these cases and the material placed on record, it is absolutely clear that the suits in question are at the initial stage and hearing has not commenced inasmuch as after filing of the written statement, the matters were posted for admission-denial of documents. Even at the hearing of the suit, the Court can grant leave to receive in evidence a document which ought to have been produced in the Court or entered in the list but was not so produced or entered. In the present case, when the stage of hearing of the suit has not even arrived, if the learned Trial Court has considered it appropriate to grant leave to produce the 5 documents, the exercise of jurisdiction remains unexceptionable and is rather in accord with the fundamental principles that the rules of procedure are intended to facilitate the cause of justice and for determination of real dispute after affording fullest opportunity to the parties to place their case before the Court. The provisions contained in Rule 14 of Order VII CPC cannot be taken to such a hyper-technical level that even when the issues have not been framed and hearing has not commenced, yet the Court would not grant leave to produce the document unless a very strong cause is stated only because sub-rule (1) of the said Rule 14 requires that when the plaintiff sues upon a document or relies upon the document in his power or possession, he has to enter them in a list and has to produce the same in the Court along with the plaint. By its very nature, sub-rule (3) of the said Rule 14 essentially applies when a document, not produced or entered in the list, is sought to be produced in evidence at the hearing of the suit. True it is that the documents in question have not been entered in the list and were not produced earlier and that only led the plaintiff to seek leave of the Court to produce. Looking to the subject matter of the suits, the documents, when said to be the copies of the rent receipts, cannot be dubbed as 6 irrelevant at this stage. In any case, when the learned Trial Court was satisfied that the matter was fit to accord such leave, the order impugned cannot be said to be suffering from a jurisdictional error leading to substantial failure of justice so as to call for interference in writ jurisdiction of this Court. In the present cases, even the argument relating to Order XIII Rule 1 CPC could only be rejected as bereft of substance. The requirement of producing originals relates to and refers to the stage of settlement of issues that the originals are required to be produced before such settlement of issues. When photocopies have been permitted to be produced on record, as to how the same are to be dealt with at the time of settlement of issues and at the time of hearing of the suit is for the Trial Court to consider but at this stage, the learned Trial Court cannot be said to have committed any jurisdictional error if it has permitted photostat to be produced on record. So far the argument regarding prejudice to the defendant is concerned, it is noticed that the plaintiff has stated herself being in 93 years of age and has alleged in the plaint, inter alia, that the defendant has been a defaulter in payment of rent and has violated the terms of tenancy; that the rent up to a particular date has been paid and a particular quantum of rent remains due; and that notice terminating 7 tenancy had been sent to the defendant. The defendant- petitioner has alleged in his written statement, inter alia, that it were a case of yearly tenancy and not monthly tenancy as alleged by the plaintiff; that the rent note is not admissible in evidence; that he is not a defaulter in payment of rent ;and that he has not received any such alleged notice. In such a matter, production of photostat of the rent receipts cannot be said to be causing any prejudice to the defendant-petitioner. So far the question of rebuttal is concerned, it does not appear that any such prayer was made before the Trial Court for allowing the defendant an opportunity to place on record any document in rebuttal. On the contrary, after passing of the order dated 25.04.2008, these petitions were filed on 23.05.2008 while raising hyper-technical grounds as noticed above. The submissions as made in these petitions remain totally bereft of substance and cannot be accepted. Having regard to the facts and circumstances, it appears rather necessary to make further observations and comments, particularly in view of the approach of the defendant-petitioner. The suggestions as made on behalf of the petitioner are to the effect that a litigation should be approached by the Court with technicalities; and as if the Court cannot have preference to decide the matters on merits and for that purpose, cannot allow opportunity to a party to place relevant material on 8 record in the interest of justice. The suits in question are only at their initial stage but somehow finding an opportunity to make suggestions in respect of the rules of procedure, the petitioner has chosen to prefer these writ petitions. With such an approach, the petitioner has amply demonstrated his intention to use the rules of procedure only for the purpose of causing delay in the proceedings and to put spokes in progress of the suits. In the case of Shankar Lal & Anr. Vs. Additional District Judge, Sujangarh & another: S.B.Civil Writ Petition No.732/2008, decided on 01.02.2008, the defendants- petitioners attempted to challenge an order passed by the Trial Court under Order VII Rule 14 (3) CPC permitting filing of the document and this Court rejected the writ petition in limine and approved the approach of the learned Trial Court towards the rules of procedure. In the said case, the petitioners had been allowed costs by the Trial Court in the sum of Rs.2,000/- but finding the approach of the petitioners in putting up a baseless challenge being not in accord with the true operation of the rules of procedure, this Court directed such amount of costs to be diverted to the concerned District Legal Services Authority rather than going to the petitioners. This Court said,- ''Ordinarily, as a result of the aforesaid, this Court would have simply rejected the writ petition but for it being wholly frivolous a matter, this Court is constrained to further deal with the conduct of the 9 petitioners. It is noticed that by the order impugned, the learned trial court has also allowed costs to the petitioners in the sum of Rs.2,000/-; and, ordinarily, with the defendants-petitioners having been reasonably compensated for delay, this Court would not have considered any interference in such part of the order made in their favour but, by taking up the matter in this writ petition, the petitioners have shown their intention to use the rules of procedure for the purpose of causing delay in the proceedings; and the suggestions as made on behalf of the petitioners are to the effect as if a litigation would be preferred to be approached with technicalities and as if the court cannot have preference to decide the matters on merits and for that purpose cannot allow opportunity to a party to place the relevant material on record in exercise of its jurisdiction in the interest of justice. For their such conduct and approach, the petitioners-defendants have amply demonstrated that the trial court ought not to have awarded any costs to them.'' This Court also pointed out in the case of Shankar Lal (supra) that with amendment to the Code of Civil Procedure by the Amendment Act of 1999 and alteration in the scheme of its Section 115, the writ jurisdiction of this Court is, sparingly, considered for application in the case where impugned order would lead to manifest failure of justice or the like situation but this jurisdiction is not meant to provide an opportunity to any litigant to suggest such a proposition that is in opposition to the requirements of the decision of a lis on merits after affording fullest opportunity of hearing to the parties; or to somehow create spokes in the progress of the proceedings. This Court said,- 10 ''It is to be imbibed that rules of procedure are intended to subserve the cause of justice and any order made during the course of litigation pertaining to procedure that facilitates decision of real matter in issue on merits, and of extending opportunity to a party to place his case before the court, if not prohibited by law, ordinarily does not call for interference. After amendment to the Code of Civil Procedure by the Amendment Act of 1999 and alteration of the provisions of Section 115 CPC, the writ jurisdiction of this Court particularly under Article 227 of the Constitution of India is, sparingly, considered for application in the cases where the order impugned would result in manifest failure of justice or of the situation like nature but and however, such jurisdiction is not meant to provide an opportunity to any litigant to suggest a proposition that is in opposition to the requirements of the decision of a lis by the courts on merits after affording fullest opportunity of hearing to the parties; or to somehow create spokes in progress of the litigation.'' In the present cases, though the learned Trial Court has not awarded any costs and rightly so, but with the defendant- petitioner facing the suit for eviction and recovery of arrears of rent having approached in writ jurisdiction at the earliest possible opportunity with hyper-technical suggestion, this Court cannot help deducing that the petitioner would make all attempts, one way or the other, to delay disposal of these suits. Therefore, it appears appropriate to direct the learned Trial Court to keep the conduct of the petitioner in view and to proceed with the suits most expeditiously curbing against any proposition coming up from the defendant-petitioner that is intended to cause delay; and, subject to its convenience, the 11 Trial Court may consider setting the hearing on day to day basis or on short intervals. This Court would have further considered imposing costs on the petitioner for taking up these frivolous petitions but having regard to the fact that suit is at the initial stage and these petitions are being dismissed at the threshold with strict observations against the petitioner, such proposition of imposing costs on the petitioner is not taken up in these petitions but then, it shall be permissible for the learned Trial Court to impose costs on the petitioner if any delay is caused by him in the suit proceedings. With the aforesaid observations and requirements, these petitions stand rejected. A copy of this order be sent to the Trial Court. (DINESH MAHESHWARI), J. MK 12 S.B. CIVIL WRIT PETITION NO. 3464/2008 Harish Chandra Vs. The Addl.Civil Judge (Jr.Division) No. 2 Sujangarh & anr. Date of Order :: 26th May 2008 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Nitin Trivedi for the petitioner ... The petition stands dismissed vide common order made in S.B.Civil Writ Petition No.3463/2008 Harish Chandra Vs. The Addl. Civil Judge (Junior Division) No.2 Sujangarh and another. B.O. COURT MASTER