1 (1) DR.GOPAL KRISHNA GOYAL & ANR. VS. SMT.SARITA GOYAL &ANR. (S.B.CIVIL WRIT PETITION NO.5476/07) (2) DR.GOPAL KRISHNA GOYAL & ANR. VS. SMT.SARITA GOYAL &ANR. (S.B.CIVIL WRIT PETITION NO.5477/07) Dated:- 03 .02.2009. HON'BLE MR.JUSTICE SANGEET LODHA Mr. R.R.Nagori ) Mr. R.K.Thanvi )for the petitioners. Mr. Rakesh Arora , for the respondents. 1. These writ petitions are directed against order dated 30.7.07 passed by the learned Additional District Judge(F.T.), No.2, Pali in Civil Original Case No.16/07, whereby two applications, one under Order VII Rule 14 of Civil Procedure Code, 1908( in short “CPC” hereinafter) and another under Section 65 of the Evidence Act preferred by the plaintiff- respondent, have been allowed. 2 The writ petition no. 5477/07 relates to the acceptance of the application under Order VII Rule 14 CPC and the writ petition No.5476/07 relates to acceptance of the application under Section 65 of the Evidence Act. Since, both the applications have been decided by the learned trial court by a common order, therefore, both the writ petitions were heard together and are being disposed of by a common order. 3. The plaintiff-respondent filed a suit for the cancellation of 2 sale deed and general power of attorney against the petitioners- defendants. Precisely, the case set out by the plaintiff is that the suit property was jointly owned, possessed and used by the plaintiff and the petitioner-defendant no.1, however, on the basis of alleged general of power of attorney executed by the plaintiff in favour of defendant no. 1, the entire suit property has been sold by the defendant no. 1 in favour of his mother , the defendant no.2. The plaintiff claims that she has never executed the alleged general power of attorney dated 1.4.06 in favour of the defendant no.1. 4. The suit is being contested by the defendants by filing a written statement . The defendants have denied that the house and hospital were purchased through a registered sale deed from Smt. Indira Devi. According to the defendants, only house was purchased jointly by the plaintiff and the defendant no.1, however, the hospital was established in the said house by the defendant no.1 alone by installing valuable machines. It is further averred that in the written statement that after purchasing the house, the necessary changes and developments were made and the Eye hospital was also established in the suit property by the defendant no.1 by spending the money out of his own income and the plaintiff has contributed nothing in the establishment and development of the hospital in the house so purchased. Regarding the power of attorney, it is averred in the 3 written statement that the general of power attorney for half portion of the suit property was executed and got attested by the Notary Public by the plaintiff herself in favour of the defendant no. 1 on 1.4.06 and even the factum of sale of the suit property vide sale deed dated 7.8.06 was well within the knowledge of the plaintiff. 5. On the basis of the pleadings of the parties, the issues were framed by the learned trial court on 8.3.07 and the matter is presently posted for plaintiff evidence. 6. At this stage, the plaintiff preferred an application under Order VI Rule 17 seeking leave to amend the plaint on the ground that during the course of cleaning of the residential premises of the suit property, she has found certain documents therefore, it has become necessary to amend the plaint so as to incorporate the facts in respect of the documents so found. The amendment application was allowed by the learned trial court vide order dated 16.5.07. Thereafter, the plaintiff filed two applications on 13.7.07, one under Order VII Rule 14 seeking leave to produce certain documents and another u/s 65 of the Evidence Act seeking permission to lead secondary evidence with regard to a general power of attorney dated 23.6.06 executed by the defendant no. 1 in favour of his brother Mahesh Kumar Goyal. 7. It was contended on behalf of the plaintiff before the 4 learned trial court that the main dispute between the parties is as to whether the general power of attorney in question was executed by the plaintiff in favour of the defendant no.1, therefore, the documents sought to be produced reflect upon the relationship of the parties at the relevant time and therefore, the same are relevant to the subject matter of the dispute. The application was opposed on behalf of the defendants on the ground that the documents are not relevant to the dispute involved in the suit and the same cannot be permitted to be taken on record belatedly. 8. After due consideration, the learned trial court being of the opinion that the documents sought to be produced are not directly related to the dispute between the parties, however, the same are indirectly relevant to the dispute and therefore, the same deserves to be taken on record. 9. Regarding the application for permitting the plaintiff to lead secondary evidence with regard to the documents in question , the learned trial court opined that before seeking permission to lead secondary evidence , the requisite notice in terms of Section 65 of Evidence Act has not been served upon the defendants by the plaintiff but since, the defendants have denied that the said documents are in their possession therefore, it is not necessary for the plaintiff to serve the notice upon the defendants. Accordingly, the application preferred by the plaintiff 5 to lead the secondary evidence has been allowed. 10. It is contended by the learned counsel for the petitioners that the suit was filed by the plaintiff on 21.12.06 alongwith the list of documents, the written statement was filed on behalf of the defendants on 28.2.07 and after framing of the issues by the learned trial court on 8.3.07 the affidavit of the plaintiff was filed on 13.7.07 . Thereafter, on 13.7.07 itself ,the application under Order VII Rule 14 was filed stating therein that the documents in question were found while cleaning the residential portion of the suit property on 12.7.07. The learned counsel submitted that the stand taken by the plaintiff is absolutely false inasmuch as in an application preferred under Order VI Rule 17 of CPC on 5.5.07, the details with regard to the nomination of Shri Mahesh Kumar by the defendants as nominee have been specifically mentioned in para no. 6(d) of the application. That apart, the learned counsel submitted that the documents sought to be produced are not relevant directly or indirectly to the subject matter in issue . The learned counsel submitted that the learned trial court has committed an error in holding that these documents can throw light on circumstances of the subject matter and thus, the same are indirectly relevant. Accordingly, it is submitted by the learned counsel that in view of the provisions of Order VII Rule 14, the order impugned passed by the learned trial court is not sustainable in eye of law. 6 11. Assailing the validity of order impugned, allowing the application u/s 65 of Evidence Act, the learned counsel submitted that in the application preferred, it has been specifically mentioned by the plaintiff that the power of attorney dated 23.6.06 is either in the power and possession of defendant no.1 or his brother Shri Mahesh Kumar Goyal and other documents are in possession of the defendant no.1, however, while seeking permission to lead secondary evidence in respect of these documents, no notice as required by the provisions of Section 65 and 66 was served by the plaintiff upon the defendant no. 1 or Shri Mahesh Kumar Goyal. The learned counsel contended that the service of the notice in terms of provisions of Section 66 of Evidence Act is mandatory therefore, the application preferred was liable to be rejected on this count alone. The learned counsel submitted that Shri Mahesh Kumar Goyal alleged to be in possession of one of the document is certainly within the reach of the court therefore, non service of the notice to him before seeking permission to lead secondary evidence vitiates the impugned order passed by the learned trial court. 12. Per contra, the learned counsel appearing on behalf of the respondents has reiterated the stand taken before the learned trial court and submitted that the order impugned does not suffer from any infirmity or illegality warranting interference by this court in exercise of its supervisory jurisdiction under Article 7 227 of the Constitution of India. 13. I have considered the rival submissions and perused the material on record. 14. As per provisions of Order VII Rule 14(3), a document which ought to have been produced in the court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint but, it is not produced or entered accordingly, shall not be without the leave of the court , be received in evidence on his behalf , at the hearing of the suit. 15. It is true that the provisions incorporated by the legislature in its wisdom requiring filing of the documents at the appropriate stage, has been incorporated to avoid unnecessary delay in adjudication and for expeditious disposal of the lis between the parties. Therefore, the party to the suit who wants to produce the documents at the belated stage must satisfy the court that the document sought to be produced could not be produced at the appropriate stage on account of the fact that the same were not in possession or he had no knowledge about the existence of the same. Suffice it to say that the plaintiff cannot claim filing of the document at the belated stage without furnishing the satisfactory explanation regarding the non production of the document at the appropriate stage. But then, it is settled law that the rules of procedures are hand maiden of justice and the cause of justice cannot be permitted to be 8 defeated on account of failure to observe the procedure laid down strictly. 16. In the instant case, after due consideration of the facts and circumstances of the case, the explanation furnished by the plaintiff has been found satisfactory by the learned trial court. In considered opinion of this Court, the document sought to be produced reflecting upon the relationship of the parties at the relevant time cannot be said to be not germane to the matter in dispute. That apart, there is no reason as to why the order passed by the learned trial court as aforesaid to meet the ends of justice should be interfered with by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. In this regard, the reliance may be placed on the decision of the Hon'ble Supreme Court in the matter of “Sadhna Lodh vs. National Insurance Co.Ltd.” , (2003) 3 SCC, 524, wherein while dealing with the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India , the Court has observed as under:- “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct and error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh 9 the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.” 17. Moreover, on the basis of these very documents amendment of the plaint sought for by the plaintiff has been allowed by the learned trial court vide order dated 16.5.07 and the writ petition( No.5475/07) preferred by the petitioners against the said order passed by the learned trial court granting leave to amend the plaint has been dismissed by this court today. Therefore, for the parity of reasons, the writ petition assailing the order passed by the learned trial court taking the documents on record also deserves to be dismissed. 18. Coming to the application u/s 65 of the Evidence Act preferred by the respondent-plaintiff , it is to be noticed that the purpose of issuing notice to the person in possession of the document in terms of Section 66 of the Evidence Act is to give an opportunity to the party to produce the original so as to secure the best evidence of its contents. In the instant case, in the reply to the application, the defendant no. 1 has specifically denied having possession of document in question therefore, merely because the notice in terms of Section 66 has not been given , the order impugned passed by the learned trial court permitting the plaintiff to produce secondary evidence cannot be interfered with. Moreover, as per proviso to Section 66, apart from the clauses (1) to (6) which specify the circumstances 10 wherein no notice is required in order to render secondary evidence admissible , the requirement of the notice can always be dispensed with when the courts think fit. 19. In this view of the matter, in my considered opinion , on the facts and in the circumstances of the case, the order passed by the learned trial court permitting the respondent-plaintiff to lead secondary evidence also does not suffer from any error warranting interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 20. In the result, the writ petitions fail, the same are hereby dismissed. (SANGEET LODHA),J. Aditya/-