HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL REVISION PETITION No.5655 OF 2010 Dated 27-10-2014 Between:
Farhat Jahan Begum Farhat Jahan Begum and others.
And:
...Petitioners.
Moinuddin Khan and others.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL REVISION PETITION No.5655 OF 2010 ORDER:
This revision is preferred objecting marking of documents produced by witness i.e., D.W.2 who sought to be examined on behalf of defendants.
Heard both sides.
As seen from the record, the suit is filed for declaration of title and cancellation of sale deeds and also consequential injunction wherein the defendants resisted claim of the plaintiff. Now, D.W.2 during his chief examination filed a list of documents numbering 72 (seventy two only) along with his chief examination affidavit and the 3rd plaintiff who is representing other plaintiffs and prosecuting the case, objected for receiving documents on the ground that without making necessary application to condone delay in filing documents, those documents cannot be received by the court.
Learned trial judge passed docket order dated 11-11-2010 overruling the objection of the plaintiff but deferred the examination and posted the case to 18-11-2010 for continuation of examination of D.W.2 and marking of documents. Challenging the said order, the present revision is filed.
Heard both sides.
Main objection of advocate for revision petitioners is that there is no procedure contemplated either in Civil Procedure Code or Civil Rules of Practice allowing a witness to produce documents and since the witness was called on behalf of the defendants, he has to follow order VIII Rule 1 (A) Sub-Rule 3. He further submitted that the documents cannot be produced to the surprise of all the plaintiffs and they should know as to the details of documents that are going to be relied on either by the witness or by the defendants, and contended that on these two grounds, the order of the learned trial judge is not legal.
Learned counsel for the defendants submitted that considering the fact that the suit is of the year 2004 and the documents are registered documents, court below permitted the witness to produce the documents and posted it for marking of documents.
Now the point that would arise for my consideration in this petition is whether the order impugned is legal, correct and proper?
POINT:
I have perused the material papers filed along with revision petition.
Admittedly, when the witness came into witness box on 11-11-2010, he came with chief affidavit and counsel for 3rd plaintiff objected for receiving the documents, mainly on the ground that witness has to file application to condone the delay in filing the documents but as seen from Civil Procedure Code and Civil Rules of Practice, only parties are expected to file a petition to receive documents, if the documents are not filed within the time either with the plaint or with written statement. So far as witness is concerned as rightly pointed out there is no provision either in Civil Procedure Code or in Civil Rules of Practice contemplating filing of petitions to condone delay in filing the documents.
As seen from the record, it appears that D.W.2 has given a list of 72 documents and therefore, there cannot be any difficulty for the plaintiffs to know details of the documents. Further, examination of witness was differed on 11-11-2010 and now, we are in 2014, by this time, plaintiffs must have verified all the documents which are sought to be marked through D.W.2.
Order XVI of C.P.C. deals with list of witnesses and summons to witnesses. Rule 1-A deals with production of witnesses without summons. It may be relevant to examine the said provision which reads as follows:
ORDER XVI Summoning and Attendance of Witnesses.
(1) xxxx
(2) xxxx
(3) xxxx
(4) xxxx.
Rule 1-A. Production of witnesses without summons:-
“Subject to the provisions of sub-rule (3) of Rule 1, any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents.”
From the above rule, it is clear that a party may bring any witness to give evidence or to produce documents subject to expenses to be paid to the witnesses.
On a scrutiny of above rule, I am of the view that the learned trial judge has not committed any illegality or irregularity in posting the matter for marking documents through D.W.2 and the order of the learned trial judge is a well reasoned order and there are no grounds to interfere with the same.
For the above reasons, leave is granted to defendants for production of documents through D.W.2 subject to payment of costs of Rs.1,000/- (Rupees one thousand only) to plaintiffs at the time of marking of documents. Liberty is given to the plaintiffs to file appropriate petition or memo before the trial court reserving their right of rebuttal evidence in respect of documents which are now filed through D.W.2.
Since the suit is of the year 2004, the court below is directed to dispose of the suit, as expeditiously as possible, preferably, within four months from the date of receipt of this order.
Revision is dismissed with the above observations.
As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 27-10-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CIVIL REVISION PETITION No.5655 OF 2010 Dated 27-10-2014