Allowed

Laxman v. Parusram and Ors.

Rajasthan HC9 Feb 2018CW/23443/2017

Case brief

AI extract

What is this about?

The High Court quashed the trial Court's order rejecting the petitioner's application under Order 13 Rule 10 CPC for production of an agreement document in police possession. The Court held the trial Court erred in believing the application was not maintainable and directed the document be produced on record.

What did the court decide?

The impugned order dated 29.11.2017 is quashed. The application is allowed and the document is ordered to be brought on record.

Laxman Vs Parusram and Ors. — Property and Title | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 23443 / 2017

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Laxman S/o Shri Girraj Prasad, by Cast Brahmin, Resident of Madoli, Tehsil & District Bharatpur.

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----Petitioner

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Versus

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Parusram Son of Girraj Prasad

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Deena Son of Shri Parusram

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Rupa Son of Shri Parusram

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Harendra Son of Shri Parusram

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Ramwati Wife of Shri Parusram

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Meera Wife of Deena, All by Cast Brahmin, Resident of Madoli, Tehsil & District Bharatpur.

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Laxman S/o Tunda, B/c Jatav, R/o Village Ludhawai, Tehsil & District Bharatpur.

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----Respondents

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_____________________________________________________ For Petitioner(s) : Mr. Nikhlesh Katara.

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For Respondent(s) : Mr. Yogesh Singhal.

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order

09/02/2018

Reportable

(1) The petitioner by way of this writ petition challenges the order dated 29.11.2017 passed by Additional Civil Judge & Judicial Magistrate, First Class, No.2, Bharatpur (Raj.) (hereinafter to be referred as ‘learned trial Court’) whereby application moved by the petitioner-plaintiff under Order 13 Rule 10 readwith Section 151 of Civil Procedure Code, 1908 has been rejected.

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(2 of 5)

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[CW-23443/2017]

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(2) Learned Counsel for the petitioner submits that he moved an application under Order 13 Rule 10 readwith Section 151 CPC wherein he pointed out that the defendants in their written statement mentioned about the agreement entered into between the petitioner-plaintiff and third party on 19.07.2007. Averments relating to the said agreement have been referred to by the defendants as a part of his defence. The document agreement dated 19.07.2007 has been a subject matter of proceedings initiated by the petitioner-plaintiff by filing an FIR No.412/2013 at Police Station, Bayana against the said third party as well as against the defendants wherein the police has taken into possession the said original document dated 19.07.2007. Keeping in view that the original document agreement dated 19.07.2007 is relevant for the purpose of true and correct disposal of the present suit, the application was moved under Order 13 Rule 10 CPC praying for directing the concerned police station to place the same on record and to produce it before the Court. It was asserted that the document was a relevant piece of evidence and necessary and, therefore, it may be called for.

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(3) Learned Counsel submits that the trial Court has fallen in error in rejecting the application of the petitioner. It is submitted that the trial Court while rejecting the application of the petitioner has limited the scope of Order 13 Rule 10 CPC to mean calling record or document from another Court alone and would not extend to documents which are in possession of police authorities as in the present case. The trial Court has rejected the application of the petitioner on the ground that the same is not

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(3 of 5)

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[CW-23443/2017]

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relevant without even examining the document itself. He also relies on the law laid down by the Apex Court in the case of Lakshmi & Anr. Vs. Chinnammal Alias Rayyammal & Ors.

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(2009) 13 Supreme Court Cases 25.

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(4) Per contra, learned Counsel for the respondents submits that there was no necessity for calling of the document as the same was wholly irrelevant for the purpose of disposal of the suit. Further the petitioner was required to satisfy the concerned Court regarding the necessity of the document for the purpose of justice and there was no reason that the original document ought not to have been produced when the plaintiff had filed the suit as the document had been recovered by the police subsequently. Learned Counsel further submits that the application has been moved unnecessarily and earlier also an application under Order 11 Rule 12 CPC filed by the petitioner had been rejected by the trial Court. Learned Counsel relies on judgment passed by the Karnataka High Court reported in AIR 1989 Karnataka 61 ;

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Papanna & Ors. Vs. H.Doodde Gowda & Ors.

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(5) Having heard both the Counsel at length and after examining the record available with the file, I find that the petitioner has mentioned in his application the relevancy and necessity for calling of the original agreement dated 19.07.2007 which was in possession of the police authorities. Admittedly in relation to the said agreement an FIR has been lodged by the plaintiff-petitioner as against the respondents. Thus, the said agreement becomes relevant in a case filed by the present petitioner since it relates to the land bearing the same Khasra’s

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(4 of 5)

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[CW-23443/2017]

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which are part of the said agreement. Merely because the application under Order 11 Rule 12 CPC was rejected would not in any manner come in the way of the petitioner to move the present application under Order 13 Rule 10(2) CPC as the same does not bar the petitioner. Even otherwise the nature of application under Order 11 Rule 12 CPC is totally different than that of application under Order 13 Rule 10(2) CPC. While under Order 11 Rule 12 CPC the application is moved when it is found or reasonably believed that the document is in possession of the other party namely the defendants. However, once the Court rejects such an application and concerned party comes to have knowledge of the Court or any other authority having possession of the said document, it can move an application under Order 13 Rule 10(2)CPC for calling the same. My view is supported by the law as cited by learned Counsel for the petitioner in Lakshmi & Ors. (supra) wherein the Apex Court has held as under : -

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“12. In that view of the matter, the learned Trial Judge, in our opinion, committed a manifest error in holding that requisite particulars have not been furnished by the appellants. Furthermore, the learned Trial Judge himself had allowed a similar application so far as the opinion of the handwriting expert was concerned. It is, therefore, difficult to comprehend as to on what basis a similar prayer made by the appellant in regard to the opinion of the finger print expert could be held to be not maintainable.

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If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court's duty being to find out the truth. The procedural mechanics necessary to arrive at a just decision must be encouraged. We are not unmindful of the fact that the court in the said process would not encourage any fishing enquiry. It would also not assist a party in procuring a document which he should have himself filed.

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There cannot furthermore be any doubt that by calling for such documents, the Court shall not bring

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(5 of 5)

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[CW-23443/2017]

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about a situation whereby a criminal proceeding would remain stayed as it is a well settled principle of law that where a Civil proceeding as also a Criminal proceeding is pending, the latter shall get primacy.”

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(6) Having noticed the law as above and taking into consideration the facts and circumstances of the case, I find that the judgment as cited by the learned Counsel for the respondent does not have any application to the present case. The judgment only cautious the Court to judicially apply its mind before passing order on the application under Order 13 Rule 10 CPC. Having noted so, I find that the trial Court has fallen in error in passing the order dated 29.11.2017, the same is quashed and set aside.

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(7) The writ petition is allowed.

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(8) The application moved by the petitioner stands allowed.

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The document is ordered to be brought on record by directing to be produced accordingly.

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(SANJEEV PRAKASH SHARMA)J.

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N.Gandhi/68

Laxman v. Parusram and Ors.

Case brief

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Laxman v. Parusram and Ors.

Case brief

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