Writ Petition No.61 of 2014,Writ Petition No.62 of 2014

23rd April, 2014

Petitioner Counsel: Shri NIGEL DA COSTA FRIAS
Respondent Counsel: Shri J. CARDOZO, Shri G. NAGVEKAR

Cases Cited:
Surya Dev Rai Vs. Ram Chander Rai & Ors, 2006 SCC 675 [Para 8,12]
Shalini Shyam Shetty Vs. Rajendra Shankar Patil, 2010 ALL SCR 1681 [Para 8,12]

JUDGMENT

JUDGMENT :- Heard finally by consent. Rule returnable forthwith.

2. Mr. J. Cardozo, learned counsel waives notice on behalf of the contesting respondent no.1 on merits.

3. Both these petitions are connected with each other and challenge trial Courts orders dated 2.8.2013 rejecting the applications filed under Order 14 Rule 3 of CPC for production of documents on identical grounds and, therefore, are being disposed of by this common judgment.

4. After hearing both sides, the only point that arises for consideration in this Writ Petition is:-

Whether the orders dated 2.8.2013, rejecting production of additional documents are so perverse and arbitrary as to warrant interference by this Court in exercise of Writ jurisdiction under Article 227 of the Constitution of India?

5. On going through the impugned orders, it is seen that the only reason stated therein is that one of the documents that was sought to be produced in evidence, a plan drawn in the year 1982, did not find any mention in the plaint and this plan also did not appear to be relied upon by the plaintiffs/petitioners, as seen from the averments in the plaint.

6. Learned counsel for the petitioners submits that this plan was forming a part of the plaint and it is specifically mentioned in paragraph 2 of the plaint that it is annexed to the plaint at Exh. A. He submits that there is no mention of the year in which this plan was prepared and also the name of the engineer who had drawn this plan. But, the fact remains that it was the same plan which was drawn in the year 1982 by Engineer Suhas Naik. He further submits, when this plan was not allowed to be produced on the ground that it was not a signed plan, it became necessary for the plaintiffs to get prepared the same plan together with the report from the concerned Engineer. He further submits that the suits of the plaintiffs/petitioners are based upon the case that these respondents are causing obstruction in the suit property and, therefore, the plan of the suit property assumes importance as without the plan, it would not be possible for the plaintiffs to prove their case. He also submits that this is not a case wherein any attempt has been made by the petitioners to fill up the lacuna. He further submits that these aspects have not been considered by the trial Court which has resulted in the unreasoned and arbitrary orders passed on 2.8.2013.

7. Shri J. Cardozo, learned counsel for the respondent on the other hand submits that no fault can be found with the impugned orders as there has been no reference in the plaint to the documents sought to be produced in evidence subsequently. He has invited my attention to the admission given by the plaintiffs in cross examination which indicates that plaintiffs/petitioners did not even remember the name of the person or surveyor who had drawn up the plan. He submits that this admission would show that now the petitioners by way of an after thought are only trying to fill up the lacuna in the case. He has also, during the course of arguments, placed on record copies of some documents which are copies of the depositions and copy of the application filed on 7.1.2014 regarding grant of permission for recalling of PW2 Suhas Naik and for reopening his evidence for the limited purpose of proving the plan at Exh.A. By referring to the documents, he submits that conduct of the petitioners is not bonafide and on this count also, the petition is liable to be dismissed.

8. Learned counsel for the respondent further submits that this is not a case wherein this Court could and should exercise supervisory jurisdiction under Section 227 of the Constitution of India as the error, if at all there be, is capable of being corrected in appeal or revision, as the case may be. For this submission, he places his reliance upon the law laid down in this regard by the Apex Court in the case of Surya Dev Rai vs Ram Chander Rai & Ors, 2006 SCC 675 and also in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil, 2010 ALL SCR 1681.

9. It is true that in the plaints there are no specific averments that the plan annexed to them at Exh. A was prepared in the year 1982 and that it was prepared by Engineer Suhas Naik. But, the fact remains that there is a reference to a plan on which reliance has been specifically placed by the petitioners. There is thus foundation laid in the plaints, at least for the plan at Exh.A, and therefore, it cannot be said that there is an attempt to fill up the lacuna. Whether this plan was prepared in the year 1982 or subsequently in the year 2013 and whether it is a different plan from that annexed to the plaints, are all matters of specifics of the plan and hence are the matters of evidence. But, for absence of specifics of the plan in the plaint or for some admission given by the petitioner's witness about not remembering the name of the surveyor who drew the plan, doors of opportunity to prove their case cannot be shut on the petitioners or plaintiffs.

10. There is another perspective to this issue. By allowing the production of documents, the plan and the report, no prejudice would be caused to the respondent or defendant, as he would get an opportunity to show, by suitably cross-examining the concerned witness, that the plan and report subsequently filed are different or are of doubtful nature. On the other hand, if no opportunity is given to the petitioners or plaintiffs, they would be stopped at the threshold of the trial itself from proving their case thereby causing great prejudice to them. Such is not the object and purpose of Order 14 CPC, which is a rule of procedure. Object of rules of procedure and pleadings is to advance cause of justice and ensure that no side is taken by surprise by the documents not produced earlier or by the averments or the case not pleaded so as to prevent miscarriage of justice. This being so, I see no legal justification for rejection of production of the plan and the report as sought to be done by the petitioners.

11. Learned counsel for the respondent has pointed out that the petitioners have suppressed from this Court the fact of filing of an application on 17.1.2014 for recalling of the witness no.2 of the plaintiffs and therefore, this petition can be said to have been filed in a malafide manner. With due respect, I am unable to find myself in agreement with this contention. The application filed on 17.1.2014 from its nature looks to be entirely in a different domain and so far as the challenges involved in these petitions are concerned, they have no bearing on the submissions of the petitioners in this case. Therefore, this argument cannot be accepted.

12. Now, the question remains as to whether this is a fit case to interfere with the impugned order or not, in exercise of supervisory powers of this Court under Article 227 of the Constitution of India. The law is well settled in this regard, as seen from the judgments of Surya and Shalini (supra) relied upon by learned counsel for the respondent no.1. The jurisdiction is not to be exercised just on the drop of a hat and on a mere asking by the petitioners. It can also not to be exercised in all cases to correct every error. It can be exercised only when the order is so perverse and arbitrary that its continuation would result in miscarriage of justice. But, if the error is capable of being corrected in an appeal or revisional jurisdiction, this Court may refrain from embarking upon the process of correcting the same.

13. By following these principles of law, I find that the order impugned herein is the one which is required to be interfered with in exercise of supervisory jurisdiction of this Court under Article 227. Petitioners have come up with a case that the respondents are obstructing the suit property and whereas the respondents are claiming interest in the suit property. In such a case, importance of a plan depicting the suit property cannot but be emphasized. If the plan and report about which foundation is already laid, are not allowed to be produced in evidence and the plaintiffs are not given an opportunity to prove the same, the fate of the case of the plaintiffs would be sealed at the threshold itself. It would be something like fait-accompli for them which could not be changed even in appeal. On the other hand, no prejudice would be caused to the defendant who would get sufficient opportunity to grill the concerned witness and show from the pleadings and entire evidence of the plaintiffs as to how doubtful is their case. Viewed in this way, I am of the opinion that the impugned order is not capable of being corrected in appeal or revision and has to be interfered with in this petition and at this stage. The point is answered accordingly.

14. In the result, Writ Petition is allowed. The impugned order is quashed and set aside. The application filed by the petitioners for production of documents is allowed.

15. Appropriate opportunity be given to both the parties to adduce necessary evidence. Rule is made absolute in these terms. However, it is made clear that nothing observed in this judgment shall have any effect on the merits of the suit before the trial Court and learned Judge of the trial Court shall not be influenced by these observations in any manner while disposing of the suit in accordance with law.

16. In the circumstances, there shall be no order as to costs.

Petition allowed.