Citation: 2021 (1) Gauhati Law Journal 674
Case: Writ Petition (Civil) No.7928 of 2018 decided on17.9.2019.
Civil Procedure Code, 1908–Order 8 Rules 1A (3) and 9 and Foreigners’
Act, 1946, Section 9, Burden of proof–Duty of defendant to produce
documents upon which relief claimed or relied and Subsequent pleadings
–Documents sought to be introduced existed before petitioner had
submitted her written statement and adduced her evidence–Not
petitioner’s case that she could not obtain documents on an earlier point
of time, but her stand is that those documents were with ‘others’, but has
not explained why her documents would be kept by ‘others’–No bar for
petitioner from procuring certified copies of registered sale deed, land
revenue paid/clearance certificate from concerned Mouzadar in lieu of
land revenue paying receipts, voters lists, certificate issued by village
headman and fresh and/or duplicate PAN Card at the time of filing defence
675
evidence–No material to satisfy the Court that petitioner had exercised
due diligence by making a prayer before Tribunal to summon concerned
official witnesses with original public record so as to prove relevant
documents, which could not be recovered from custody of ‘others’–
Petitioner has not indicated nature and contents of subsequent written
statement and statements are vague, no blanket leave to introduce
subsequent pleadings–Petitioner made an attempt to fill up lacuna which
remained after evidence of petitioner closed and case fixed for argument–
No case is made out for allowing to introduce additional pleadings as
additional written statement–Dismissal of petition upheld. Para 7, 11, 14
Civil Procedure Code, 1908–Order 18 Rules 17 and Foreigners’ Act,
1946, Section 9, Burden of proof–Court may call and examine witnesses–
Trial concluded and case was fixed for argument and at that stage, petition
filed–Provision is for recall of witness for further examination-in-chief
or cross examination or to place additional material or evidence–Court
may permit a party to recall witness or fresh evidence (i) where application
is bonafide, (ii) leading additional evidence, oral or documentary, would
assist Court to clarify evidence on issues, (iii) such measure would assist
the Court in rendering justice, and (iv) if Court is satisfied that earlier
non-production was for valid and sufficient reasons and if these
conditions are not present, open for Court to not entertain such a petition–
Power under Order 18 Rule 17 is discretionary and should be used
sparingly and cannot be used to fill up any omissions in evidence of
witness who had already been examined–Main purpose of Order 18 Rule
17 is to enable Court, while trying a case, to clarify any doubts which it
may have with regard to evidence led by parties and not intended to be
used to fill up omissions in evidence of a witness who has already been
examined–Dismissal of petition upheld.
Para 13, 14
Case discussed–Union of India vs. Ibrahim Uddin, (2012) 8 SCC 148; Ram Kishan vs.
Harak Chand, (1999) 0 Supreme (Raj) 872; River Valley Tea Company Pvt Ltd vs. Assam
Gas Company Ltd, 2019 (1) GLJ 437; Gayathri vs. M. Girish, (2016) 14 SCC 142; Vadiraj
Nagappa Vernekar (Dead) vs. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410.
Advocates appeared in the case–Mr. MU Mahmud for the petitioners; Mr. J. Payeng,
Ms A. Borgohain, Ms U. Das for the respondents.
JUDGMENT AND ORDER
K. R. Surana, J–
Heard Mr. MU Mahmud, the learned counsel for the
petitioner. Also heard Mr. J. Payeng, learned Standing Counsel for the
respondent Nos 2, 5 and 6, Ms A. Borgohain, learned counsel for respondent
No.3 and Ms U. Das, learned Standing Counsel for respondent No.4.
2.
By filing this writ petition under Article 226 of the Constitution of India,
the petitioner has challenged the interlocutory order dated 1.10.2018, passed
by the learned Foreigners’ Tribunal No.3, Nalbari in FT Case No.147/2018.
By the said impugned order, the learned Tribunal had rejected two petitions
filed by the petitioner bearing No.1101 and 1102 dated 10.8.2018. The petition
No.1101 was under provisions Order VIII Rule 9 read with Order VIII Rule
1A (3) read with section 151 of the Civil Procedure Code for allowing her to
file her additional written statement and for producing additional documents.
MUSTT NILBHAN vs. UNION OF INDIA
676
GAUHATI LAW JOURNAL
2021 (1) GLJ
The petition No.1102 dated 10.8.2018 was filed under the provisions of Order
XVIII Rule 17/17A for recalling and the examining witness.
3.
The learned counsel for the petitioner has submitted that the petitioner
is a poor and illiterate lady. Through her engaged counsel she had filed her
written statement and had adduced evidence by examining witnesses. It is
submitted that at the time of filing the written statement and evidence some
vital points have been left out, which were not previously known to her.
Moreover, some relevant and important documents prior and after 1971
were in custody of others and now the documents has been traced out by
her. It is submitted that those documents could not be procured and
produced at an earlier stage despite due diligence. It is also submitted that
the citizenship of the petitioner is at stake and, as such, the petitioner had
prayed for one opportunity to file additional written statement and to file
additional documents in support of her stand. By referring to the documents
mentioned in Petition No.1101, it is submitted that the documents sought
to be produced are (1) Registered sale deed dated 30.12.1962 in the name of
the father of the petitioner, (2) Land revenue paying receipt in the name of
the father of the petitioner, (3) Voters list of 1970, 1985, 1993, 2010, 2014 etc
in the name of the father of the petitioner, (4) Certificate issued by the village
headman of Village-Banpora and (5) PAN Card in the name of the petitioner.
It is submitted that in Petition No.1102, the petitioner had specifically prayed
for recalling and/ or for re-examination of the petitioner to prove the
documents which could not be produced despite due diligence of the
petitioner at the time of tendering evidence in her support.
4.
In support of his submissions, the learned counsel for the petitioner
has relied in the case of
Union of India vs. Ibrahim Uddin & another,
(2012) 8 SCC 148
as well as the case of
Ram Kishan vs. Harak Chand,
(1999) 0 Supreme (Rajasthan) 872
to project that if additional evidence left
out in the trial stage can be allowed to be introduced by invoking the
provisions of Order XLI Rule 27, CPC, there is no reason for the learned
Tribunal to deny such opportunity to the petitioner at the trial stage.
5.
We have heard the learned counsel for the parties and have perused
the documents annexed to the writ petition. It would be relevant to observed
herein that in the order dated 19.12.2018, this Court had mentioned that it
was not inclined to requisition records as the matter involves decision only
on law points.
6.
As per the statements made in the Petition No.1101, the stand of the
petitioner is as follows - (i) that at the time of filing written statement some
vital points were left out which were not previously known, (ii) some rele-
vant documents prior to and after 1971 were in custody of others, (iii) now
those documents has been traced out, (iv) the documents could not be
produced earlier despite due diligence, (v) some important points have
come to light with regard to the facts of the case, (vi) the earlier engaged
counsel could not argue some important points in support of the issues
during the course of trial, (vii) new counsel was engaged, (viii) the documents
sought to be produced are morefully described in paragraph 3 above.
677
7.
Thus, it is seen that all the documents now sought to be introduced
are all documents which existed before the petitioner had submitted her
written statement and adduced her evidence. It is not the case of the
petitioner that she could not obtain the documents on an earlier point of
time, but her stand is that those documents were with ‘others’, but the
petitioner has not explained why her documents would be kept by ‘others’.
Even by assuming that the documents were withheld by ‘others’, but
certainly no one had prevented the petitioner from procuring certified copy
of (i) Registered sale deed dated 30.12.1962, (ii) land revenue paid/clearance
certificate from the concerned Mouzadar in lieu of land revenue paying
receipts, (iii) voters list of 1970, 1985, 1993, 2010, 2014, (iv) Certificate issued
by the village headman of Village-Banpora, and (5) a fresh and/or duplicate
PAN Card at the time of filing defence evidence i.e. while examining defence
witnesses. It is also not the case of the petitioner that she had made a prayer
before the learned Tribunal to summon the concerned officials to produce
the public records and to prove the documents, which are now sought to
be produced. Thus, we find no material on record which can satisfy the
Court that the petitioner had exercised due diligence by making a prayer
before the learned Tribunal to summon the concerned official witnesses
with original public record so as to prove the relevant documents, which
could not be recovered from the custody of ‘others’. Thus, the one and only
conclusion is that by filing Petition Nos 1101 and 1102 dated 10.8.2018, the
petitioner has made an attempt to fill up the lacuna which remained after
the evidence of the petitioner was closed and the case was fixed for argument.
8.
In order to appreciate the submissions by the learned counsel for the
petitioner, it would be appropriate to quote Rule 9 of Order VIII CPC :
“9. Subsequent pleadings -
No pleading subsequent to the written statement of
a defendant other than by way of defence to set-off or counter-claim shall be presented
except by he leave of the Court and upon such terms as the Court thinks fit; but the
Court may at any time require a written statement or additional written statement from
any for the parties and fix a time of not more than thirty days for presenting the same.”
9.
On a perusal of the said provisions, it is seen that the said provisions
contains a non obstante clause.
10.
The learned counsel for the petitioner has referred to the case of
Ibrahim Uddin (supra)
and
Ram Kishan (supra)
and thereby it has been
argued that if additional evidence can be permitted at the appellate stage
by invoking the provisions of Order XLI Rule 27, CPC, there was no reason
for the learned Tribunal to disallow additional written statement and
additional evidence to be adduced to prove the documents. In this regard
we would observe that this Court is not exercising jurisdiction as an
appellate Court. As such, appreciation of the matter in light of the provisions
of Order XLI Rule 27, CPC is neither required nor appropriate to be invoked
by this Court. As of now, the subject matter of this writ petition is that the
learned Tribunal had rejected two petitions filed by the petitioner. Petition
No.1101 was filed under Order VIII Rule 9 CPC and Petition No.1102 was
filed for recalling and re-examining herself to prove additional documents
MUSTT NILBHAN vs. UNION OF INDIA
678
GAUHATI LAW JOURNAL
2021 (1) GLJ
sought to be brought on record. The said petition was filed under the provisions
of Order XVIII Rule 17/17A CPC as well as section 138 of the Evidence Act.
11.
The matter relating to Petition No.1101 is taken up first. It is seen
that in the said petition, the petitioner has not indicated what would be the
nature and contents of the subsequent written statement. The statements
are vague and, as such, if such a vague petition is allowed, we do not know
what pleadings may eventually turn up in the additional written statement.
In this regard, we may refer to the decision of this Court in the case of
River
Valley Tea Company Pvt Ltd vs. Assam Gas Company Ltd (CRP 207/2017)
decided on
26.9.2018
Judgment Date: 17.9.2019
Judges: MANOJIT BHUYAN AND KALYAN RAI SURANA, JJ