# Colonel Mukul Dev v. Smt. Deveshwari Devi

- **Citation:** (2022) 10 ILRA 1080
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-19
- **Case number:** Matters under Art. 227 (Civil) No. 4126 of 2019
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/colonel-mukul-dev-v-smt-deveshwari-devi-47669
- **Pages:** 7

## Headnote

A. Civil Law - Declaration and Injunction -
Code of Civil Procedure, 1908 - Order VII
Rule 14, Order XIII Rule 1, Order XVIII
Rule 4, Order XVIII Rule 17-A, Order XIII
Rule 1(3) - Under the specific provisions of
CPC i.e. under Order VII Rule 14 and under
Order XIII Rule 1, the Court had no power to
allow the parties to adduce further evidence
after the relevant stages were over. The
relevant stages were: (i) when the suit was
filed; and (ii) before the issues were settled.
(Para 6)

B. U/Order XIII Rule 1(3) CPC, document could
be produced for the cross-examination of the
witnesses but this does not mean that
documents could be produced even after the
cross-examination had concluded. It was the
bounden duty of the Court to have, even u/s
151 CPC, seen as to whether the documents
which were being sought to be produced, were
within the knowledge of the parties who were
trying to produce the document or whether
even after exercise of due diligence, the
documents could not be produced by the party
which was producing the document at the
relevant point of time. (Para 7)

The plaintiff was required to file all the
relevant documents, when the suit was filed
and
before
the
issues
were
settled.
However, the Court finds that nowhere in
the CPC is there any prohibition for bringing
any document by way of additional evidence
subsequently and, therefore, if in the
interest of justice any document was to be
produced then the Court had to use its
power with circumspection and care and
when the bona fide of the applicant could
not be doubted and also when it was
absolutely essential to bring on record the
additional evidence to meet the ends of
justice. (Para 8)

The plaintiff had not exercised the right which
she had. The Court, finds that when the case of
the plaintiff was dependent upon the two wills
dated 29.4.1974 and 19.5.2002 then definitely
the two wills ought to have been brought on
record either at the time of filing of the suit or
before the settlement of the issues. Keeping in
mind that injustice may not occur, the Court
under its powers under section 151 C.P.C.
directs that the documents may be taken on
record as additional evidence. (Para 8)

Under such circumstances, the impugned order
by which the documents were allowed to be
taken on record, is not being interfered with.
Any other document should not be allowed to
be taken as evidence. (Para 9)

The documents which have been permitted to
be taken on record by this Court were available
to the plaintiff at the time when the suit was
filed and also at the time when the issues were
settled, the Court concludes that the plaintiff for
this
carelessness
and
laxness
should
be
penalized. (Para 10)

Writ petition partly allowed. (E-4)

Precedent cited:

Subhash Chander Vs Bhagwan Yadav, 2010
(114) DRJ 306 (Para 5)

Precedent distinguished:

K.K. Velusamy Vs N. Palanisamy, (2011) 11
Supreme Court 275 (Para 5, 7)

Present
petition
assails
order
dated
26.02.2019, passed by the Trial Court,
permitting
the
plaintiff-respondent
to
bring on record some of the documents
after the evidence was closed.

## Text

1080 INDIAN LAW REPORTS ALLAHABAD SERIES
has
five
years
experience
from
a
recognized School in addition to other
qualifications would be eligible for the post
of Headmaster in order to qualify after
amendment. A teacher is required to have
an essential qualification of T.E.T. after
amendment in Rule 4 on 5.12.2012,
therefore it flows therefrom that the
candidates from the post of Head Master
also have possessed the qualification of
T.E.T.. The petitioner being appointed prior
to the amendment prescribing T.E.T.
qualification on the post of Assistant
Teacher is not required to have T.E.T.
qualification for the post of Head Master.

18.
In writing
the
impugned
judgment, the learned Single has also
followed the law laid down in Om
Prakash Tripathi's case (supra) and we
see no reason to differ from it. Assuming
that the National Council for Teacher
Education
(NCTE)
Guidelines
dated
11.02.2011, issued under Section 12(d)
read with Section 12A of the National
Council for Teacher Education Act,
1993 and Section 23 of the Right of
Children to Free and Compulsory
Education Act, 2009, prevail over the
1978 Rules as they stood prior to the Sixth
Amendment w.e.f. 05.12.2012, for reason
of the Central law prevailing over the
State law on a subject falling in the
concurrent list, as held in Om Prakash
Tripathi's case (supra), the writ petitioner
was appointed as an assistant teacher in a
recognized school on 01.07.2009. At that
time, there were no NCTE Guidelines at
variance with the 1978 Rules. Thus, at the
time that the writ petitioner was appointed
as an assistant teacher, there was no
requirement of passing the TET. The writ
petitioner,
therefore,
was
validly
appointed an assistant teacher and at the
time of consideration of her candidature
for the post of Headmistress, neither the
amendment made to the 1978 Rule w.e.f
05.12.2012 nor the NCTE Guidelines, that
came
after
the
writ
petitioner's
appointment as an assistant teacher, can be
read
retrospectively
to
render
her
appointment as an assistant teacher a
nullity. The writ petitioner was validly
appointed as an assistant teacher. Her
experience as such, in recognised schools,
qualifies her for the post of a headmistress
under the 1978 Rules. This is particularly
so, inasmuch as there is no requirement
for a headmistress as such, passing the
TET under the 1978 Rules. No other
provision has been brought to our notice,
which may directly require a headmistress
of a Junior High School to pass the TET
for the purpose of maintaining her
candidature as such.

19. No other point was pressed.

20. In view of the aforesaid facts, we
do not find any merit in this appeal. It is
dismissed.
----------
(2022) 10 ILRA 1080
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 19.09.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Matters under Art. 227 (Civil) No. 4126 of 2019

Colonel Mukul Dev ...Petitioner
Versus
Smt. Deveshwari Devi ...Respondent

Counsel for the Petitioner:
Sri Vinayak Mithal

Counsel for the Respondent:
Sri Avneesh Tripathi, Sri Sikhar Tondon
10 All. Colonel Mukal Dev Vs. Smt. Deveshwari Devi
1081
A. Civil Law - Declaration and Injunction -
Code of Civil Procedure, 1908 - Order VII
Rule 14, Order XIII Rule 1, Order XVIII
Rule 4, Order XVIII Rule 17-A, Order XIII
Rule 1(3) - Under the specific provisions of
CPC i.e. under Order VII Rule 14 and under
Order XIII Rule 1, the Court had no power to
allow the parties to adduce further evidence
after the relevant stages were over. The
relevant stages were: (i) when the suit was
filed; and (ii) before the issues were settled.
(Para 6)

B. U/Order XIII Rule 1(3) CPC, document could
be produced for the cross-examination of the
witnesses but this does not mean that
documents could be produced even after the
cross-examination had concluded. It was the
bounden duty of the Court to have, even u/s
151 CPC, seen as to whether the documents
which were being sought to be produced, were
within the knowledge of the parties who were
trying to produce the document or whether
even after exercise of due diligence, the
documents could not be produced by the party
which was producing the document at the
relevant point of time. (Para 7)

The plaintiff was required to file all the
relevant documents, when the suit was filed
and
before
the
issues
were
settled.
However, the Court finds that nowhere in
the CPC is there any prohibition for bringing
any document by way of additional evidence
subsequently and, therefore, if in the
interest of justice any document was to be
produced then the Court had to use its
power with circumspection and care and
when the bona fide of the applicant could
not be doubted and also when it was
absolutely essential to bring on record the
additional evidence to meet the ends of
justice. (Para 8)

The plaintiff had not exercised the right which
she had. The Court, finds that when the case of
the plaintiff was dependent upon the two wills
dated 29.4.1974 and 19.5.2002 then definitely
the two wills ought to have been brought on
record either at the time of filing of the suit or
before the settlement of the issues. Keeping in
mind that injustice may not occur, the Court
under its powers under section 151 C.P.C.
directs that the documents may be taken on
record as additional evidence. (Para 8)

Under such circumstances, the impugned order
by which the documents were allowed to be
taken on record, is not being interfered with.
Any other document should not be allowed to
be taken as evidence. (Para 9)

The documents which have been permitted to
be taken on record by this Court were available
to the plaintiff at the time when the suit was
filed and also at the time when the issues were
settled, the Court concludes that the plaintiff for
this
carelessness
and
laxness
should
be
penalized. (Para 10)

Writ petition partly allowed. (E-4)

Precedent cited:

Subhash Chander Vs Bhagwan Yadav, 2010
(114) DRJ 306 (Para 5)

Precedent distinguished:

K.K. Velusamy Vs N. Palanisamy, (2011) 11
Supreme Court 275 (Para 5, 7)

Present
petition
assails
order
dated
26.02.2019, passed by the Trial Court,
permitting
the
plaintiff-respondent
to
bring on record some of the documents
after the evidence was closed.

(Delivered by Hon'ble Siddhartha Varma, J.)

1. The respondent-plaintiff filed a suit
being Suit No.848 of 2002 for declaration
and also for a permanent injunction praying
that the suit property situate at 142,
Jattiwara, Meerut be declared as the
property of the plaintiff and also the
defendant be restrained by a permanent
injunction from causing any interference in
the peaceful possession and occupation of
the property 142, Jattiwara, Meerut. The
claim was set up by stating that the
husband of the plaintiff-respondent namely
late Surendra Dayal, who had expired on
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
17.6.2002, had bequeathed the property in
question by a will dated 19.5.2002. A
further allegation was there in the plaint
that the father of the deceased-husband of
the plaintiff late Sri Shiv Dayal had willed
his self-earned property on 29.4.1974 to the
deceased-husband of the plaintiff. The suit
was filed sometime in the year 2002 and
thereafter the petitioner-defendant Colonel
Mukul Dev filed a written statement on
18.6.2002. Thereafter issues were struck
and the parties submitted their affidavits by
way of examination-in-chief. The plaintiff
and the defendant were put to crossexamination and before the settlement of
the issues and at the time of filing of the
suit, all relevant documents, which were to
be
relied
upon
by
the
parties
as
documentary evidence in original, were
also filed. After the cross-examination of
the plaintiff who was produced as PW-1
and the cross-examination of PW-2 Smt.
Payal Agarwal, the daughter of the plaintiff
was concluded on 19.7.2018, the evidence
viz.-a-viz. the plaintiff was closed. The
defendant, after the production of his
affidavit
as
examination-in-chief
on
17.9.2018 was put to cross-examination
with effect from 5.11.2018. While the
evidence of the defendant-petitioner was
being adduced in the cross-examination,
the plaintiff filed an application no.155-C
on 22.2.2019 and sought permission to file
certain fresh documents as evidence. The
documents which were to be filed were
around 9 in number. The defendantpetitioner objected to the filing of fresh
evidence on 25.2.2019. However, when the
Trial Court by its order dated 26.2.2019
permitted the plaintiff-respondent to bring
on record some of the documents which she
had prayed for being brought on recor

2. From the perusal of the order
impugned, it appears that Paper Nos.164Ka to 166-Ga, which were sought to be
brought in as additional evidence were
refused but the other papers were admitted
in evidence.

3. Learned counsel for the petitioner
has assailed the order by stating that when
the evidence viz.-a-viz. the plaintiff had
been closed then without recalling the order
by which the plaintiff's evidence was
closed, the Trial Court could not have
admitted in evidence/further documents.
The additional documents which were
sought to be brought in as additional
evidence could not have been allowed to be
filed. Learned counsel for the petitioner
further submitted that when there was no
law to permit the adducing of evidence by
the plaintiff after the evidence of the
defendant-petitioner had commenced then
the additional evidence could not have been
allowed to be brought on record. Learned
counsel assailed the order by stating that
the Trial Court had not given any reason as
to why the additional evidence had been
brought on record. Learned counsel for the
petitioner submitted that bringing on record
documents by way of additional evidence
was a dilatory tactics which was being
adopted by the plaintiff. Learned counsel
for the petitioner relied upon Order VII
Rule 14 of the Code of Civil Procedure,
1908 (hereinafter referred to as the "CPC")
and submitted that at the time of the filing
of the suit, the documents, which were to
be relied upon and which were in the
possession of the plaintiff, should have
been entered in the list which had
accompanied
the
plaint
and
those
documents should have been produced in
the Court when the plaint was presented by
the plaintiff. He submitted that if the
documents were not in the possession of
the plaintiff, she should have stated that in
whose possession exactly the documents
10 All. Colonel Mukal Dev Vs. Smt. Deveshwari Devi
1083
were. Learned counsel for the petitioner
further submitted that the plaintiff's case in
paragraph nos.2 and 3 of the plaint was
specifically to the effect that initially Sri
Shiv Dayal had willed the property in
question to the husband of the plaintiff Sri
Surendra Dayal on 29.4.1974 and thereafter
the husband of the plaintiff namely
Surendra Dayal had willed the property to
the plaintiff on 19.5.2002. These facts
when had been denied in the written
statement then it was the bounden duty of
the plaintiff to have filed the original
documents under Order XIII Rule 1 CPC.
Learned
counsel
for
the
petitionerdefendant further submitted that under
Order XVIII Rule 4 CPC when the
recording of evidence was done and when
the plaintiff found that there were certain
lacuna in her evidence then she could not
have been permitted to file the additional
documents.
Learned
counsel
for
the
petitioner further submitted that earlier
under Order XVIII Rule 17-A CPC,
documents could have been submitted but
thereto there was a condition that the
documents
which
would
have
been
submitted after the conclusion of the
evidence
were
to
be
such
documents/evidence which were not within
the knowledge of the plaintiff or could not
be produced by the plaintiff at the time
when the plaintiff was leading his/her
evidence.

4. Since, learned counsel for the
petitioner states that, the provisions of
Order XVIII Rule 17-A CPC were being
misused by the litigants to prolong
proceedings, the said provision of Order
XVIII Rule 17-A CPC itself was deleted
from the Code. Learned counsel for the
petitioner, therefore, stated that the order
impugned cannot be sustained in the eyes
of law and may be set-aside.

5. Sri Avneesh Tripathi, learned
counsel
appearing
for
the
plaintiffrespondent, however, submitted that when
there was denial of certain existing facts by
the defendant in his cross-examination then
it was essential that the documents which
the plaintiff was bringing on record be
brought on record. This, learned counsel
for
the
plaintiff-respondent
submitted
would facilitate the Court in passing the
judgment in the case. Learned counsel for
the plaintiff-respondent submitted that
under Order XIII Rule 1(3) CPC any
document could be produced for the crossexamination of the witnesses or other
parties and, therefore, the document in
question
could
have
definitely
been
produced. He further submitted that even if
there was no provision in the CPC for the
production of additional documents then
the same could be allowed to be done by
the Court in its inherent powers under
section 151 CPC. Learned counsel for the
plaintiff-respondent to bolster his case
relied upon a decision of Delhi High Court
in Subhash Chander vs. Bhagwan Yadav
reported in 2010 (114) DRJ 306 decided
on 25.11.2009 and submitted that under
Order XIII Rule 1(3) CPC the document
could be produced. Learned counsel for the
plaintiff-respondent further relied upon a
decision of the Supreme Court in K.K.
Velusamy vs. N. Palanisamy reported in
(2011) 11 SCC 275 and submitted that
even if there was no power bestowed upon
the Court under the CPC to allow the
parties to produce any material or evidence,
the same could be done under section 151
CPC to facilitate the Court to adjudicate the
case.

6. Having heard learned counsel for
the parties, the Court is of the view that
definitely under the specific provisions of
CPC i.e. under Order VII Rule 14 and
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
under Order XIII Rule 1, the Court had no
power to allow the parties to adduce further
evidence after the relevant stages were
over. The relevant stages were : (i) when
the suit was filed; and (ii) before the issues
were settled. For proper appreciation of the
law, which is being dealt with, the
provisions of Order VII Rule 14 CPC and
Order XIII Rule 1 are being reproduced
here as under :-

"Order
VII
Rule
14.
Production of document on which
plaintiff sues or relies

.--(1) Where a plaintiff sues upon
a document or relies upon document in his
possession or power in support of his
claim, he shall enter such documents in a
list, and shall produce it in Court when the
plaint is presented by him and shall, at the
same time deliver the document and a copy
thereof, to be filed with the plaint.

(2) Where any such document is
not in the possession or power of the
plaintiff, he shall, wherever possible, state
in whose possession or power it is.

(3) A document which ought to
be produced in 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 is not produced or entered accordingly,
shall not, without the leave of the Court, be
received in evidence on his behalf at the
hearing of the suit.]

(4) Nothing in this rule shall
apply to document produced for the cross
examination of the plaintiffs witnesses, or,
handed over to a witness merely to refresh
his memory.

"

"Order XIII Rule 1. Original
documents to be produced at or before the
settlement of issues

.--(1) The parties or their pleader
shall produce on or before the settlement of
issues, all the documentary evidence in
original where the copies thereof have been
filed along with plaint or written statement.

(2) The Court shall receive the
documents so produced:

Provided
that
they
are
accompanied by an accurate list thereof
prepared in such form as the High Court
directs.

(3) Nothing in sub-rule (1) shall
apply to documents-

(a) produced for the crossexamination of the witnesses of the other
party; or

(b) handed over to a witness
merely to refresh his memory."

7. Definitely under Order XIII Rule
1(3) CPC, document could be produced for
the cross-examination of the witnesses but
this does not mean that documents could be
produced even after the cross-examination
had concluded. It was the bounden duty of
the Court to have, even under section 151
CPC, seen as to whether the documents
which were being sought to be produced,
were within the knowledge of the parties
who were trying to produce the document
or whether even after exercise of due
diligence, the documents could not be
produced by the party which was producing
the document at the relevant point of time.
The powers under section 151 CPC could
be exercised, as has been stated in the case
10 All. Colonel Mukal Dev Vs. Smt. Deveshwari Devi
1085
of K.K. Velusamy (supra), only under the
following circumstances :-

"(a)
Section
151
is
not
a
substantive provision which creates or
confers any power or jurisdiction on courts.
It merely recognizes the discretionary
power inherent in every court as a
necessary corollary for rendering justice in
accordance with law, to do what is 'right'
and undo what is 'wrong', that is, to do all
things necessary to secure the ends of
justice and prevent abuse of its process.

(b) As the provisions of the Code
are not exhaustive, Section 151 recognizes
and confirms that if the Code does not
expressly or impliedly cover any particular
procedural aspect, the inherent power can
be used to deal with such situation or
aspect, if the ends of justice warrant it. The
breadth of such power is co-extensive with
the need to exercise such power on the
facts and circumstances.

(c) A Court has no power to do
that which is prohibited by law or the Code,
by purported exercise of its inherent
powers. If the Code contains provisions
dealing with a particular topic or aspect,
and such provisions either expressly or
necessary implication exhaust the scope of
the power of the court or the jurisdiction
that may exercised in relation to that
matter, the inherent power cannot be
invoked in order to cut across the powers
conferred by the Code or a manner
inconsistent with such provisions. In other
words the court cannot make use of the
special provisions of Section 151 of the
Code, where the remedy or procedure is
provided in the Code.

(d) The inherent powers of the
court being complementary to the powers
specifically conferred, a court is free to
exercise them for the purposes mentioned
in Section 151 of the Code when the matter
is not covered by any specific provision in
the Code and the exercise of those powers
would not in any way be in conflict with
what has been expressly provided in the
Code or be against the intention of the
Legislature.

(e) While exercising the inherent
power, the court will be doubly cautious, as
there is no legislative guidance to deal with
the procedural situation and the exercise of
power depends upon the discretion and
wisdom of the court, and the facts and
circumstances of the case. The absence of
an express provision in the code and the
recognition and saving of the inherent
power of a court, should not however be
treated as a carte blanche to grant any
relief.

(f) The power under Section 151
will have to be used with circumspection
and care, only where it is absolutely
necessary, when there is no provision in the
Code governing the matter, when the bona
fides of the applicant cannot be doubted,
when such exercise is to meet the ends of
justice and to prevent abuse of process of
court."

8. In the instant case, the Court finds
that after the stages of Order VII Rule 14
and Order XIII Rule 1 CPC i.e. when the
suit was filed and before the issues were
settled, the plaintiff was required to file all
the relevant documents. However, the
Court finds that nowhere in the CPC is
there any prohibition for bringing any
document by way of additional evidence
subsequently and, therefore, if in the
interest of justice any document was to be
produced then the Court had to use its
power with circumspection and care and
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
when the bona fide of the applicant could
not be doubted and also when it was
absolutely essential to bring on record the
additional evidence to meet the ends of
justice. In the instant case the Court finds
that, definitely the plaintiff had not
exercised the right which she had, to file
the relevant evidence at the time of filing of
the suit and also before the settlement of
the issues. The Court, however, finds that
when the case of the plaintiff was
dependent upon the two wills dated
29.4.1974 and 19.5.2002 then definitely the
two wills ought to have been brought on
record either at the time of filing of the suit
or before the settlement of the issues.
Keeping in mind that injustice may not
occur, the Court under its powers under
section
151 C.P.C.
directs
that
the
documents which find place in the list of
documents at Serial Nos.4, 5 and 6, which
were filed on 22.2.2019, may be taken on
record as additional evidence.

9. Under such circumstances, the
impugned order by which the documents at
Serial Nos.4 to 6 were allowed to be taken
on record, is not being interfered with. Any
other document should not be allowed to be
taken as evidence. These documents
definitely, if proved or disproved, would
give a different turn to the case. When the
documents are taken on record, the parties
shall be allowed to lead evidence which
shall definitely be concluded within a
period of one month and thereafter the suit
itself would be decided within a period of
six months.

10. Since, the Court finds that the
documents which have been permitted to
be taken on record by this Court were
available to the plaintiff at the time when
the suit was filed and also at the time when
the issues were settled, the Court concludes
that the plaintiff for this carelessness and
laxness should be penalized and, therefore,
the documents which are sought to be taken
in as additional evidence which were there
in the list of documents at Serial Nos.4, 5
and 6, be admitted only if the plaintiff
deposits a cost of Rs.10,000/-.

11. The impugned order, accordingly,
stands modified.

12. The instant application under
Article 227 of the Constitution of India,
accordingly, stands party allowed.
----------
(2022) 10 ILRA 1086
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 12.09.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters under Art. 227 No. 4745 of 2019

Nagar Nigam Meerut ...Petitioner
Versus
Dr. Sharad Rohtagi & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pankaj Srivastava, Archana Srivastava

Counsel for the Respondents:
Sri Vinayak Mithal, Sri P.K. Jain (Se. Adv.)

A. Civil Law - Reference of dispute to
Arbitrator - Arbitration and Conciliation
Act, 1996 - Section 8 - Transfer of
Property Act, 1982 - Section 111(a); U.P.
Municipal Corporation Act, 1959 - Section
571 - An agreement or a clause in an
agreement can be construed as an arbitration
agreement, only if,

(i) it provides for or contemplates reference of
disputes or difference by either party to a
private forum (other than a Court or Tribunal) or
decision;