Should I file Appeal from Order or Writ Petition?

Question

I am a Plaintiff in a Suit. The Defdts. produced some fabricated documents which I was not even aware of until referred to in their WS. The issues are framed. I made an Application to frame Additional Issue as to whether said documents are genuine and valid. Defdts. opposed my Appln. and the Court rejected the Application. Now I have to go to the Bombay HC. Should I file A.O. or will it be faster to move W.P. Secondly, is WP maintainable against such an Order? Thanks.

Thanks to Raj, Vijay & Srichand. My mother (now decd.) had filed a criminal case against these defdts. for forgery, cheating etc and Process was issued in 2002, the case is pending at the Esplanade court at framing of charges stage. The Suit which was filed in 2000 is for declaration of shareholding, directorship etc. The fake docs are primary evidence being share certificates, transfer forms etc - which are prima facie fake eg. Revenue stamp on Share cert was not issued until 10 years later as per Govt Security Press report. The issue which I want to be framed is very material as a finding on it would instantly decide the Suit. The trial judge ignored SC & HC judgments on O.14 R1, R5. Hence I feel I have a very strong case. In Bombay HC, there is provision for Appeal from Order against interlocutory orders of the Civil court. Usually when CHS or NM are dismissed parties go for AO. Mine was just a simple Appln. Is this better than Revision as scope of Revision is limited Tks

Answer 1

I partially agree with G N Raj. The matter in the High Court can go for revision under section 115 C.P.C. Read with Article 227 of the Constitution & not in appeal. The civil writ in this case is not maintainable. But as rightly told by G N Raj the high courts rarely reverse the interlocutory orders of the lower courts in revision, unless such order is extreme case of misuse of their jurisdiction. Here the civil court should have allowed such amendment in the framing of the issues or adding such an issue when you had moved this application under order XIV, Rule 5 of CPC, but why this was not allowed I can't say unless I see that courts order. May be the consideration in the mind of this civil judge was that since the document attached with the W.S. by the defendant has to be exhibited at the time of his evidence & at that time you can cross examine him for the genuineness of this & seek proof of its being original & not forged. Second point here is what type of document is this? Is it the primary or secondary in nature? In case it is secondary in nature, its genuineness can be ascertained by calling the actual records of which it is the certified copy & check its genuineness before exhibiting it. In case it is primary in nature then its author can be summoned to verify its genuineness at the time of defendant’s evidence. As far moving a criminal complaint against the defendant for producing forged document in the court is concerned, that comes later when its being forged document is proved in this civil case, unless you prove it being forged document here the question of moving a criminal complaint doesn't arise. Now you will say that was your purpose & hence you wanted this to be one of the issue which was denied to you. Right, but still you get chance to prove the defendant guilty for producing forged document at the time of his evidence & your cross examining him & no one can deny you this right. At that time itself if you are able to show the court that this man has produced a forged document not only that document will denied being exhibited for the records of this case but he can be tried for producing forged document in the court proceedings. Scoop of Appeal is always more then Revision & if the Mumbai High Court Rules allow such appeal against any interlocutory order on any application as in your case then go ahead with it but better check the High Court Rules first. Rest the genuineness of the Share Certificates in question can always be checked & confirmed before they are allowed as an exihibit of the defendent.

Answer 2

If you aggrieve by that order; you can file a revision under Article 227 of Constitution of India before the Hon’ble Bombay High Court. No appeal is provided. You can not file a writ also. The revision serve limited purpose and High Court normally won’t interfere with such interlocutory orders.

In fact the issues have to be framed in accordance with order 14 of CPC. By virtue of order 14 rules 3 and 4 of CPC, the trial court is supposed to consider the objections in regarding to the fabricated documents and thereby ought to have framed necessary issues.

Please, be comfortable, that it is not an end. Your counsel can question at the time of marking those forged documents. Also mere marking of a document does not dispense with its proof.

You can file a rejoinder by incorporating your objections by obtaining leave from the court.

If you feel that those documents are forged and fabricated then nothing is precluded you from initiating criminal proceedings against the defendants for forgery and cheating in accordance with law lay down by the Hon’ble Supreme court reported at 1998(1) Crimes 142 (SC).

I have not extracted the verbatim of the provisions that may not serve any purpose for you.

You can get proper advice from your counsel who is the right person having idea of entire circumstances.
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Answer 3

Civil Courts normally frame issues based on pleadings of the parties. Since you were not aware about the documents referred to and relied upon by the Defendants until filing of Written Statement, you did not plead about the same.

If you are sure about proving those documents to be false and fabricated, the best recourse would be to lead your Evidence by Affidavit as per new CPC. In the said Evidence Affidavit, apart from putting forth your case, make submissions on the written statement as also false & fabricated documents relied upon and produced by the Defendants. Thereafter, you can apply for alteration or modification of issues or for framing additional issues.

You may be aware that issues can be altered, modified as also additional issues can be framed at any stage of suit.

Answer 4

Perhaps you could file a bill of particulars. If nothing else it could slow down the preceedings untill you get a better idea. Good luck

Answer 5

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