1. This appeal has been preferred by the above named defendant appellants against the order dated 16th November, 2004 passed by the learned Presiding Officer, D.R.T., Jabalpur in case No. T.A. 1023 of 1998 whereby the prayer of the respondent Bank for taking some documents on records has been allowed.
2. There is chequered history of the case, the respondent Bank had filed the above mentioned case for recovery of non-paid loan amount from the appellants. The appellants had taken the plea that they have never authorised the borrowers for mortgaging their property and as such the Bank cannot proceed with the mortgaged property as security.
During the pendency of the case at the instance of the defendants including the appellants some of the Bank officials were cross-examined and then the case was closed and was fixed for judgment on 17th October, 2002 after hearing final argument. Then on 9th October, 2002 the respondent Bank had filed the petition for taking some documents on record regarding the authority of the mortgage but the then Presiding Officer vide order dated 10th October, 2002 disallowed the petition as being not maintainable as the case was closed and fixed for judgment and hence the said petition was asked to be consigned to the record room. Before judgment could be delivered in the case, the then Presiding Officer laid down his office and as such the case could not be finalized. Then it appears that the case was again reopened and was fixed for final argument. Then on 16th March, 2004 the respondent Bank filed the petition for taking on record their previous application dated 9th October, 2002 but the said application was missing from records. However, after taking explanation from the Court Master, the learned Presiding Officer placed the matter for hearing on the petition. The appellants side made objection on the plea that when the earlier petition dated 9th October, 2002 was rejected then the same cannot be reconsidered or reviewed when no appeal had been preferred against the previous rejection order passed on 10th October, 2002.
After hearing the learned Counsel for both the parties learned Presiding Officer by detailed order allowed the prayer of the respondent Bank and hence the present appeal against the impugned order.
3. Mr. Satish Agarwal, Advocate appearing for and on behalf of the appellants submitted that the learned Tribunal had not considered the plea of res judicata as taken by the appellant in their objection and without proper reasons allowed the prayer of the respondent Bank which was once rejected by his predecessor which had a binding effect on him.
4. Mr. Srivastava, Advocate appearing for and on behalf of the respondent Bank submitted that any document, if not filed at the proper stage, can be accepted by the Court on a later stage, if those documents are found to be vital for the purpose of adjudicating the dispute between the parties. His further submission is that the ingredients of res judicata are not attracted in the present case as previous rejection was due to non-maintainability, when the case was fixed for judgment but when the case has again been reopened then the situation became changed and the application became maintainable and the previous rejection was never on merit.
5. In the light of the submissions made by the learned Counsel for both the parties, I have perused the materials on record. For security of the loan, the mortgage of the property has a vital role and according to the Bank the property was being rightly mortgaged but the appellants, contention is that they had never given any authority to the borrowers to mortgage their property. Some documents regarding creation of mortgage were attempted to be introduced by the respondent-Bank to avert the contention of the appellants but such petition of filing documents at the later stage was filed when the case was closed and was fixed for judgment and hence at that stage the petition was rejected as not maintainable. The said petition for submission of some documents at later stage was never considered on merit as is very much clear from the order dated 10th October, 2002.
The petition was rejected as not being maintainable as the case was closed. But the situation have later on changed. The judgment could not be delivered and the matter was reopened and then the respondent revived their earlier prayer and the same had been allowed on merit by the impugned order. The principle of res judicata is enumerated under Section 11 of the CPC. An issue which had been directly and substantially in issue in a previous suit and proceedings between the same parties, if decided finally after hearing the parties then same issue cannot be raised again as the bar of res judicata comes in. Here in the present case, the principle of res judicata is not applicable.
There was no former suit nor the issue being decided finally rather if construed legally the principles of estoppel might be attracted if found legally applicable in the present case. The previous application for taking documents on record at the later stage had been rejected at that stage when the case was already closed and the matter was never considered on merit but the situation and position of the case have been changed altogether when the case was reopened and the case was fixed for argument. In that way the maintainability matter on which rejection was made earlier had lost its force and as such in my considered view neither the principles of res judicata nor the plea of estoppel comes into play. The Bank has relied on. the mortgaged property as security for the loan but the same had been denied from the side of the appellant for want of authority given by them to the defendant No. 1. If some documents are there in the custody of the Bank then the same can be or should be considered for the proper adjudication on the principle of natural justice, which is the backbone of the object of the statute of D.R.T., Act. Some observations made in the impugned order regarding not taking of the plea in the written statements, etc. should not be considered and decided at this stage as the same would go to root of the case. It has been held by the various High Courts that the documents can be accepted at a later stage also during the pendency of the proceedings, if those documents are considered to be vital for the purpose of coming to the just decision in the litigation and for ends of justice. As the case stands between the parties, I find that the learned Tribunal has rightly accepted those documents to be taken on record as vital documents for the purpose of proper adjudication in the lis. Various judgments have been placed from the learned Counsel for both the parties on the principle of acceptance of vital documents in a pending proceedings and also towards the principle of res judicata and estoppel. I do not want to mention all those rulings in this judgment for the sake of brevity but the principles enunciated in those judgments have been taken into consideration for the purpose of adjudication of this appeal. I find that the learned Tribunal has not committed any error in accepting those documents filed by the respondent Bank at the later stage. Some observations made in the impugned order should not be taken into consideration for the purpose of final adjudication of the dispute between the parties.
6. At the last stage of argument Mr. Agarwal appearing for the appellant has submitted that if this appeal fails then the appellant should be given a chance to further cross-examine the Bank officials regarding the documents furnished at the later stage. I find it a fair plea from such of the appellant when new documents have been filed by the Bank and accepted by the Tribunal then a right has been accrued to the appellant to clarify the position of those documents filed at the later stage by cross-examining the required and essential Bank officials.
7. In the result the appeal is dismissed and the stay order passed earlier is hereby withdrawn. Learned Presiding Officer, D.R.T., Jabalpur shall allow if desired so by the appellants to cross-examine the Bank officials further, but should be restricted/ confined on the further documents filed at the later stage alone. The appeal is thus dismissed with the observation as mentioned above.