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Madhya Pradesh High Court · body

1955 DIGILAW 86 (MP)

Firm of Maniklal Jawaharlal v. Chotekhan

1955-09-21

MATHUR

body1955
ORDER : This is a revision application by the Firm of Maniklal Jawaharlal, through its proprietor Jawaharlal, defendant, against the order of the Second Subordinate Judge, Bhopal, admitting 12 documents at a late stage on the application of plaintiffs (non-applicants) Nos. 2 to 5, viz., Shrimati Ashraf Bi, Shamam, Shrimati Qamrulnisha and Shrimati Abba, after substantial evidence of the plaintiffs had been recorded. Chotekhan, plaintiff (non-applicant) Number 1 is the guardian of plaintiffs Nos. 3 to 5. The trial Court, however, awarded only Rs. 10/- as costs for the admission of these documents. 2. It has been strongly urged on behalf of the defendant that the real contesting plaintiff was Chote Khan and consequently the application moved by plaintiffs Nos. 2 to 5 was in fact the application on behalf of plaintiff No. 1 and the plaintiffs did not deserve any leniency on the ground that they were ladies or were minors; and that the documents sought to be introduced cannot be regarded to be documents whose genuineness cannot be doubted. It was further contended that as a result of the admission of the documents at a late stage the case would be reopened as the defendant would like to cross-examine the plaintiffs' witnesses with regard to these documents. Lastly, it was also mentioned that the costs awarded were very nominal. 3. The first contention has considerable force as from the plaint itself it appears that the main claimant is Chotekhan, plaintiff No. 1, though to avoid any technical objection the other members of the family, namely, plaintiffs Nos. 2 to 5 were also joined in the suit. In these circumstances an application moved on behalf of the plaintiffs Nos. 2 to 5 would be deemed to be an application by or on behalf of the plaintiff No. 1 and no leniency on the ground of sex or age was called for. However, on other grounds the order under revision cannot be said to be illegal. Plaintiffs desired to prove some of the documents to show that one of the pleas raised by the defendants, namely, that the plaintiffs were not in a position to meet the contract on account of lack of funds, is incorrect but other documents are to prove the quantum of damages recoverable by the plaintiffs or by the defendant. Plaintiffs desired to prove some of the documents to show that one of the pleas raised by the defendants, namely, that the plaintiffs were not in a position to meet the contract on account of lack of funds, is incorrect but other documents are to prove the quantum of damages recoverable by the plaintiffs or by the defendant. These documents appear to be relevant and not such as should be prohibited from coming on the record on the ground that they could not be of any assistance in the disposal of the case. During the trial the Courts of law generally take a lenient view and admit documents even though filed at a late stage on payment of costs unless the plaintiffs were grossly negligent or the documents appear to be of a suspicious nature. The plaintiff, of the present case have been negligent but not to the extent that they should be penalised by not admitting these documents. In any case, when the trial Court has exercised its discretion in their favour it would not be proper for this Court to interfere with the order on the ground that if it were the trial Court it would have taken a different view. 4. It was mentioned before me that the documents should be held to be of a suspicious nature in view of the fact that they were not produced before the lower Court at an earlier stage. I do not agree with this contention. Documents Nos. 4 to 12 are those, the originals of which are not and could not be in the custody of the plaintiffs. Some of them are copies of the documents of the defendant himself. Thus, these nine documents cannot be regarded to be not free from suspicion, that is to be forged. Documents Nos. 1 to 3 are copies of the 'Rokad Bahi' of the plaintiffs' shop. I understand that the plaintiffs pay Income-tax and had submitted the prescribed statements before the Income-tax Authority. The originals of 'Rokad Bahi' do not bear the signatures or initials of the Income-tax Authority but on this ground the original 'Rokad Bahi' cannot be discarded. 5. The 12 documents thus appear to be prima facie genuine but it will always be open to the defendant to satisfy the Court that these documents are forged or cannot be acted upon. 5. The 12 documents thus appear to be prima facie genuine but it will always be open to the defendant to satisfy the Court that these documents are forged or cannot be acted upon. At the time of admission the Courts of Law have only to consider if prima facie the documents appear to be genuine or not. If they appear to be forged, they cannot be admitted in evidence; otherwise during the hearing it will be open to the parties to prove by cogent evidence the genuineness or otherwise of the documents. 6. However, the costs awarded by the trial Court are very nominal, keeping in mind that most of the plaintiffs' evidence has already been recorded and as a result of admission of the documents it will become necessary for the defendant to make a request for the recall of certain witnesses for the purposes of cross-examination with reference to these documents. These witnesses will thus have to be recalled and the defendant will have to pay additional fee to his Counsel to meet this extra labour for no fault of his. While awarding the costs the trial Court did not take these factors into consideration. The revisional Court is generally reluctant to modify the order of cost but does interfere if the order was passed arbitrarily. In the present case, the order of costs is arbitrary and consequently can be modified by me. I would, therefore, fix the amount of costs to compensate the defendant for the extra legal fee and would at the same tune- direct that the cost of the witnesses to be recalled for the purposes of cross-examination with reference to the 12 documents would be borne by the plaintiffs irrespective of the decision of the suit and would not be taxed in the decree. 7. The revision application is hereby dismissed but the amount of costs is raised to Rs. 35/- and at the same time it is ordered that the plaintiffs would themselves bear the costs of such of their witnesses as may have to be recalled for the purposes of cross-examination with reference to the 12 documents and the costs of these witnesses shall not be taxed in the decree. Order accordingly.