Economic Transport Organisation, Hyderabad v. New India Assurance Co. , Ltd. , Anantapur District
2006-09-15
C.Y.SOMAYAJULU
body2006
DigiLaw.ai
ORDER :-Respondents 1 and 2 filed a suit against the revision petitioner for recovery of money. During the course of a evidence, respondents filed a petition purportedly under Order 7 Rule 14(3) read c with Section 151 C.P.C. seeking leave of the Court to receive a true copy of the n letter of subrogation executed by the 2nd plaintiff in favour of the 1st plaintiff dated a 8-8-1997. Rejecting the objection of the revision petitioner, the trial Court allowed b that petition by the order under revision it Hence this revision. 2. The contention of the learned Counsel for the revision petitioner is that the trial Court without keeping in view the fact that an insurer cannot without obtaining assignment from the insured file a suit against 3rd party for recovery of re the money, erroneously allowed the petition, when the existence of the document sought to be received was not even mentioned during the course of cross-examination of the witnesses of the revision petitioner. It is his contention that respondents in order to fill up the lacuna in their case created a document of subrogation and want to introduce it and are falsely claiming that they had earlier filed a petition to receive the original of the document sought to be filed into the Court and as, it is not traced from the Court record, they are filing the petition to receive a copy of the document and contended that the trial Court even without making an attempt to find out if such a petition was filed into the Court and if that petition is not traced, was in error in allowing the petition. It is his contention that in the matter of admitting secondary evidence some guidelines are laid down in Babulal Shiva Shankar and another v. Praveen Kumar Agarwal and another, 2005 (5) ALD 342 = 2005 (5) AL T 410, where it is held that granting of permission of file Xerox copy does not relieve the party producing it from the obligation to prove the document in other respects.
He also relied on P. Pandit Rao (died per L.R) and others v. K. Damodar and another, 2005 (5) ALD 646 = 2005 (6) ALT 140, where it is held that a party cannot be permitted to present an altogether new version merely because his side is reopened and in cases where a new version is permitted, an opportunity has to be afforded to the other side to lead evidence with regard to the new version introduced by the other party after reopening of its evidence. It is also his contention that the document sought to be filed into the Court is not in the proper form and is different from the form of subrogation and special power of attorney, usually used by the insurance companies. It is also his contention that the special power of attorney being relied on by the petitioner has no relation to the facts of the case, because it pertains to claims for money from railway administration or authorities payable to the 2nd defendant under the aforementioned invoices or railway receipts and so that special power of attorney is irrelevant for the purpose of deciding the dispute in the case. The contention of the learned Counsel for the 1st respondent is that since the petition is only to receive a document, all the contentions raised by the Counsel for respondents are alien to the point to be decided in the petition. It is his contention that question relating to receipt of secondary evidence was considered in Chandabolu Bhaskara Rao v. Betha Saidi Reddy, 2006 (4) ALD 572, and since all the contentions raised by the other side have to be gone into at the time of final disposal of the case but not at this stage, in view of ratio in Muslim Education Society, Karimnagar v. Awaz Bin Musallam, 1993 (3) ALT 7 (NRC), since permission can be obtained at any stage, there are no grounds to interfere with the order under revision. 3.
3. Rule 14 of Order 7 C.P.C., as it stands now was introduced by Section 17 of the ere Amendment Act, 1999 amending certain provisions in Order 7 C.P.C. Section 32 of ere Amendment Act 1999, lays down the provisions of Order 7 CPC as amended or, as the case may be, substituted or amended by Section 17 of that Act shall not apply to any proceedings pending before the commencement of Section 17. CPC Amendment Act 2002, through Section 8 thereof, made further amendments to Order 7 CPC. Both CPC Amendment Act, 1999 and 2002 came into force on 1-7-2002. Though as per CPC Amendment Act 2002 Rule 14(3) of Order 7 CPC can be said to have come into force on 1-7-2002, as it relates to amendment proposed in Section 17 of CPC Amendment Act 1999, by virtue of Section 32 of CPC Amendment Act, 1999, the said amended to Order 7 Rule 14(3) CPC does not apply to the proceedings pending before 1-7-2002. Since the suit is filed prior to 2002, any petition to receive documents either by the plaintiff or defendant would be governed by Order 13 Rule 2 ere though it stood repealed by virtue of CPC Amendment Act of 1999. As per Order 13 Rule 1 CPC, as it stood prior to 1999 and 2002 amendments for ere, the Court after settlement of issues has to fix a date for filing of the documents, which are not filed along with pleadings. Rule 2 of Order 13, read: 2. Effect of non-production of documents:-(1) No documentary evidence in the possession or power of any party which should have been, but has not been, produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing. (2) Nothing in sub-rule (1) shall apply to documents- (a) Produced for the cross-examination of the witnesses of the other party, or (b) Handed over to a witness merely to refresh his memory. 4.
(2) Nothing in sub-rule (1) shall apply to documents- (a) Produced for the cross-examination of the witnesses of the other party, or (b) Handed over to a witness merely to refresh his memory. 4. So, for producing any document subsequent to date fixed by the Court for filing document after framing of the issues, the party who files a petition to receive them has to give cogent reasons for his non-production of those documents within the time fixed. If the Court is satisfied with the reasons given by the party, it would receive the documents, though they are produced at a belated stage. Even as per Rule 14(3) of Order 7 also the Court can grant leave to receive documents, at any stage of hearing of the suit, if proper explanation is given for not filing those documents along with the plaint. Question whether the document intended to be produced is receivable in evidence or not can be decided only at the time when it is sought to be introduced in evidence, but not at the time when it is filed into Court, because had the document been filed into Court within the time granted by the Court, question of the other side opposing for its receipt into Court does not arise. What is the evidentiary value of the document and whether it supports the case of a party and whether it can be admitted in evidence and whether it is duly stamped or not, are all questions that have to be decided when the document is sought to be introduced in evidence, but not at the stage of considering application either under Rule 2 of Order 13 or Rule 14(3) of Order 7 CPC. The Court is only required to consider whether the party seeking leave to file the document, at a later stage, has given satisfactory explanation for not filing the said documents within the time. If the Court is satisfied with the reasons given by the party for such delay, it can receive the documents. 5. Question relating to the entitlement of the first respondent to make a claim for recovery of the amount from the revision petitioner is irrelevant for disposal of this petition because the only question to be decided is whether the delay in filing the document is properly explained or not. 6.
5. Question relating to the entitlement of the first respondent to make a claim for recovery of the amount from the revision petitioner is irrelevant for disposal of this petition because the only question to be decided is whether the delay in filing the document is properly explained or not. 6. The observation in Panditraos case (supra), relied on by the learned Counsel for the revision petitioner are made while disposing of an appeal. The ratio in that case is that if in pursuance of the permission to reopen evidence is given to a party he introduced a new case the other side should be given an opportunity to rebut that evidence. The question in this case is not whether the revision petitioner is entitled to adduce evidence in rebuttal to the evidence to be adduced by the respondents, because respondents admittedly did not close their case. Revision petitioner, who is the defendant in the suit, has a right to adduce evidence in rebuttal of the evidence adduced by the respondent. 7. In Babulal Shiva Shankars case (supra), it is held that mere grant of permission to file Xerox copy does not relieve the party from his obligation to prove the document in other aspects. Whether the document sought to be introduced by the respondent is genuine or not and if it has any effect on the claim made by the respondents against the revision petitioner are questions to be decided after evidence is adduced but not at this stage. Since respondents are seeking leave to produce a true copy of the letter of subrogation executed by the 2nd plaintiff in favour of 1st plaintiff on 8-8-1997, and since they are not filing any special power of attorney, the contention relating to the Special Power of Attorney raised by the learned Counsel for the revision petitioner need not be adverted to by me. 8. The suit is filed by the consignor and his insurer against the common carrier seeking damages for the damages caused to the consigned goods. So it cannot be said that the suit by the insurer only against the carrier. The indemnifier, no doubt, cannot sue the third party in his own name unless there is an assignment.
8. The suit is filed by the consignor and his insurer against the common carrier seeking damages for the damages caused to the consigned goods. So it cannot be said that the suit by the insurer only against the carrier. The indemnifier, no doubt, cannot sue the third party in his own name unless there is an assignment. Question whether a suit filed by the indemnifier and indemnified against the third party that caused the risk is maintainable or not has to be decided by the Court at the time of disposal of the suit but not at this stage. 9. The averment in Para 2 of the affidavit is that on 2-12-2005 the letter of subrogation was filed into the Court along with a petition to receive the same, with two other petitions. In the order under revision the trial Court observed that the question whether the letter of subrogation is misplaced in the Court or not would be decided separately. So it is clear that the Court did not give any finding on the respondents filing the original with Court. Since the document sought to be received is a copy but not the original, question whether loss of the original document is properly explained or not has to be considered at the stage when it is sought to be introduced in evidence but not at this stage i.e., at the time of seeking leave to receive the document. 10. Since the trial Court in exercise of its judicial discretion felt that the delay is properly explained and received the documents in the Court. I find no grounds to interfere with the said order and hence the revision is dismissed with costs.