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2007 DIGILAW 889 (MAD)

S. Rukmani v. R. B. Vasudev

2007-03-09

S.RAJESWARAN

body2007
Judgment :- The defendants are the Revision Petitioners before this Court, challenging the order of the trial Court dated 18.08.2006 made in I.A.No.592 of 2006 in O.S.No.187 of 2000. 2. I.A.No.592 of 2006 was filed by the plaintiff permitting them to file additional documents and the trial Court allowed the application thereby permitting the plaintiffs to file the documents subject to proof and relevancy. Aggrieved by the said order dated 18.08.2006 the above Revision Petition has been filed under Article 227 of the Constitution of India. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondent. I have also gone through the documents and the Judgments referred to by them in support of their submissions. 4. Thelearned counsel for the petitioner vehemently contended that in view of the amendment to Order 13 and Order 7, additional documents should not have been received by the trial Court after the settlement of issues. He relied on the following decisions in support of his contentions. (1) AIR 1995 Punjab and Haryana 120 (Surjan Singh, Petitioner V. Paras Ram deceased by L.R.s)and others. Respondents), (2) AIR 2001 Karnataka 495 (N.M. Madhu kumar, Petitioner V.Raju and others. Respondents). 5. Per Contra, the learned counsel for the respondents submit that even after the Amendment Act 46 of 1999 and Act 42 of 2002, the code permits the parties to file additional documents after the settlement of issues. He relied on the following decisions in support of his submissions. (1) 2002 AIHC 2866(Delhi)(Kirpal Chand and others, Petitioners v. Skipper Construction Co. Pvt. Ltd. And others. Respondents) (2) (2005)4 MLJ 643 (K. Achuthan Chetty V. K.K.Narayanan (died) and others) (3) 2007(1) Law Weekly 560 (K. Kasturi and others Vs. C. Mohan & Others) 6. I have considered the rival submissions with regard to facts and citations. 7. In AIR 1995 Panjab and Haryana 120 (cited supra) held as follows: " Para 6. Reference may also be made to another decision of this Court in Butta Singh V. Gurmeet Singh, (1994-2) 107 Pun LR 276. C. Mohan & Others) 6. I have considered the rival submissions with regard to facts and citations. 7. In AIR 1995 Panjab and Haryana 120 (cited supra) held as follows: " Para 6. Reference may also be made to another decision of this Court in Butta Singh V. Gurmeet Singh, (1994-2) 107 Pun LR 276. While interpreting the scope of Order 18, Rule 17A of the Code of Civil Procedure, it was observed as under:- "The factum of Jaswant Kaur being of unsound mind was very much in the knowledge of the defendant and additional evidence can only be permitted which could not be produced earlier when the party had an occasion to produce the same, if the party seeking such permission satisfied the Court that evidence could not be produced earlier despite due diligence and that the evidence sought to be produced was not in the knowledge of such party when he had an opportunity to produce such evidence. Nothing of the type has either been alleged or shown to the satisfaction of the Court as already noticed. All the facts were in the knowledge of the defendant-petitioner and there was nothing to prevent him to produce the evidence on an earlier date. Para 7. I fully endorse the view expressed as above that unless and until the party satisfies the Court that after due diligence had been exercised, the document could not be produced earlier, he cannot be permitted to lead such documentary evidence subsequently which was already in existence and was known to the party concerned." 8. Inthe above decision, the plaintiff evidence was closed in October 1987 and application was filed by the plaintiff under Order 18 Rule 17 A for producing additional evidence was filed on 29.01.1991 and only in that context, the High Court held that the plaintiff should have been made such an application promptly after the evidence was closed if at all it was a case of inadvertance or negligence on the part of the counsel. 9. Thefacts are different in the present case and therefore the above decision is not applicable. 10. In A.I.R.2001 Karnataka 495 (cited supra) the Karnataka High Court upheld an order of the trial Court in rejecting an application filed under Order 13 Rule 1 C.P.C by holding that the documents are irrelevant. 11. 9. Thefacts are different in the present case and therefore the above decision is not applicable. 10. In A.I.R.2001 Karnataka 495 (cited supra) the Karnataka High Court upheld an order of the trial Court in rejecting an application filed under Order 13 Rule 1 C.P.C by holding that the documents are irrelevant. 11. The facts in the above decision are also early distinguishable and this decision is also not helpful to the Revision Petitioner. 12. In 2002 AIHC 2866 (Delhi)(cited supra) the Delhi High Court has held as follows: " Para 6. No doubt the application does not show reasons explaining the plaintiffs omission to file the records in question with the suit or at any stage prior to settlement of issues, since the same appear to be relevant for just and fair decision on the matter in controversy and no prejudice is likely to be caused to the defendants on account of permission to bring the same on record being granted, there appears no reason to decline the permission particularly when the plaintiffs are still in the process of examining their witnesses. In the circumstances, the certified copies of the records of the three writ petitions, filed with the application, are admitted on record, subject to payment of costs of Rs.3,000/-. 13. In the above decision, the Delhi High Court after observing that the plaintiffs are still in the process of examining their witnesses, held that no prejudice is likely to be caused to the defendants if the documents are allowed to be filed. 14. In 2005(4) M.L.J. 643 (cited supra) this Court held that the construction of the document and the intention of the parties could be determined only when the parties adduce evidence. 15. In 2007-1 Law Weekly 560 (cited supra) this Court held as follows: "Para 8. Before the Code of Civil Procedure (Amendment) Act 46 of 1999 and Act 22 of 2002, Order VII Rule 14 of the Code of Civil Procedure dealt with two types of documents, namely, (1) the document in possession or power of the plaintiff, upon which he sues and (2) any other document on which he relies, whether it is in his possession or power or not. In so far as the document on which the plaintiff sues is concerned, it was required to be filed along with the plaint. In so far as the document on which the plaintiff sues is concerned, it was required to be filed along with the plaint. The document on which he relies could be filed later, provided a list is furnished under Order VII Rule 14(2). Similarly, Order XIII Rule 1(1) required the parties to produce all documentary evidence of every description in their possession or power, at or before the settlement of issues, if they have not already been filed into Court. In view of Order XIII Rule 2(1) of the Code, the production of the documentary evidence in the possession or power of any party which should have been, but has not been produced, at or before the settlement of issues cannot be produced at any subsequent stage of the proceedings, unless good cause is shown to the satisfaction of the Court for the non-production thereof. But the Amendment Acts of 1999 and 2002 brought forth certain changes, which could be well appreciated by a comparative analysis of these provisions, before and after the Amendments. Para 9. The provisions of Order VII Rule 14(1) and (2) before amendment read as follows:- "14. Production of document on which plaintiff sues.--(1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. (2) List of other documents.-- Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint. The Amendment Act 46 of 1999, replaced Order VII Rule 14, with the following:- "14. Production of document on which plaintiff sues.--(1) Where a plaintiff sues upon a document or relies upon a 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. (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) Where any such document or a copy thereof is not filed with the plaint under this rule, it shall not be allowed to be received in evidence on behalf of the plaintiff at the hearing of the suit." Para 10.Similarly, Order XIII Rule 1 and 2(1) before amendment read as follows:- "ORDER XIII PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS 1. Documentary evidence to be produced )at or before the settlement of issues).-- (1) The parties or their pleaders shall produce at or before the settlement of issued, all the documentary evidence of every description in their possession or power, on which they intend in Court, and all documents which the Court has ordered to be produced. (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. 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. ORDER XIII Rule 1 and 2 were substituted by Order XIII Rule 1(1), (2) and (3) by the Amendment Act as follows:- "ORDER XIII PRODUCTION, IMPOINDING AND RE TURN OF DOCUMENTS 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) TheCourt 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." Para 11. (2) TheCourt 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." Para 11. On a comparison of the provisions of Order VII Rule 14 of the Code of Civil Procedure before amendment and after Amendment of 1999, it is seen that the primary requisite for a plaintiff to produce any document in his possession or power at the time of presentation of the plaint, has remained unchanged. The rule uses the words "shall produce it in Court" both before and after the amendment. But sub Rule (2) of Rule 14 of Order VII of the Code of Civil Procedure has undergone a change, in that the plaintiff was merely required to furnish a list of " any other documents relied upon by him, whether in his possession or power or not", before the amendment. But after the Amendment of 1999, Sub Rule (2) of Rule 14 of Order VII of the Code of Civil Procedure requires the plaintiff to state in whose possession or power a particular document is, if it is not in his own possession or power. Para 12. Coming to Order XIII, before the Amendment, the parties were entitled to produce all documentary evidence of every description, at or before the settlement of issues, if they have not already filed them into Court. But after the amendment, Order XII Rule 1 (1) allows only those documentary evidence in original to be produced at or before the settlement of issues, "where copies thereof have been filed with the plaint or written statement". Thus, in effect, Order XIII Rule 1 prior to amendment permitted all documents which were not already filed into Court, to be filed at or before the settlement of issues and Order XIII Rule 2 allowed the production of documents even after the settlement of issues. To be precise, Order XIII Rule 2 before Amendment permitted production of documents, "at any subsequent stage of the proceedings", if a good cause is shown to the satisfaction of the Court. But after the amendment, only the originals of such of those documents whose copies have already been filed along with the plaint or written statement, were entitled to be produced at or before the settlement of issues. But after the amendment, only the originals of such of those documents whose copies have already been filed along with the plaint or written statement, were entitled to be produced at or before the settlement of issues. In particular, Order XIII Rule 2(1) prior to amendment, which permitted the parties to file all documents "at any subsequent stage of the proceedings stood deleted by the amendment. Therefore, a conjoint reading of Order VII Rule 14 and Order XIII Rule 1 after the amendment gives an impression as though the documents which were not filed along with the plaint or written statement, can never be filed subsequently. Para 13. But it is not so. The Amendment Act 22 of 2002 has introduced a new Sub Rule (3) to Rule 14 of Order VII, in the place of the Sub Rule (3) substituted by Amendment Act 49 of 1999. The new Sub Rule (3) of Rule 14 of Order VII, after the Amendment of 2002 reads as follows:- "Substituted by Act 22 of 2002 w.e.f.1.7.2002-(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." Thus the deletion of the provision, enabling to production of documents "at any subsequent stage of the proceedings" under Order XIII Rule 2 as it stood before amendment, has been compensated by the introduction of Sub Rule (3) under Rule 14 of Order VII under Amendment Act 0f 2002. Therefore, the right of a party to file a document at the time of hearing of the suit, if he has not already filed such document along with the plaint, is retained by the Amendment of 2002. All that is required under such circumstances, is that the plaintiff should take "the leave of the Court". Even the words "good cause" that appeared under Order XIII Rule 2(1) before the amendment are absent in the newly introduced Sub Rule 3 of Rule 14 of Order VII of the Code of Civil Procedure. All that is required under such circumstances, is that the plaintiff should take "the leave of the Court". Even the words "good cause" that appeared under Order XIII Rule 2(1) before the amendment are absent in the newly introduced Sub Rule 3 of Rule 14 of Order VII of the Code of Civil Procedure. As a matter of fact, even in the judgement cited by the learned counsel appearing for the petitioners in Madanlal Vs.Shyamlal (2002) 1 SCC 535 ), the Apex Court observed that the power under Order XIII Rule 2 of the Code of Civil Procedure (before amendment) should be exercised liberally and that "good cause" requires lesser decree of proof than that of "sufficient cause". Therefore, in view of the provisions contained in Order VII Rule 14(3) of the Code of Civil Procedure, as amended by Act 22 of 2002, the respondents were entitled to file the documents in question, with the leave of the Court, which is what they have done in this case. The power of the Court to grant leave for a plaintiff to file additional documents under Order VII Rule 14(3) is not even circumscribed by words such as "good cause" that were found in Order XIII Rule 2 before Amendment." 16. This decision is an exact answer to the points raised in the above Civil Revision Petition. This Court has clearly held in the above decision that in view of the provisions contained in Order 7 Rule 14(3) of C.P.C. As amended by Act 22 of 2002, the plaintiffs are entitled to file additional documents with the leave of the Court. 17. I am in respectful agreement with the above decision of this Court and I have no hesitation to hold that the Civil Revision Petition has no merits and the plaintiffs (respondents herein) are entitled to file the additional documents. I find no infirmity or illegality in the order of the trial Court dated 18.08.2006 made in I.A.No.592 of 2006 warranting interference under Article 227 of the Constitution of India. 18. Inthe result, this Civil Revision Petition is dismissed. No Costs. Consequently, connected C.M.P. is also dismissed.