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2009 DIGILAW 153 (DEL)

DARPAN KWATRA v. RAMESH CHANANA

2009-02-06

MANMOHAN

body2009
MANMOHAN, J (Oral) 1. Present civil revision petition has been filed against the order dated 4th October, 2008 whereby the respondent/plaintiffs application under Order 6 Rule 17 and Order 1 Rule 10 has been allowed and the petitioner/defendants application under Order 7 Rules 14 and 17 has been dismissed. 2. Learned counsel for the petitioner contends that the application under Order 6 Rule 17 and Order 1 Rule 10 has been allowed without hearing him. He has also drawn my attention to the order dated 18th May, 2007 whereby the matter was adjourned to facilitate the petitioner to file documents in support of his plea that Sh. Ramesh Kwatra was the proprietor of M/s. Bharat Plastic Industries. He further states that though the trial court looked at form ST - 35 dated 22nd March, 2006, but it did not look into other correspondence as well as other ST-35s which clearly shows that Sh. Ramesh Kwatra was the proprietor of the firm to the respondents knowledge for a long time. 3. On a perusal of the order dated 4th October, 2008 passed by the Additional and Sessions judge (in short ADJ), I find that the same is rather a detailed one and it takes into account even the arguments being advanced today before me that the respondent-plaintiff was all throughout aware that Sh. Ramesh Kwatra is a proprietor of M/s. Bharat Plastic industries. Consequently, in my opinion, the impugned order has been passed after hearing the petitioner. 4. In fact, the ADJ while allowing the application under Order 6 Rule 17 and Order 1 Rule 10 filed by the respondent-plaintiff has relied upon ST-35 form dated 22nd March, 2006 which is only about 5-6 months prior to the institution of the suit, to reach the conclusion that the plaintiff could have been under a bonafide impression that there had been a recent change in the constitution of the firm and Sh. Darpan Kwatra son of Sh. Ramesh Kwatra was the new proprietor. Consequently, in my view, the ADJ has given cogent reasons for allowing respondent/plaintiffs application and even the delay in filing the application has been kept in mind by imposing costs on the respondent plaintiff. 5. Darpan Kwatra son of Sh. Ramesh Kwatra was the new proprietor. Consequently, in my view, the ADJ has given cogent reasons for allowing respondent/plaintiffs application and even the delay in filing the application has been kept in mind by imposing costs on the respondent plaintiff. 5. With regard to the Order 7 Rules 14 and 17 application, learned counsel for the petitioner contends that the plaintiff/respondent was required to produce shop books, bills, ST-35 form and all other documents on the basis of which the suit for recovery had been filed. In this connection, he relies upon a judgment of the Punjab and Haryana High Court in the case of Som Parkash Bansal v. Managing Committee, Hindu Higher Secondary School, Kaithal and Anr. 2003(1) Civil Court Cases 304 (PandH), wherein it has been held as under:- 4. I have considered the submissions made by the learned counsel for the appellant and I do not find any substance in the same. In a suit for declaration in which a specific order passed by an authority is challenged, the copy of the said order must be placed on record, particularly, when the said copy is admittedly in the possession of the plaintiff. The requirement of Order 7 Rule 14 CPC is mandatory and if copies of the impugned orders under challenge have not been produced, the suit filed by the plaintiff is not maintainable. I have gone through the judgment cited by the learned counsel for the appellant. The said judgment is not applicable in the facts and circumstances of the present case. In that case, in a suit for pre-emption the plaintiff did not file the sale-deed along with the plaint. In that situation, it was held that the plaint cannot be rejected, but in the present case the position is entirely different. Here, the impugned orders have not been placed on record and exhibited by the appellant. This Court in Messrs National Rice and Dal Mills v.The Food Corporation of India, 1970 PLR 778 has held that the documents, which are in the possession and power of a plaintiff, upon which he sues, that is, which forms the basis of the suit, must be presented to the Court along with the plaint. This Court in Messrs National Rice and Dal Mills v.The Food Corporation of India, 1970 PLR 778 has held that the documents, which are in the possession and power of a plaintiff, upon which he sues, that is, which forms the basis of the suit, must be presented to the Court along with the plaint. The consequences of non-observance of the provisions of Order 7 Rule 14 CPC are laid down in sub-rule (I) of Rule 18, which states that documents not produced or entered in accordance with the former Rule shall not be received in evidence at the hearing of the suit. The appellant neither annexed these documents along with the plaint nor he had produced the same during the trial. The learned counsel for the appellant further argued that by non-production of these documents, no prejudice has been caused to the respondents. There is no force in this contention also, as it is not the question of prejudice which is to be caused to the respondents, but it is mandatory for the plaintiff at least to produce the documents which are under challenge in the suit. 6. On the other hand, learned counsel for the respondent relies upon Sub Rule 3 of Order 7 Rule 14 as well as Order 7 Rule 17 to contend that the plaintiff can subsequently produce the original of the extracts of the book of account that it has produced along with the plaint. He further submits that in view of Order 13 Rule 1, the respondent/plaintiff can be asked to produce the original documents on or before the settlement of issues. 7. In the present instance, since the plaintiff/respondent has initially filed the original ST-35 form and self-attested true copies of the statement of account, the trial court can always direct at a subsequent stage, the plaintiff respondent to produce the original ledger. In my view, the statutory provision stands complied with by filing a true copy of the account. Consequently, the impugned order calls for no interference in revisional jurisdiction and the present petition is dismissed, but with no order as to costs.