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2009 DIGILAW 269 (DEL)

Asia Pacific Breweries v. Superior Industries

2009-03-06

SHIV NARAYAN DHINGRA

body2009
JUDGMENT IA No.5990/2007 1. This application under Order 7 Rule 14 and Section 151 of the CPC has been made by the plaintiff seeking to file around 70 additional documents along with affidavit of the witnesses. 2. The present suit is at the stage of plaintiff’s evidence. It is submitted by plaintiff that the plaintiff was in the process of filing affidavit of his witnesses Mr. Raymond Anthony Poletti, Ms. Shini John and Mr. Ashok Chadha and in the process of filing affidavits he proposes to file certain original/ certified /notarized copies of documents along with the said affidavits which were not filed along with the plaint. He had given details of these documents in a chart and in the chart in Column No.3; the plaintiff has given remarks about the documents. The remarks are in the nature of “to support oral evidence of witnesses”, “certified copies obtained after framing issues”, “the documents could be traced only recently”, “the documents acquired by the plaintiff recently”, “the documents notarized after framing of issues”, “certified copies obtained after framing of issues” etc. 3. The list of documents shows that the documents are in the nature of annual reports of the plaintiff’s company, original advertising material ranging from 1987 onwards, photographs of the promotional material and the material used for promotion in respect of the brand of the plaintiff. Plaintiff also included some copies of invoices showing sale of his brand in different countries. 4. It is submitted by the plaintiff that the plaintiff does not seek to establish and prove any new averment against the defendant and the said documents are being filed only to prove the pre-disclosed case of the plaintiff and the pre-disclosed documents shall not cause any prejudice to the defendants. 5. The application is opposed by defendant submitting inter alia that all the documents which the plaintiff seeks to file were in power and possession of the plaintiff and plaintiff had full opportunity to file these documents along with suit. No plausible ground has been given by the plaintiff as to why the documents were not filed at the time of filing of the suit or before framing of issues. The plaintiff did not make out a case under the provisions of Order 7 Rule 14 and therefore the application should be dismissed. 6. Order 7 Rule 14 CPC reads as under: 14. The plaintiff did not make out a case under the provisions of Order 7 Rule 14 and therefore the application should be dismissed. 6. Order 7 Rule 14 CPC reads as under: 14. Production of document on which plaintiff sues or relies.- (1) Where a plaintiff sues upon a document or relies upon 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 possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. .(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. .(4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory. 7. This Rule specifically provides that all the documents on which plaintiff relies or which are necessary to prove the case of the plaintiff must be filed along with the plaint if they are in power and possession of the plaintiff and the plaintiff has to file a list of those documents which are not in his power and possession but on which plaintiff otherwise relies. He has also to specify as to in whose power and possession the documents were as per his knowledge if they were not in his power and possession. The provisions of Order 7 Rule 14(3) bar production of any such documents after filing of the suit without leave of the Court. 8. He has also to specify as to in whose power and possession the documents were as per his knowledge if they were not in his power and possession. The provisions of Order 7 Rule 14(3) bar production of any such documents after filing of the suit without leave of the Court. 8. The sole purpose of asking the plaintiff to file all documents in his power and possession and to file list of those documents which are not in his power and possession is that the defendant while filing written statement should not only respond to the pleadings in the plaint but should suitably respond to those documents which are relied upon by the plaintiff and should file its own documents, if any, in order to defend the claim of the plaintiff. The documents are to be filed by the plaintiff and the defendant at the preliminary stage i.e at the time of pleadings and thereafter parties have to admit or deny the documents and then issues are framed. The issues are not only framed out of the pleadings but also out of the documents relied upon by the parties. The sole purpose of this provision stands defeated if the majority of documents are withheld by either of the parties and the documents are sought to be sneaked into at the time of evidence. If new documents are allowed to be filed by one party, again a de novo trial has to be started since in response to the documents filed by one party, the other party is to be given a chance to file documents in rebuttal and this leads to a fresh trial. The amendments in Civil Procedure Code in 1976, 1999 and 2002 were carried out by the legislature with the sole purpose that the trial should finish early and the trial should not be prolonged. Parties were put on notice by the legislature that they should file all documents in their power and possession at the time of filing of the suit. Parties were put on notice by the legislature that they should file all documents in their power and possession at the time of filing of the suit. Only those documents can be allowed by the Court to be filed later on which were either not in the knowledge of the plaintiff or the plaintiff despite due diligence could not have procured them but mentioned them in the list of reliance giving information as to in whose power and possession the documents were to seek help of the Court to procure the documents. Where the plaintiff has not filed a list of documents relied on and the documents are those such that same were within the knowledge and power and possession of the plaintiff, the Court cannot allow those documents to be filed at the stage of evidence. All the documents which are mentioned by the plaintiff in the list are those which were within the power and possession of the plaintiff. Plaintiff before coming to the Court and filing the suit was under an obligation to get certified copies or notarized copies or photographs and photocopies of those materials which the plaintiff now wants to place on record in support of his case. The plaintiff cannot be allowed to keep on filing fresh material and documents with the progress of the case or along with affidavits of the witnesses. No just and reasonable grounds are made out by the plaintiff as to why the documents were not filed by the plaintiff with the plaint. 9. I find no force in this application. The application is hereby dismissed with costs of Rs.10,000/-.