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2010 DIGILAW 558 (ORI)

Sashi Bhusan Rath v. Uco Bank

2010-08-06

I.MAHANTY

body2010
JUDGMENT I. MAHANTY, J. — The present writ application has been filed by the petitioner-Sashi Bhusan Rath seeking to challenge an order dated 14.11.1996 passed by the learned Additional District Judge, Khurda in Civil Revision No. 15 of 1996 affirming the order dated 27.4.1996 passed by the learned Civil Judge (Sr. Division), Khurda in T.M.S. No. 10 of 1992, whereby, the learned Civil Judge has rejected the petition filed by the defendant-petitioner with a prayer to permit him to file some documents as per the list appended to the written statement. 2. On perusal of the records, it appears that the Opposite Party-bank has filed a suit for realization of Rs.89,956/- from the defendant in the Court of learned Civil Judge (Sr. Division), Khurda and the same was registered as T.M.S. No. 10 of 1992. Pursuant to the summons issued by the learned trial Court, the Defendant No.1 (petitioner herein) entered appearance and filed written statement denying the assertion made in the plaint and in the written statement, he indicated that the defendant sought to rely upon as many as 48 documents listed therein but did not file copies of the said documents at the time of filing of the written statement. 3. It appears that after the hearing of the suit commenced and four witnesses had been examined on behalf of the plaintiff, at that stage, on 24.4.1996, the defendant-petitioner filed an application in the Court praying, inter alia, for permission to file documents as per the list appended to the written statement. This application of the defendant-petitioner came to be rejected by the trial Court vide order dated 27.4.1996 and the said order, though challenged before the Additional Dist. Judge, Khurda in Civil Revision No. 15 of 1996, the same came to be affirmed by order dated 14.11.1996 and consequently, dismissed the revision filed by the defendant-petitioner. 4. Learned counsel appearing for the defendant-petitioner submitted that although the defendant had filed his written statement clearly describing therein the details of the docu¬ments, the defendant sought to rely upon, by mistake/omission, the said documents were not filed before the trial Court, before the settlement of issues as required under the provision of the Civil Procedure Code. 4. Learned counsel appearing for the defendant-petitioner submitted that although the defendant had filed his written statement clearly describing therein the details of the docu¬ments, the defendant sought to rely upon, by mistake/omission, the said documents were not filed before the trial Court, before the settlement of issues as required under the provision of the Civil Procedure Code. Learned counsel for the petitioner herein submitted that it is well settled in Catena of decisions of the Hon’ble Supreme Court as well as this Court that the mandate of the Civil Procedure Code are “handmades of justice” and are not meant to obstruct the free-flow of it. He further submitted that Order-13 Rule-2 of the Civil Procedure Code ought to be liberally construed and a mistake already committed, should not be mechani¬cally shut out for his defence especially when the other party (plaintiff) would not be prejudiced in any manner. Learned counsel for the petitioner further submitted that this Court in the case of Bhikari Charan Patra v. Basanti Bewa and others, 58 (1984) CLT 145 while considering the scope of Order-13 Rule-2, came to hold that “xx xx xx Where, however, the document is vital and would assist the Court in coming to a decision, the document should not be shut out.” Reliance was also placed on the decision of this Court in the case of Hemanta Kumar Basu v. Sudarsan Sahoo, 62 (1986) CLT 441. 5. Learned counsel appearing for the plaintiff-bank (Opposite Party No.1 herein) submitted that the trial Court as well as the lower revisional Court has considered the plea of the defendant and has rejected the prayer for being permitted to file the document, inter alia, on the ground that since the defendant had not supplied copies of the documents to the plaintiff’s counsel and had kept the plaintiff in complete darkness. Further, since no good case had been indicated in the petition filed on behalf of the defendant, the prayer made by him has been accordingly rejected. In this respect, learned counsel for the Plaintiff-Opposite Party No.1 submitted that Order-8 Rule-1 as well as Order-13 Rule-10 of the Civil Procedure Code (as it stood prior to the 2002 amendment) required the defendant to file the documents relied on by him along with the “written statement” or had before “settlement of issues”. In this respect, learned counsel for the Plaintiff-Opposite Party No.1 submitted that Order-8 Rule-1 as well as Order-13 Rule-10 of the Civil Procedure Code (as it stood prior to the 2002 amendment) required the defendant to file the documents relied on by him along with the “written statement” or had before “settlement of issues”. Even though Order-13 Rule-2 vested the trial Court, power to condone any delay in submitting document, yet the defendant was required to provide “good cause” to the satisfaction of the Court for the non-protection thereof. The trial Court and the lower revisional Court not having been satisfied by the cause shown, in Article-227 of the Constitution of India. Hon’ble High Court’s power is to be exercised very sparingly and, resulting to such authority, no correction of errors of facts can be made. Hence, reliance was placed on the decision of this Court in the case of Satya Sundar Tripathy v. Mamata Tripathy, 2007 (II) OLR 668 . 6. I have given my anxious consideration to the contention advanced by the learned counsel representing the parties. I have also perused the impugned orders which have been appended as Annexures 1 and 2 to the present application under Articles 226 and 227 of the Constitution of India. There can be no doubt that the Civil Procedure Code is a law of procedure and has been framed as a “handmade of justice” and, therefore, ought not to be interpreted in a manner so as to obstruct or shut out vital documents on which, any party to the proceeding relies upon. In the present case, no doubt the defendant had failed to submit the documents at the time of filing the written statement nor pro¬duced the same prior to the settlement of issue, even then, it cannot be said that the plaintiff was taken by surprise or kept in the dark, as concluded by the trial Court as well as the revisional Court. Since the defendant in its written statement had clearly indicated the details of the documents he intended to rely upon in defence of the suit and had also vividly described the said documents in the written statement. Since the defendant in its written statement had clearly indicated the details of the documents he intended to rely upon in defence of the suit and had also vividly described the said documents in the written statement. While it is incum¬bent upon the defaulting party to satisfy the Court by providing good and sufficient reason for condoning such lapse on the part of the defaulting party, yet, the said provision ought to be liberally construed since the Courts of justice is always to arrive at a fair and just decision in a case. Such a fair and just decision cannot be arrived at, if the Court shuts out from its consideration vital and important documents, germane for deciding the issues which arise for consideration of the trial Court. I am in respectful agreement with the views expressed by this Court in the case of Bhikari Charan Patra (supra) and, therefore, direct quashing of the impugned orders under Annexures 1 and 2 and further direct that the defendant be given an opportunity to produce the documents sought to be relied upon by him within a period of one month from today. 7. This writ petition is allowed in terms of the direction as noted hereinabove. It is further made clear that in the event the plaintiff desires to recall witnesses who have already been examined for further examination, in view of the documents being produced by the defendant though belatedly, such opportunity may be afforded to the plaintiff also. Since the suit has been pend¬ing before the trial Court since 1992, the trial Court is direct¬ed to target this case for conclusion at the earliest. Petition allowed.