Kailashnath & Associates v. Vithoba V. N. Panvelcar
2012-03-02
F.M.REIS
body2012
DigiLaw.ai
JUDGMENT:- Heard Shri Y. Nadkarni, learned Counsel appearing for the petitioner and Shri Shivan Dessai, learned Counsel appearing for the respondents. 2. Rule. Heard forthwith by consent of learned Counsels. 3. Shri S. Dessai, learned Counsel waives service on behalf of the respondents. 4. The above petition challenges the order passed by the learned Civil Judge Senior Division, Panaji Goa, dated 29.03.2011 whereby an application filed by the petitioner to produce a letter of authority dated 16.05.1998 came to be rejected. It is the contention of Shri Y. Nadkarni, the learned Counsel appearing for the petitioner that the authority of the partner in filing the suit had not been challenged. The learned Counsel has further taken me through the evidence of PW 1 and pointed out that the said witness had admitted that he did not have a power of attorney given by the other partners nor a letter of authority to file a suit. The learned Counsel further pointed out that the attempts were made by the petitioner to re-examine the said witness and the learned Judge has refused such leave. The learned Counsel further pointed out that in the meanwhile as according to the petitioner, the letter of authority dated 16.05.1998 was found, the application came to be filed on 05.02.2011 for leave to produce the said document. 5. The respondents opposed granting of the relief to the petitioner in the said application inter-alia contending that the said letter of authority is a fabricated document and disputed the authenticity of the said document. The learned Judge by the impugned order, though found prima faice that the said document would be relevant for the purpose of deciding the suit nevertheless on the basis of evidence on record as well as the contention of the respondents came to the conclusion that the said document cannot be considered to be an authentic document and consequently dismissed the said application. 6. On perusal of the plaint, I find that the suit was filed by the petitioner which is admittedly a partnership firm. It is also not in dispute that the partner who has filed the suit is one of the partners of the partnership firm as on the date of the filing of the suit. Even assuming that other partners have to be joined in the suit nevertheless such defect is a curable defect as the partnership firm is a registered firm.
It is also not in dispute that the partner who has filed the suit is one of the partners of the partnership firm as on the date of the filing of the suit. Even assuming that other partners have to be joined in the suit nevertheless such defect is a curable defect as the partnership firm is a registered firm. The said aspect has not been considered by the learned Judge whilst passing the impugned order. Taking note and considering that Order 7 Rule 14 of the Civil Procedure Code provides only to grant leave to produce the documents not produced with the plaint, the findings of the learned Judge that the said document prima facie appears to be fabricated was not justified at this stage. No doubt the contention of the respondents to the effect that the said document is a fabricated document and/or has been manufactured during the pendency of the proceedings is a matter which will have to be left open. The petitioner has to prove the said document and authenticity thereof in accordance with law. It is made clear that merely granting leave to rely on the said document by itself does not dispense the petitioner to prove the said document and contents thereof in accordance with law. 7. Subject to the above, I find that the impugned order passed by the learned Judge deserves to be quashed and set aside and the petitioner be granted leave to rely on the said document subject to payment of costs of Rs.5000/- as condition precedent. The learned Counsel for the respondents fairly states that the costs may be paid to the Goa State Legal Services Authority. 8. In view of the above, I pass the following: ORDER (i) The impugned order dated 29.03.2011 is quashed and set aside. (ii) The petitioner is granted leave to produce the said document in the light of the observations made herein above subject to payment of costs of Rs.5000/- to the Goa State Legal Services Authority within four weeks from today. (iii) Rule is disposed of in above terms with no order as to costs. (iv) The parties are directed to appear before the learned Judge on 16.04.2012 at 10.00 a.m. Ordered accordingly.