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2014 DIGILAW 378 (KAR)

Boramma v. Boraiah

2014-03-20

N.KUMAR

body2014
ORDER : N. Kumar, J. 1. This is a plaintiffs writ petition challenging the order passed by the Trial Court permitting the defendant to mark an unregistered sale deed and also permitting him to pay stamp duty and penalty in respect of the said document. The plaintiff has filed a suit for declaration of title and for possession of the plaint schedule property. Defendants have filed a written statement contesting the claim. Issues have been framed. The plaintiff has produced both oral and documentary evidence and closed his side. Defendants also have adduced evidence. Thereafter, the defendants' counsel wanted to produce some unregistered sale deeds and wanted to mark them. The plaintiffs counsel objected for the same on the ground that the documents are not duly stamped. They are also unregistered and the way it is produced is not in accordance with law. The Trial Court after referring to various judgments of this Court proceeded to hold that an unregistered document could be marked for collateral purpose. There is no absolute bar for marking the documents. Insofar as the document not being duly stamped, is concerned, the Trial Court said that the Court can impound the document and direct the party to pay duty and penalty. Therefore, it has impounded the document directing payment of duty and penalty and thereafter it wants to mark the document. Aggrieved by the said order, the present writ petition is filed. 2. The learned counsel appearing for the petitioner assailing the impugned order contends that when once both the parties have concluded their evidence, a party cannot just produce a document before the Court and request the Court to mark the same. Unfortunately, the Trial Court has given a go by to the provisions of the Code of Civil Procedure and has received the documents and now wants to mark the documents. Therefore, he submits that the procedure adopted by the Trial Court is contrary to the Code of Civil Procedure and therefore, the order is unsustainable. 3. Per contra, the learned counsel appearing for the respondent submits that it is true that the Trial Court has not followed the procedure prescribed under the law. 4. Therefore, he submits that the procedure adopted by the Trial Court is contrary to the Code of Civil Procedure and therefore, the order is unsustainable. 3. Per contra, the learned counsel appearing for the respondent submits that it is true that the Trial Court has not followed the procedure prescribed under the law. 4. In the light of the aforesaid facts and rival contentions, the question for consideration before the Court is, what is the procedure prescribed under law for production of documents especially after the amendment to Code of Civil Procedure in the year 2002. 5. This production of documents in a Civil suit at different stages of the proceedings was found to be the cause for delay in disposal of suits. Therefore, the Parliament taking note of this aspect of the matter amended the Code of Civil Procedure extensively by Act 46/1999 which came into effect from 01.07.2002. The first thing they did was to omit Order XIII Rule 2 of the Code of Civil Procedure, which provided for production of documents at any stage of proceedings if, the party producing the documents showed good cause for non-production of document. Simultaneously, they amended Order 7 and substituted Rule 14which reads as under: 14. Documents relied on in Plaint.- 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 documents not in the 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. 6. (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. 6. After the amendment, it is obligatory on the part of the plaintiff not only to produce the suit document but all the documents, on which he relies on, in support of his case along with the plaint. Sub-Rule (3) of Rule 14 made it clear that if the document is not produced along with the plaint, without the leave of the Court, the Court is debarred from receiving any other documents at the hearing of the suit. The language employed in the said provision is coughed in the negative words. The words used is 'shall not' and therefore, it is mandatory. 7. Similarly, Order VIII was also suitably amended by substituting Rule 1A which reads as under: 1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.- (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced 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 documents-- (a) produced for the cross-examination of the plaintiffs witnesses, or (b) handed over to a witness merely to refresh his memory. 8. Here, again the obligation is cast upon the defendant to produce all the documents in support of his defence along with the written statement. If the documents are not produced along with the written statement, it shall not, without the leave of the Court be received in evidence on his behalf, at the time of hearing of the suit. 8. Here, again the obligation is cast upon the defendant to produce all the documents in support of his defence along with the written statement. If the documents are not produced along with the written statement, it shall not, without the leave of the Court be received in evidence on his behalf, at the time of hearing of the suit. Again, the language employed is coughed in negative words and this also is mandatory. However, an exception is carved out in both the cases where the documents, which are produced for the cross-examination of the plaintiff and the defendant are handed over to the witness merely to refresh their memory. Similarly, the only other stage, where the document which is not produced along with the plaint and Written Statement, which could be produced is at the stage of evidence, along with the affidavit as contemplated under Order XVIII Rule 4(1) of the Code of Civil Procedure, which is as follows: 4. Recording of evidence.- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court. 9. With the substantial amendments to Order XIII of CPC, there is no stage where the Court can fix a date for production of documents, which was the position prior to amendment. Similarly, the provision for production of documents after that stage is being deleted. Therefore, the question of producing documents after these two stages, as a matter of right, would not arise. However, documents could still be produced with leave of the Court. It is by way of an interlocutory application, so that the opposite party would get an opportunity to have his or her say in the matter, and then the Court can decide whether a case for granting leave is made out. Thus, the object of these two amendments is to facilitate speedy disposal of cases. The parties, before going to Court should apply their mind, make full preparation and then enter the Court Hall and not to search for documents after the trial begins. Thus, the object of these two amendments is to facilitate speedy disposal of cases. The parties, before going to Court should apply their mind, make full preparation and then enter the Court Hall and not to search for documents after the trial begins. Though with the avowed object, the Parliament has done its bit, still the Bar and the Bench have yet to reconcile to this legal position and try to follow this mandate and law literally. These provisions have not been kept in mind by the Trial Court in this proceeding. Further, the evidence of both the parties is over, the stage is for arguments. At that stage, the defendants cannot take the documents from their pocket and produce it before the Court. In that view of the matter, the Court below has overlooked this procedural requirement, which would substantially vitiate the proceedings and run counter to the mandate of law. It committed a serious error in receiving the said documents and impounding them and directing payment of duty and penalty with an intention to mark the document. In that view of the matter, the impugned order cannot be sustained. Hence, I pass the following order: (a) Writ Petition is allowed. (b) The impugned order is hereby set-aside.