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2016 DIGILAW 145 (RAJ)

Lala Ram v. Subhash Gehlot

2016-01-22

ARUN BHANSALI

body2016
ORDER : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 14.10.2015 passed by the trial court, whereby the application filed by the respondents purportedly under Order 7, Rule 14 CPC has been accepted. 2. The suit was fixed for defendant's evidence and on behalf of the defendant, an application under Section 151 CPC read with Order 7, Rule 14(3) CPC was filed seeking permission of the Court to produce original document for comparison. 3. The application was opposed by the plaintiff, inter alia, indicating that the application under Order 7, Rule 14(3) CPC was not maintainable; the documents does not fall within parameters of provisions of Order 13, Rule 5 CPC, the original documents can only be produced before the settlement of issues and, therefore, the application was liable to be dismissed. 4. The trial court, after hearing the parties, came to the conclusion that a photo-copy of the document was already filed 2 with the written statement and the application has been filed for producing the original for the purpose of comparison and the same is not going to affect the interest of the plaintiff and consequently allowed the application. 5. Learned counsel for the petitioner inter alia contends that the purport of Order 13, Rule 1 & taking away Rule 2 Order 13 CPC was to deprive the court of the power to receive documents produced after filing of the plaint/written statement and after the settlement of issues, reiterated the objections as indicated in the reply and noticed herein-before and further submitted that the document is irrelevant and, therefore, the trial court was not justified in accepting the application filed by the respondent. Reliance was placed on Kirodi Lal v. Chittar Mal, AIR 2014 Raj. 18 . 6. I have considered the submissions made by learned counsel for the petitioner and have perused the material availaible on record. 7. The issue raised in the petition is whether a document which ought to have been produced along with the written statement or, original of documents (copies of which are required to be produced along with plaint/written statement) which ought to have been produced on or before the settlement of issues could be produced after that stage and the court has the power to receive such documents in evidence? 8. 8. It is relevant to note that Rule 1 Order 13 CPC as it stood prior to amendment stated that parties or pleaders shall produce on or before the settlement of issues all the 3 documentary evidence of every description in their possession or power on which they intend to rely and which has not already been filed in court and all documents which the court has ordered to be produced. Rule 2 Order 13 stated that no documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 Order 13 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof and the Court receiving any such evidence shall record reasons for so doing. The Amendment Act 46 of 1999 omitted Rules 1 and 2 of Order 13 and a new rule was inserted which did not give power to the court to receive a document produced after the settlement of issues. 9. In the Amendment Act 22 of 2002 Rule 14 Order 7 CPC and Rule 1A Order 8 CPC were amended. The effect of that amendment is that provisions which enabled production of documentary evidence with leave of the court under Rule 2 Order 13 CPC as it existed earlier and which was taken away by Amendment Act 46 of 1999 was virtually brought back by Sub rule (3) of Rule 14 Order 7 and Sub-rule (3) of Rule 1A Order 8 CPC. 10. Rule 14(3) of Order 7 and Rule 1A(3) of Order 8 CPC states that a document which ought to be produced in court by the Plaintiff or Defendant along with the plaint or written statement or to be entered in the list to be added or annexed to the plaint or written statement but is not so produced or entered 4 in the list shall not "without the leave of the court", be received in evidence on his behalf at the time of hearing of the suit. The provisions as they now stand, it is within the power of the court to grant leave to the Plaintiff or Defendant to produce in evidence a document which he ought to have produced along with the plaint or written statement and entered in the list as required under Sub-rule (1) of Rule 14 Order 7 and Sub-rule (1) of Rule 1A Order 8 CPC but omitted to do so. 11. Further, provisions of Order 18, Rule 4 CPC refers to recording of evidence by affidavit and provides that "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 parties who calls him for evidence provided that where documents are filed and 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". In other words, the party has an opportunity to produce certain documents along with affidavit which is in lieu of examination in chief subject to the rider that its proof and admissibility will be subject to the orders of the court. It is also relevant to note that the power of appellate court to receive additional evidence under Rule 27 Order 41 has not been affected by any of the above-mentioned amendments. 12. Thus reading the amended provisions of Rule 14(3) of Order 7 and Rule 1A(3) of Order 8 CPC, it is not as if by deleting Rule 2 from Order 13 by Amendment Act 46 of 1999 power of court to receive in evidence a document at the time of 5 hearing has been taken away completely but by Amendment Act 22 of 2002 the court is given the power to grant leave to the party to produce at the hearing of the suit documents which ought to have been produced with the plaint or written statement, but not so done. Rule 4 Order 18 introduced by Amendment Act 22 of 2002 enables documents other than those required to be produced along with plaint or written statement to be prouduced along with the affidavit in lieu of chief examination but its proof and admissibility will be subject to the orders of the court. Rule 4 Order 18 introduced by Amendment Act 22 of 2002 enables documents other than those required to be produced along with plaint or written statement to be prouduced along with the affidavit in lieu of chief examination but its proof and admissibility will be subject to the orders of the court. The provisions of Order 13, Rule 1 CPC does not in any manner restrict the operation of provisions of Order 8, Rule 1A(3) CPC. 13. The submissions made by learned counsel for the petitioner are essentially contrary to the express language of Order 8, Rule 1A CPC. The provisions of Order 8, Rule 1A CPC, which were introduced by way of amendment provides that a document ought to be produced in the Court by the defendant under the 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. 14. Therefore, the submissions made by learned counsel for the petitioner that read with provisions of Order 13, Rule 1 CPC, the said provision would apply only before the settlement of issues and the same would not apply once the issues have been settled are baseless. 15. So far as the judgment of this Court in the case of Kirodi Lal (supra) is concerned, while in the said case the document 6 was sought to be produced under Order 13, Rule 1(3) CPC for the purpose of cross-examination, however, no reference has been made to the provisions of Order 7, Rule 14(3) and/or Order 8, Rule 1A(3) CPC and, therefore, the said judgment has no application to the facts of the present case. 16. So far as the submissions made by learned counsel for the petitioner regarding inapplicability of Order 13, Rule 5 CPC is concerned, a plain reading of provisions of Order 13, Rule 5 CPC provides that the same applies to the books, accounts and records and apparently, the same is not applicable. So far as the relevance of the document is concerned, once the copy of the document has been produced along with the written statement, the relevance of the said document would only be examined by the trial court while deciding the suit. 17. So far as the relevance of the document is concerned, once the copy of the document has been produced along with the written statement, the relevance of the said document would only be examined by the trial court while deciding the suit. 17. Besides the above, the nature of order passed by the trial court even otherwise does not require any interference under Article 227 of the Constitution of India. In view of the above discussion, there is no substance in this writ petition, the same is, therefore, dismissed.