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2019 DIGILAW 349 (KAR)

Surekha Devi v. Dinesh Singh

2019-02-04

SREENTVAS HARISH KUMAR

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JUDGMENT : Sreentvas Harish Kumar, J. - The defendants 1 to 3 in O.S.No.2731/2002 on the file of XIII Addl. City Civil and Sessions Judge have preferred this writ petition assailing the order of the trial court on I.A. 26 filed under Order XIII, Rule 1 read with section 151, CPC. 2. At a stage when the cross-examination of DW-1 was in progress, the said application was filed on behalf of the plaintiff for production of 13 documents as mentioned in Annexure 'E'. The plaintiff requested the court to keep this application pending. It was taken into consideration after closure of recording of all the witnesses of the defendants was over. The trial court allowed this application and permitted the plaintiff to produce the documents. 3. The learned counsel for the defendants argues that the trial court has committed an error in allowing this application in as much as after amendment was brought to the Civil Procedure Code, Rule 2 of Order XIII was omitted and therefore neither of the parties to the suit could produce the documents at a belated stage. He further argues that according to Order XIII, Rule 1(3), only those documents that can be confronted to the witnesses during cross-examination can be produced and not for any other purpose. Since the plaintiff wanted to re-open his case for getting these documents marked, the said application should have been dismissed having regard to the scope of Order XIII, Rule 1 CPC. He submits that these documents are in no way required for plaintiff's case. 4. The learned counsel for the respondent argues that the plaintiff/respondent reserved his liberty to lead rebuttal evidence and this was permitted by the court. The petitioners' case is founded on a will which is disputed by the respondent. The trial court has framed an issue in regard to proof of Will by the defendant and therefore the respondent reserved his liberty to lead rebuttal evidence. This was the reason for making application as per I.A.26 to lead rebuttal evidence by producing the documents. After closure of the defendants' evidence, the said application was allowed and the respondent was permitted to lead rebuttal evidence. There is no infirmity in the order of the trial court. Therefore writ petition is to be dismissed. 5. The points of arguments give rise to interpretation of Order XIII, Rule 1 CPC. After closure of the defendants' evidence, the said application was allowed and the respondent was permitted to lead rebuttal evidence. There is no infirmity in the order of the trial court. Therefore writ petition is to be dismissed. 5. The points of arguments give rise to interpretation of Order XIII, Rule 1 CPC. Plain reading of this provision shows that the parties to the suit could produce only those documents, the copies of which were produced at the time of presenting the plaint or filing written statement. Sub-rule (3) is an exception to sub-rule (1) for production of a document by a party for the purpose of cross-examination or witness of the other party or for handing over a document to a witness to refresh his memory. So it is quite clear that according to Order XIII, Rule 1, only the originals of the copies which were produced at the initial stage of presenting the plaint or fading the written statement can be produced and no other document is permitted to be produced. 6. The question obviously arises whether at all the parties are totally precluded from producing the documents that were not produced at the initial stage. For this purpose Order VII, Rule 14 and Order VIII, Rule 1 of Civil Procedure Code need to be referred to. According to Order VII, Rule 14, the plaintiff has to produce the document upon which he bases the suit and he can also produce the documents on which he relies upon in support of his claim. He has to enter such documents in a list. Order VIII, Rule 1A states that the defendant should also produce a document upon which he bases his defence and any other document that he may rely upon in support of his defence or set off or counterclaim. Order VII, Rule 14(3), CPC makes it very clear that the documents which were not produced at the inception i.e., according to Rule 1 shall not be produced without the leave of the court and even Order VIII, Rule 1A (3) also states that the defendant cannot produce the document which was not produced along with the written statement without the leave of the court. 7. 7. Again in these two provisions, it is made clear that a document produced for the purpose of cross examination of a witnesses or for refreshing the memory of a witnesses can be produced even without leave of the court. Therefore on conjoint reading of Order XIII, Rule 1 and Order VII Rule 14(3) and Order VIII, Rule 1A(3), it can be said that the plaintiff or the defendant can very much produce a document at a subsequent stage in the proceedings of a suit by obtaining leave of the court. Even though Order XIII, Rule 2, CPC was omitted after the amendment was brought in the year 2002, production of documents at later stage of the suit is not taken away and all that is required is to obtain the leave of the court. 8. Viewed thus, the application made by the respondent in this writ petition cannot be said to be not maintainable. The respondent should have sought permission according to Order VII, Rule 14(3) CPC. He only quoted the provision under Order XIII, Rule 1, CPC, but the said application can be treated as one filed under Order VII, Rule 14(3) CPC. 9. Here in this case, the plaintiff reserved his liberty to lead rebuttal evidence and for that purpose he produced the set of documents by making an application as per I.A.26. Once the plaintiff is permitted to reserve his right to lead rebuttal evidence, he can produce the documents and therefore if his application came to be allowed by the trial court, allowing the application cannot be said to be illegal. 10. Now the learned counsel for the petitioners submits that he has no objection for marking the documents produced by the respondents along with I.A.26. He makes a request to permit the petitioners also to produce three documents viz., lease-cum-sale agreement, certified copy containing the signature and thumb impression of the executor of the Will and the certified copy of the judgment in O.S .No. 1782/ 1994. 11. The petitioners are at liberty to make appropriate application in the trial court for production of these documents and if such an application is made, the trial court may consider it and receive the documents in evidence subject to rules of admissibility. From the above discussion, I come to conclusion that this writ petition deserves dismissal and ordered accordingly.