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2019 DIGILAW 472 (HP)

Dev Resins Pvt. Ltd. v. Sudhir & Company

2019-04-25

VIVEK SINGH THAKUR

body2019
JUDGMENT : Vivek Singh Thakur, J. This application has been filed on behalf of the plaintiff/applicant, invoking Section 151 CPC, for permission to place certain documents on record and to prove the same by way of additional evidence on the ground that the company is maintaining huge record rooms for keeping records, which are subject to audit and sometime due to some human error, it takes time to search the old record and since the transaction was old, the documents could not be traced earlier and therefore could not be produced before the Court despite due diligence and plaintiff/applicant has never acted wrongfully and negligent manner and now after proper and careful search of records, the plaintiff/applicant has found the documents, proposed to be placed and proved on record in evidence, after the closure of plaintiff evidence, leading to filing of this application without delay. 2. In the main suit, recording of evidence of defendant is yet to start. The evidence of plaintiff was closed on 15.6.2017 whereafter on 25.8.2017 and 8.12.2017 evidence of defendants could not be recorded for want of steps to be taken by the defendants. In the meanwhile, on 17.11.2017 present application stands filed along with photocopies of documents with further averments that original documents are in the custody of defendant No.1 and also in the office of Chief Conservator of Forests, Jammu, Government of Jammu and Kashmir. 3. Main suit has been filed on 16th February, 2013 for recovery of sum of Rs.36,20,430/- along with pendente lite and future interest at the rate of 18% per annum with averments in the plaint that defendant No.1 was manufacturing ‘Gum Rosin’ which was used by plaintiff as a raw material for manufacturing resin and plaintiff was also selling Patra to defendant No.1. It is further case of the plaintiff that plaintiff and defendant had been raising independent invoices and bills to each other with regard to respective sales of goods made to each other and there existed a reciprocity of demands and there was independent dealing between the parties and the account maintained for this purpose was mutual, open and current and in alternative, it is pleaded that in case it is considered that account was not mutual, open and current, in that event also, plaintiff is entitled for recovery of said amount as the payments have been made by the plaintiff to the defendants on account of business transaction for making purchase of Gum Rosin on various dates from time to time. 4. By filing written statement on 19.6.2013, it is categorically denied that plaintiff was engaged in manufacturing of resin and was selling Patra to defendant No.1 and plaintiff and defendant No.1 were raising independent invoices/bills to each other with respect to sales of goods made to each other and existence of mutual, open current account on account of alleged transaction and also non-settlement of final balance. 5. After filing replication to the written statement on 10.12.2013, issues were framed on 11.12.2013 and the case was ordered to be listed for recording plaintiff’s evidence on 19.5.2014, however, on that day, instead of leading the evidence an application under Order 7 Rule 14(3) CPC bearing OMP No.198 of 2014 was filed on behalf of plaintiff/applicant for placing on record the documents on behalf of plaintiff on the ground that those documents were necessary for proper adjudication of the suit and plaintiff/applicant could not produce those documents on record due to reason that those aforesaid documents got mixed up with another case file of litigation pending between the parties at District Court, Solan. The said application was allowed on 2.6.2014, whereafter case was again fixed on 19.9.2014 for recording the evidence of plaintiff’s witnesses. 6. On 19.9.2014 three plaintiff witnesses were present, however, documents sought to be proved through these witnesses were neither filed with plaint nor relied upon on the memo of reliance and therefore, for filing appropriate application, matter was adjourned on the request made on behalf of the plaintiff/applicant. 6. On 19.9.2014 three plaintiff witnesses were present, however, documents sought to be proved through these witnesses were neither filed with plaint nor relied upon on the memo of reliance and therefore, for filing appropriate application, matter was adjourned on the request made on behalf of the plaintiff/applicant. On 28.10.2014 another application under Order 7 Rule 14(3) CPC bearing OMP No. 446 of 2014 was filed for placing on record the documents on behalf of plaintiff on the same ground that those documents were necessary for proper adjudication of present case and plaintiff was under bonafide impression that those documents had been filed along with plaint and this mistake came in the notice on 19.9.2014 when plaintiff was summoned to prove those documents and further that plaintiff/applicant could not produce those documents on record as those documents were got mixed up with another case file of litigation between the parties at District Court, Solan with respect to specific performance of agreement, which was initially filed before this Court. 7. The said application was opposed by non-applicants/ defendants by filing reply, however vide order dated 5.3.2015 the said application was allowed subject to all just exceptions. Thereafter, case was listed for recording evidence of plaintiff on 15.6.2015, 17.11.2015, 2.5.2016, 10.8.2016, 21.12.2016, 4.5.2017 and 15.6.2017 and adjournments for recording the evidence, except at one instance on 4.5.2017, were at the request of plaintiff and ultimately, the evidence of plaintiff, after recording the evidence of witnesses, was closed on 15.6.2017.Thereafter, case was listed for recording of evidence of defendants. However, as noticed supra, present application stands filed during interregnum. 8. This application has been opposed by defendants on the ground that documents sought to be placed and proved on record are beyond the pleadings of parties and a new case has been spelt out in the application, which is not permissible under law and permission to place and prove the documents filed with application would amount to changing the basic nature of case and permitting the plaintiff to lead evidence beyond the pleadings. It is further pleaded in reply that alleged transaction indicated in the documents, proposed to be produced, is with respect to purchase of resin from the office of Chief Conservator of Forests, Jammu and in fact the said purchase was for and on behalf of the plaintiff, but in the name of defendant No.1 as the plaintiff was not having licence to purchase the same, whereas defendant No.1 was having the requisite licence for the said purchase. It is contended on behalf of defendants that documents were very much with the plaintiff as material was purchased for the plaintiff but in the name of defendant No.1 for technical reasons as defendant No.1 was having licence to purchase and plaintiff was not having the same and the material, if any, alleged to so purchased was not used by the defendants but by the plaintiff itself and the plaintiff had not produced these documents with plaint as it was never the case of plaintiff that it had made payment on behalf of defendant No.1 for purchase of resin from Forest Department of Jammu and Kashmir. Suit has been filed only with respect to the purchase of Gum Rosin and Patra and in any case, the plea, which has been taken in application for production of those documents, is not part of the pleadings in plaint and now allowing these documents to be placed and proved in evidence would cause serious prejudice to defendants as the defendants, for want of pleadings in plaint, had no occasion to explain their position in written statement. 9. The defendants/non-applicants have relied upon the decision of Apex Court passed in M. Chinnasamy vs. K.C. Palanisamy and others reported in (2004) 6 SCC 341 (para 42) wherein it is held that it is now well settled principle of law that evidence adduced beyond the pleadings would not be admissible nor can any evidence be permitted to be adduced which is at variance with such pleadings. 10. Further reliance has been placed on decision rendered in Ramesh Kumar and another vs. Furu Ram and another reported in (2011) 8 SCC 613 wherein the Apex Court has reiterated the same principle by holding that no amount of evidence, contrary to pleadings, can be relied on or exhibited. 11. 10. Further reliance has been placed on decision rendered in Ramesh Kumar and another vs. Furu Ram and another reported in (2011) 8 SCC 613 wherein the Apex Court has reiterated the same principle by holding that no amount of evidence, contrary to pleadings, can be relied on or exhibited. 11. Reliance on behalf of the plaintiff/applicant has been placed on the pronouncement of the Apex Court rendered in Kapil Kumar Sharma vs. Lalit Kumar Sharma and another reported in (2013) 14 SCC 612 wherein application under Order 7 Rule 14 CPC, seeking leave to file additional evidence in probate case and civil suit, was allowed by the Apex Court at the stage of cross examination. 12. Referring to the pronouncement of the Apex Court in K.K. Velusamy vs. N. Palanisamy reported in (2011) 11 SCC 275 (See paras 13 and 19) it is contended on behalf of the defendants that no doubt deletion of provision of Order 18 Rule 17-A CPC does not mean that no evidence can be received at all, after a party closes his evidence, however, for making out a case to lead additional evidence at such a stage, it must be established on record that such evidence could not be produced despite due diligence and also the evidence must be relevant, admissible and within the scope of pleadings and power, under Section 151 of CPC vested in the Court, is not intended to be used routinely merely for the asking as its such user will defeat the very purpose of various amendments to the Code to expedite the trial and therefore, unless the application is found to be bonafide and where the additional evidence, oral or documentary, will assist the Court to clarify the evidence on the issues and will assist in rendering the justice and the Court is satisfied that if earlier non-production was for valid and sufficient reason, the Court may exercise its discretion to allow to lead additional evidence and in case application is found to be mischievous or frivolous or to cover up negligence or lacunae, it should be rejected with heavy costs. 13. 13. It is contended on behalf of plaintiff/applicant that forest produce does not automatically stand transferred unless owner of goods (purchaser) has paid price and sale tax and at the time of purchase of resin, defendant No. 1 was not having sufficient amount for said purchase and on request of deceased Sunil Sood, plaintiff/applicant had made the payment on behalf of defendant No.1 and in the accounts maintained by plaintiff/applicant, there is transaction of Rs.28,86,400/- with regard to making the payment to the Chief Conservator of Forests, Jammu for defendant No.1, and the said accounts have been produced in evidence as Ext.PW4/D-1 to Ext.PW4/D-13 and the said transaction has been denied by defendants and therefore, the documents, Annexure A, filed with application i.e. order passed by the Chief Conservator of Forest, Jammu having the details of payment made by plaintiff on 9.3.2011 and 10.3.2011 are necessary for adjudicating the claim of plaintiff/applicant. It is further submitted on behalf of plaintiff/applicant that reason for late production of documents is that original is in possession of department and defendants and plaintiff or its officers/officials being non-resident of Jammu and Kashmir are not entitled to get information under Right to Information Act in that State and there was human error at the time of keeping the photocopies of documents, now placed with application, in the record room and they were misplaced by the concerned person. It is further contended that being documents proposed to be placed and proved on record are public documents, and cannot be tampered with by plaintiff/applicant and therefore, these documents cannot be said to be fabricated or prepared by plaintiff/applicant. It is submitted that plaintiff/applicant has not travelled beyond the pleadings as plaintiff/applicant has paid the amount sought to be proved through proposed additional evidence and therefore, in view of the nature of suit, the defendants should either return the goods or the money and these documents are being filed only to support the entries in account maintained by plaintiff/applicant Ext.PW4/D-1 to Ext.PW4/D-13 which contains the entry of concerned payment. 14. I have considered the arguments advanced by learned counsel for the parties and have also gone through record. 15. 14. I have considered the arguments advanced by learned counsel for the parties and have also gone through record. 15. From the pleadings in plaint, it is evidently clear that suit has been filed for recovery of amount against the payments made by plaintiff to defendants on account of business transaction for making purchase of ‘Gum Rosin’ on various dates from time to time. There is no reference in plaint with respect to payment of amount by plaintiff/applicant to third party on behalf of defendant No.1 on asking of its proprietor late Shri Sunil Sood. The case set up in application for production of additional evidence is missing from plaint. Therefore, there was no occasion for the defendants to respond thereto in written statement. Though, in reply to application, the defendants, without admitting the transaction, have given explanation about the transaction. However, the fact remains that averments made in application or in reply thereto, are not part of pleadings in plaint or written statement. Therefore, in view of settled law, the evidence beyond the pleadings is not permissible. 16. It is true that ledger account statement Ext.PW4/D-1 to Ext.PW4/D-13 was filed by plaintiff/applicant along with plaint which contains the entry regarding the payment of Rs.28,86,400/- to Chief Conservator of Forest, Jammu with endorsement that the said amount was paid on behalf of M/s Sudhir and Company Ltd. However, it is also the fact that no such claim has been put forth in the plaint for recovery of amount paid to third party. 17. Even otherwise, for other reasons also, the plaintiff/applicant is not entitled for discretionary relief for the reasons assigned hereinafter. 18. It is the case of plaintiff/applicant that purchase of resin, referred in documents proposed to be placed on record, was by defendant No.1 and role of plaintiff was only to make payment on the request of proprietor of defendant No.1 and further that plaintiff/applicant had made the payment of Rs.28,86,400/- only to the Chief Conservator of Forests, Jammu which was the price of Oleo Resin, whereas sale tax was paid by defendant No.1 M/s Sudhir and Company by deposit of Rs.5,00,945/- through Government Challan and the entire material was purchased by defendant No.1 for use of plaintiff and it was transported by defendant No.1. On perusal of Annexure A, filed with application, reveals that Rs.28,86,400/- is inclusive of sale tax of Rs.5,00,945/- and in case the amount of Rs.5,00,945/- was paid by defendant No.1 the remaining amount would be Rs.22,03,857/- only. Further the entry in Ext.PW4/D-1 to Ext.PW4/D-13, is indicating that on 9.3.2011 an amount of Rs.28,86,400/- was paid by plaintiff/applicant to Chief Conservator of Forest, Jammu on account of defendant No.1, whereas in document Annexure A, Rs. 2 lacs is reflected to be paid through two different CDRs of Rs. 1 lac each on 23.2.2011 payable at SBI Jammu and Rs.24,56,400/- is stated to have been deposited by plaintiff on 9.3.2011 through TEGS and Rs.2,30,000/- is reflected to be paid by plaintiff on 10.3.2011 through TEGS. Therefore, Annexure A proposed to be placed and proved on record is not in consonance with entries made in ledger and probably for this reason only, plaintiff/applicant has not produced the said documents earlier with plaint and even thereafter at the time of filing two applications, OMP No. 198 of 2014 and OMP No. 446 of 2014 filed under Order 7 Rule 14(3) CPC for placing certain documents on record and it has now been proposed to be placed on record without any reference of claim for that in plaint. Defendants have taken a position in the written statement as well as in cross examination to witnesses. Therefore, allowing this application at this stage would certainly cause irreparable loss and prejudice to the defendants. 19. Further PW4 Dinesh Kumar who has appeared as a witness being authorised person of plaintiff No.1, on behalf of plaintiff company, has been confronted by defendnats in his cross examination with respect to entry of payment of Rs.28,86,400/- in Ext.PW4/D wherein this witness has tried to explain that such payment was made to third party at the instance of defendant No.1. As discussed above, no such case has been set up in plaint. Therefore, this application is found to be filed either mischievous or to cover up negligence or lacunae and therefore, deserves to be disallowed. 20. As discussed above, no such case has been set up in plaint. Therefore, this application is found to be filed either mischievous or to cover up negligence or lacunae and therefore, deserves to be disallowed. 20. The documents proposed to be placed and proved on record are (i) order dated 14.3.2011 passed by the Chief Conservator of Forest in favour of defendant No.1, (ii) Toll-Post Ticket dated 25.3.2011 regarding transportation of forest produce by defendant No.1, (iii) GR of Jetking Roadways (Regd) and (iv) Form ST-16 along with Form 25 regarding the payment of sale tax i.e. Rs.5,00,945/- by defendant No.1. It is the stand of applicant/plaintiff that this purchase was made by defendant No.1 and plaintiff/applicant has only made the payment to facilitate the same as defendant No. 1 was not having sufficient funds for the said purchase and it is also claim of plaintiff/applicant that originals are lying with the department and defendants. If it was the purchase made by defendant No.1 having no link with plaintiff/applicant except facilitating the purchase by providing funds, there was no occasion for plaintiff/applicant to have these documents in its record. Even if it is considered that photocopy of order dated 14.3.2011 passed by the Chief Conservator of Forest Jammu was kept in the record of plaintiff as a supported document with respect to payment of Rs.28,86,400/- even then there was no occasion for plaintiff/applicant to have the possession of photocopy of Toll Post Ticket, GR and sale tax receipt and Form ST-16 along with Form 25. But it is the case of plaintiff/applicant that those documents were misplaced or could not be traced in its record room. It is not the case of plaintiff that he has procured the photocopies of these documents from the concerned agency, rather it has been categorically contended on behalf of the plaintiff/applicant that he was not having any right to procure these documents under RTI Act and also it is not the case of plaintiff/applicant that these documents have been procured by it from the offices concerned but it is specific plea of plaintiff/applicant that these documents have been traced in his huge record room maintained by it. Therefore, now production of these documents at this stage, which were in possession of plaintiff, definitely creates doubt about its bonafide. 21. Therefore, now production of these documents at this stage, which were in possession of plaintiff, definitely creates doubt about its bonafide. 21. Plea of plaintiff/applicant that these documents could not be produced earlier on account of human error is also not tenable as after filing of suit, the plaintiff has preferred application under Order 7 Rule 14(3) CPC twice by taking identical plea in those applications that documents were intermingled in the record of another case pending in District Court, Solan. Plea in the present case is also almost similar as now it has been canvassed that these photocopies were misplaced in the record room. 22. Therefore in view of above discussion, I am of the considered view that production of additional evidence proposed to be placed and proved on record with this application would not facilitate the fair adjudication of case and I also find that these documents were in possession of plaintiff/applicant and its earlier non-production was not for bonafide, valid and sufficient reason. Plaintiff has either failed to exercise due diligence or has withheld these documents deliberately. Accordingly, the present application is dismissed.