Delhi High Court
Sh. Hardyal Singh vs Smt. Kamlinder Kaur on 5 April, 2002
Equivalent citations: 2002IVAD(DELHI)254, 97(2002)DLT868, 2002(64)DRJ638, 2002 A I H C 2171, (2003) 1 CIVILCOURTC 647, (2002) 4 CIVLJ 120, (2002) 97 DLT 868, (2002) 3 RECCIVR 123
Author: Mahmood Ali Khan
Bench: Mahmood Ali Khan
JUDGMENT Mahmood Ali Khan, J.
1. This civil revision is filed by the petitioner, who is defendant in the suit, assailing the order of an Additional District Judge dated 21.7.2000 by which he has allowed the plaintiff to produce some documents at the belated stage subject to payment of Rs. 250/- as cost.
2. The respondent, has filed a civil suit for recovery of money and rendition of account against her father which is now posted before the Additional District Judge for recording evidence. An application under Order 13 Rules 1 and 2 CPC was filed by her for permission to file certain documents, detailed of which have been given in para 2 of the application. In the application it was stated that the case was taken up for trial on 27.1.2000 when the Attorney-cum-Advocate for the plaintiff offered himself for re-examination on the question raised by the counsel for the defendant. During the cross-examination of the plaintiff (PW1) she wanted to submit some documents for clarification of certain facts which was objected to on behalf of the defendant on the ground that an application for it had not been field. Thereafter, the plaintiff filed the application and wanted to place on record the photo copies of the letters of the defendant dated 6.12.1974 and 8.10.1978 addressed to the plaintiff and her husband, photo copies of the income-tax returns of the plaintiff filed by the defendant for the assessment years 1978-79 up to 1982-83, income-tax returns for the assessment year 1983-84 to 1984-85 filed by the chartered accountant of the plaintiff after 1984 and also balance sheet for the year 1992-93, photo copy of the correspondence exchanged between income-tax department and the chartered accountant in respect of the income tax assessment for the assessment year 1981-82 onwards up to the assessment year 1985-86, photo copy of the insurance premium in respect of policies no. 24694604, 24696751 up to the year 1991-92, phto copy of the undertaking given by the defendant on 26.10.1984, any other document which might become necessary after the evidence of the defendant was recorded. It was alleged that the photo copies of documents mentioned at s.no.1.3 and 7 were being filed as the originals were dispatched by the plaintiff from London and that they would be submitted after they were received back. It was further submitted that original of documents at s.no.2,4,5 and 6 were with Income-tax Department and true copies thereof had been obtained by the chartered accountant who would authenticate the same when called as a witness. These documents were very relevant to establish the true facts. The documents mentioned at s.no.1,2 and 3 will prove the true financial status of the defendant vis-a-vis the financial position of the plaintiff during the relevant period and will also prove the extent to which the defendant/petitioner had misused the power of attorney given by plaintiff. The documents from s.no. 4 to 6 will prove that the defendant had failed to discharge his obligations faithfully under the power of attorney. He had created problem and financial liability for the plaintiff and those documents would also prove that the plaintiff continued paying premium for these polices right up to maturity though the defendant had stopped paying any premium after 1982-83 and he had also not handed over the policies to the plaintiff. Further, the documents at s.no.7 will depict the true financial position of the plaintiff and her family vis-a-vis the defendant. The plaintiff also sought leave of the court of file list of certain witnesses since the order on the prayer is not assailed in this petition, the facts relating to that need not be stated here. It was prayed that the plaintiff may be allowed to file the documents and permitted to examine the witnesses.
3. This application was strongly opposed by the defendant. It was contended that the provisions of law which was being invoked for obtaining the relief in the application had not been mentioned. The application was a malafide attempt of the plaintiff to circumvent the law and cause prejudice to the defendant. Therefore, it should be dismissed. The suit was filed by the plaintiff sometime in March 1985. Whatever documents that were relied upon by the plaintiff were filed at the time of the filing of the suit. Documents which were not filed till the date of the settlement of the issues could not be permitted to be filed now. The pleadings were complete and the case was proceedings for trial and recording of the evidence for several years. The instant application had been filed after about 15 years of the filing of the suit and no explanation whatsoever had been given by the plaintiff for this gross delay. The application deserved to be dismissed for this reason also. After the cross-examination of the plaintiff the present application was filed in order to fill in the lacunae in the evidence of the plaintiff. The plaintiff wanted to file some documents which were admittedly in her power and possession right from the beginning. She wanted to file forged documents amongst others the alleged undertaking of the defendant which was forged. The court could not assist a party whose conduct was tained and malafide. If the application was considered to be under Order 13 Rule 2 CPC the plaintiff was required to plead and establish good cause for non-production of the documents on or before the settlement of the issues. The plaintiff had not offered any explanation for the late production of these documents. No reason had been given why these documents could not be filed with the plaint or before the settlement of the issues. The documents were also not relevant to the present controversy. If the documents were allowed to be filed it would cause gross prejudice and injustice to the defendant. The statement of the plaintiff was recorded and her allegation that her attorney had offered himself for re-examination had no meaning in law. It was opposed by the defendant. The plaintiff could not substitute a witness for the purposes of re-examination. Re-examination under law could be of the same person whose statement was recorded earlier. The plaintiff was also seeking two distinct reliefs in the application and for this reason also the application was not maintainable. The application was also not supported by affidavit. It was denied that the defendant had ever misused the power of attorney executed in his favor by the plaintiff. It was prayed that the application should be dismissed with exemplary cost.
4. In the rejoinder the plaintiff reiterated her own case and denied those of the defendant/ petitioner pleaded in the reply.
From the reading of the impugned order it appears that the learned Additional District Judge considered this application under Order 13 Rule 2(2) CPC. The learned Additional District Judge allowed this application observing that the evidence of the plaintiff was being recorded and permission to produce the documents at that stage would not cause prejudice to the defendant.
5. The argument of the counsel for the plaintiff/ respondent is that the the plaintiff is a resident of London and that she could not file certain documents, details of which have been mentioned in the application. with the plaint or at the time of the settlement of the issues and that these document were sought to be produced at the trial stage when the evidence of the plaintiff was being recorded for clarification of certain facts emerged from the cross-examination of the plaintiff, PW1. It is submitted that these documents are relevant for deciding the issues. The plaintiff wanted to produce the letters of the defendant which were sent by him to the plaintiff, the copies of the income-tax returns of the plaintiff which were being submitted by the defendant or the chartered accountant for the years mentioned in the application and also the receipt showing payment of insurance premium to the LIC etc. It is argued that no prejudice will be caused to the defendant as the evidence is yet to be recorded and further some of the documents can be confronted to the defendant during his cross-examination also.
6. Contrarily the argument of the counsel for the petitioner/defendant is that all these documents were in power and possession of the plaintiff from the very beginning and no explanation at all has been given for their non-filing for 15 years form the date of the filing of the suit or at the time of the settlement of the issues 5 years back. He has, therefore, urged that since no good cause has been shown for non-production of these documents with the plaint or before or at the settlement of issues the court cannot show indulgence and exercise discretion in favor of the respondent. It is submitted that the provision of Order 13 Rule 2 is stringent and does not permit late production of the document by a party without good reasons being shown and also without recording reasons for admission of the documents at the belated stage by the court. Lastly, it is argued that the learned Additional District Judge has failed to notice that no plausible reasons has been given for late production nor has he himself given good reasons for allowing the application of the plaintiff. He has, therefore, argued that the impugned order is not sustainable in law and should be set aside. He has cited Kartar Singh v. Sube Singh , .
O.P. Sanghi v. Manufacturers Co-op. Industrial Estate Limited and Ors. , . Ashok Kumar and Ors. v. Surjit Kaur , , Dewan Chand v. Chandra Kanta Sharma , 1995 RLR (Note) 2 and Ms. Arati Bhargava v. Kavi Kumar Bhargava , in support of his argument.
7. It is not in dispute that the documents which are sought to be filed with the application were in the power and possession of the plaintiff/respondent even at the time of the filing of the suit in 1985 and/or at the time of settlement of the issues about 5 years back. In the application it is submitted that filing of these documents is necessary in the interest of justice and to enable the court to arrive at truth on a number of points raised by the defendant during cross-examination of PW-1. No reason has been given as to why these documents. If they were relevant for deciding the question involved, were not produced before the issues were settled. Even during the course of argument counsel for the plaintiff has not explained why these documents, which had always been in the power and possession of the plaintiff, were withheld and not filed on or before the settlement of the issues. If the documents are such that a witness could be confronted with them during his cross-examination no permission of the court was required for their admission under Order 13 Rule 2 CPC.
8. The plaintiff had invoked the discretion of the court vested by Order 13 Rule 2 CPC for late production of the documents. Order 13 Rules 1 and 2 of the Code of Civil Procedure read as follows:
"Documentary evidence to be produced (at or before the settlement of issues) : (1) The parties or their pleaders shall produce (at or before the settlement of all issues all the 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.
(2) The court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such from as the High Court directs.
2. Effect of non-production of documents:
(1) 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 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 the reasons for so doing.
(2) Nothing in Sub-rule (1) shall apply to documents,-
(a) produced for the cross-examination of the witnesses of the other party, or
(b) handed over to a witness merely to refresh his memory."
9. It is clear from Rule (1) that documentary evidence which is in possession or power of a party, on which the party intended to relay, shall be filed on or before the settlement of the issues. Rule 2 is in two parts. The first part of this rule puts an embargo on the production of the documentary evidence which is in power or possession of any party to the suit which was required to be produced at the time of the filing of the suit or at or before the settlement of issues subsequent to the stage of settlement of issues. The second part mandates recording of the the reasons by the court for allowing the late production of the documents. The provisions of Rules 1 and 2 are unambiguous and clear. Though the provision of Rule 2 vested discretion in the court to permit admission of documents at belated stage of trial but the discretion can be exercised only after the two conditions are satisfied. Firstly, the party has to show good cause to the satisfication of the court for the non-production of the document at or before the settlement of the issues. Secondly, the court before allowing the filing of the documentary evidence has have to record the reasons for allowing late filing of the documents. Like all discretions this discretion also is to be exercised judiciously. Evidently the object of this provision is not to exclude an evidence which is relevant and genuine even at a late stage of trial, on good cause being shown for its delayed production and upon the court recording reasons for its admitting at that belated stage if it advances the cause of justice. The rule has been devised in order to eliminate the possibility of fabrication and forging of evidence by a party taking the opponent by surprise. The rule starts with obstante clause that no documentary evidence will be accepted. Therefore, at the time of admitting the documents at a belated stage the court has to be cautious and admit new documents strictly in accordance with this rule. The application cannot be allowed unless good cause has been shown in the application for not filing the documents at appropriate stage, to the satisfication of the court and without recording reasons for allowing the filing of the documents.
10. In the instant case the suit was filed in 1985. The issues were settled over five years back. The suit is at the stage of recording of evidence. From the application and rejoinder filed by the plaintiff it appears that the plaintiff wanted to file these documents because of some questions put in the cross-examination to the plaintiff PW-1. That cannot be a ground for not filing these documents earlier if they were relevant for the just decision of the case. The court too allowed the filing of the documents on the ground holding that the plaintiff's evidence was in progress and no prejudice would be caused to the defendant. The logic unsubstantial. The documents were admittedly in power, possession and knowledge of the plaintiff. They were neither relied upon nor were produced at the appropriate stage and now they are being filed on the pretext of giving certain clarification on the points which have crept in on account of the questions put to the witness of the plaintiff in the cross-examination. This cannot be a good reason shown by the plaintiff for non-production of these documents at appropriate stage of trial. The court has also not given reasons for allowing it. The discretion has to be exercised by the court judiciously by giving cogent reason which has not been done by the court. The court thus has not exercised the discretion judiciously.
11. This view finds support from the judgment cited on behalf of the petitioner viz., Kartar Singh (supra). O.P. Sanghi (supra), Ashok Kumar (supra) and Ms. Arati Bhargava (supra). There is apparent error in the exercise of jurisdiction, illegality and material irregularity in the exercise of jurisdiction by the learned Additional District Judge which warranted interference by this Court.
12. The result is that the revision petition is allowed. The order dated 21.7.2000 is set aside and the application of the plaintiff for producing documents and witnesses is dismissed. However, there will be no order as to costs.