Punjab-Haryana High Court
Aggarwal Vidya Pracharni Sabha vs Municipal Corporation Faridabad And ... on 30 September, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
VINOD KUMAR
2014.10.07 15:04
I attest to the accuracy and
authenticity of this document
Chandigarh
CR No.6812 of 2013 [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.6812 of 2013
Date of decision:30.09.2014
Aggarwal Vidya Pracharni Sabha ...Petitioner
Versus
Municipal Corporation Faridabad and another ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Lokesh Sinhal, Advocate,
for the petitioner.
Mr. Rajesh Sheoran, Advocate,
for the respondents.
*****
RAKESH KUMAR JAIN, J.
The petitioner has challenged the order dated 30.08.2013 dismissing an application filed under Order 8 Rule 1A and Order 11 Rule 15 of the Code of Civil Procedure, 1908 (here-in-after referred to as the "CPC") seeking direction to the defendants to produce the Annexures, mentioned in the reply/written statement as attached, though no such copy was attached with the Court file and to delete the unnecessary pleadings from the written statement.
In short, the petitioner filed a suit for declaration that memos dated 22.06.2000, 08.06.2007, 09.05.2008 and 13.05.2008 issued by the defendants-respondents are illegal, null and void and prayed for consequential relief of permanent injunction to restrain them from VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.6812 of 2013 [2] ***** demolition of any portion of the college building of the plaintiff and also for refunding the amount of `25,65,671/- deposited by the plaintiff under protest towards composition charges.
In the written statement, filed on behalf of the respondents/defendant no.1, reference to some documents was made but the copies thereof were not attached. The petitioner filed an application under Order 8 Rule 1A and Order 11 Rule 15 of the CPC, seeking direction to the defendants to produce the documents mentioned in the written statement and also to delete the unnecessary pleadings from the written statement. It is alleged that though, in the written statement some documents were referred to as Annexures as attached but no copy as such was attached with the written statement.
The application was contested by the respondents alleging that necessary documents will be placed on file at the time of evidence.
The learned trial Court dismissed the application vide its order dated 30.08.2013 and hence, the present revision petition has been filed.
Learned counsel for the petitioner has vehemently argued that Order 8 Rule 1A of the CPC clearly provides that if the defendant relies upon any document in his possession or power, he shall enter such document in a list and produce it in the Court when the written statement is presented by him. It is further submitted that even Order 11 Rule 15 of the CPC provides that every party to a suit shall be entitled to give notice to any other party, in whose pleadings or affidavits reference is made of any document or who has entered any document in any list annexed to his VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.6812 of 2013 [3] ***** pleadings, to produce such document for the inspection of the party giving such notice and to permit him to take copies thereof and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he satisfies the Court that such document relates only to his own title or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice. In support of his contention, he has relied upon a decision of the Delhi High Court in the case of F. Hoffmann-La Roche Ltd, Switzerland v. Cipla Ltd., Mumbai Central, Mumbai, 2012 (195) DLT
641. On the other hand, learned counsel for the respondents has submitted that although Order 8 Rule 1A of the CPC provides for entering such documents in a list and its production when the written statement is presented coupled with the delivery of documents and a copy thereof to the other side, but at the same time, Order 8 Rule 1A(3) of the CPC further provides that if there is no compliance of Order 8 Rule 1A of the CPC, the documents can be produced and be received in evidence with the leave of the Court lateron. In support of his submission, he has relied upon a judgment of the Orissa High Court in the case of Sukadev Rout v. Abali Bewa and others, 2007(4) R.C.R. (Civil) 391.
I have heard learned counsel for the parties and examined the record with their able assistance.
Order 8 Rule 1A of the CPC has been inserted by Act No.46 of 1999 w.e.f. 01.07.2002 and reads as under:-
VINOD KUMAR2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.6812 of 2013 [4]
***** "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
plaintiff's witnesses, or
(b) handed over to a witness merely to refresh
his memory."
Order 11 Rule 15 of the CPC, which deals with inspection of documents referred to in the pleadings or affidavits, reads as under:- VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.6812 of 2013 [5]
***** "15. Inspection of documents referred to in pleadings or affidavits.-- Every party to a suit shall be entitled at or before the settlement of issues to give notice to any other party, in whose pleadings or affidavits reference is made to any document or who has entered any document in any list annexed to his pleadings, or produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit."
According to the grievance of the petitioner, the written statement is not accompanied by the documents which are mentioned therein. Order 8 Rule 1A(1) of the CPC provides that the defendant basing his case on any document in his possession or power should enter such document in a list (list of documents) and shall produce it in the Court with the written statement and at the same time deliver the document and a copy VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.6812 of 2013 [6] ***** thereof. Order 8 Rule 1A(2) of the CPC further provides that where any such document is not in possession or power of the defendant, he should, as far as possible, state in the list of documents the person in whose possession or power the said document is. Order 8 Rule 1A(3) of the CPC provides that a document which ought to be produced in the Court by the defendant either under Order 8 Rule 1A(1) or 1A(2) of the CPC, but not so produced, still can be produced and received in evidence on behalf of the defendant at the time of hearing of the suit with the leave of the Court, which means that the defendant cannot voluntarily produce on record such document, which has a reference in his written statement and has not been made a part of the written statement in terms of Order 8 Rule 1A(1) of the CPC except without the leave of the Court. Order 8 Rule 1A(4) of the CPC lays down that the proviso to Order 8 Rule 1A would not apply to such document which are produced by the defendant for the cross-examination of the plaintiff witness or handed over to a witness for the purpose of refreshing his memory. Thus, the discretion has been given to the Court under Order 8 Rule 1A(3) of the CPC to allow the defendant to produce the document in evidence, which ought to have been produced by him with the written statement, if the Court deems it fit.
As regards Order 11 Rule 15 of the CPC, it provides that every party to the suit is entitled to give notice to the other party, either before or at the time of settlement of issues, who had pleaded documents either in his pleadings or affidavit or entered any document in the list of documents which is annexed with the pleadings, to produce those documents for the VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.6812 of 2013 [7] ***** inspection of the party giving notice or the advocate of the party and also to permit that party to take copy of those documents, but if the other party does not comply with the notice given by the party demanding the documents, would not be at liberty to put those documents in evidence afterwards except with the leave of the Court in which he had to satisfy that such document either relates only to his own title being a defendant to the suit or that he had some other cause or excuse which the Court may examine and found whether it is sufficient for not complying with the notice issued by the other party and if the Court is satisfied with the excuses given, it may allow that party to put in evidence that document on such terms which may include costs or otherwise depending upon the decision of the Court.
Thus, this provision also gives discretion to the Court to allow the party not giving the document having reference in the pleadings or in the list of documents, to produce it lateron in evidence, after satisfying the Court with the reason therefor.
As I have already explained that in both under Order 8 Rule 1A (3) and Order 11 Rule 15 of the CPC, the Legislature has provided discretion to the Court to allow to the party to the suit to produce in evidence a document, which though has reference in the pleadings, or list of documents, but copy thereof is not attached, subject to certain terms and conditions, as the Court may deem fit.
Thus, it is not an absolute rule that if the document referred to in the pleadings much-less the written statement is not attached, it cannot be produced in evidence lateron, as suggested by the learned counsel for the VINOD KUMAR 2014.10.07 15:04 I attest to the accuracy and authenticity of this document Chandigarh CR No.6812 of 2013 [8] ***** petitioner. Therefore, the judgment relied upon by him in F. Hoffmann-La Roche Ltd, Switzerland's case (supra) is not applicable to the facts and circumstances of the present case except for the fact that the Court, before accepting the documents in evidence, must record its satisfaction while granting leave to such a party who may be either the plaintiff or the defendant as Order 7 Rule 14 is para materia with Order 8 Rule 1A of the CPC.
As regards the judgment relied upon by learned counsel for the respondents in Sukadev Rout's case (supra), it has been held that Order 8 Rule 1A(3) of the CPC stipulates that if a document, which ought to be produced in the Court, has not been produced, the same shall not be accepted in evidence without leave of the Court. Therefore, the plaintiff cannot compel the defendants to file the document in support, as consequence of non-filing of such document is specified in Order 8 Rule 1A(3) of the CPC which prescribes that if the document is not filed, it would not be received by the Court at the time of hearing of the suit, without the leave of the Court.
In view of the aforesaid discussion, I do not find any merit in the present revision petition and hence, the same is hereby dismissed.
September 30, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE