Andhra HC (Pre-Telangana)
Kancherla Saradha Devi vs Saripella Sivaramaraju And Others on 3 February, 1995
Equivalent citations: AIR1995AP291, 1995(1)ALT556, AIR 1995 ANDHRA PRADESH 291, (1995) 1 LS 238, (1995) 2 CIVILCOURTC 263, (1995) 1 ANDH LT 556, (1995) 1 APLJ 258, (1995) 2 CIVLJ 895, (1995) 2 CURCC 405
ORDER
1. In this revision petition the order of the learned Munsif Magistrate, Mummidivaram in l.A. No. 82/94 in O.S. 206/85 dated 2-3-1994 is challenge. Therein the learned Munsif allowed LA. 82/94 filed under Order.,13, Rule 2 of the C.P.C. and accepted the documents produced by the defendants by condoning the delay in filing the same. The plaintiff is the revision petitioner. Respondents are the defendants.
2. In l.A. 82/94, the defendants sought to produce a document said to be a Xerox copy of an agreement and while producing they explained the delay in producing the same. Defendants 1 to 4 and 6 are brothers while defendant No. 5 is their mother. Defendant No. 2 filed the affidavit in support of the application stating that certain documents were filed earlier, that their uncle one Sari-pella Surapa Raju was looking after the affairs after the death of their father and he was having the custody of all the documents, that he also suddenly died in January, 1992 and therefore, the original documents despite thorough search could not be found, that their advocate had some photostat copies of the documents and therefore, they obtained a photostat copy of the document and produced it in court. The application was opposed by the plaintiff by filing a counter affidavit denying all the allegations made in the petition and further contending that the application is not bona fide, and belated. The learned Munsif while accepting the cause given in the affidavit for the late production of the document pointed out that since the document is a photostat copy, it could be used as secondary evidence at the time of enquiry to consider its evidentiary value. Thus the plaintiff who is aggrieved by such an order filed this revision petition challenging the said order.
3. The learned advocate appearing on behalf of Mr. Poorniah, learned Advocate for the petitioner has raised several contentions in challenging the impugned order. In the first place, the order of the learned Munsif is said to be beyond the scope of Order 13, Rule 2 of C.P.C. Secondly, it is contended that on the facts presented by the defendants denied by the plaintiff, the learned Munsif ought not to have accepted the reasons given for presenting the document late. Thirdly, it is contended that the learned Munsif exceeded the implication of the provisions by saying that the document can be used as secondary evidence.
4. The first contention cannot be accepted. The defendants have given some cogent and convincing reasons as to why they could not produce the document before the court except along with the application. Their uncle Mr. Saripella Surapa Raju was assisting them in the litigation and the documents were in his custody only and that he also died. Though they searched for the documents in the housf of their uncle, the original documents could not be traced and the Xerox copy which was available with their advocate was brought and produced. Although such reasons were denied in the counter affidavit filed by the plaintiff, such facts being within the special means of knowledge of the defendants who were the best persons to say, could not have been disbelieved unless there was an independent enquiry by some source which the plaintiff appears to have not done. On the face of it, the reasons given were neither absurd -nor capricious. Such instances in the experience of human beings are neither improbable nor strange. There were no mala fides on the part of the defendants in producing the document. The finding of fact regarding the sufficiency of the reasons for the delay in production of the document recorded by the learned Munsif does not warrant any interference by this court in this revision. In fact, condoning the delay in producing a document lately, is not beyond the scope of Order 13, Rule 2 of C.P.C. Even regarding the second point, there is no merit for the same reasons.
5. The third contention appears to have someforce. Under Order 13, Rule2of C.P.C. the court is only concerned with examining whether good cause is shown to the satisfaction of the court by the party for the nomination thereof in accordance with Order 13, Rule 1 of C.P.C. to escape the prohibition in the first part of Order 13, Rule 2 of C.P.C. The whole implication and the object of the provision is to prevent parties from producing documents after a particular stage or to explain the cause for delay if any in producing the documents. The whole gamut of the provision concerns the mere production of the documents and not as evidence or proof of any fact. The learned Munsif white allowing the production of the document, has stated that such acopy of the document can be taken as secondary evidence as the document can be looked into at the time of enquiry with regard to its evidentiary value. This is clearly beyond the scope of Order 13, Rule 2 of C.P.C. because when the document is-tendered for evidence at the relevant time, the adversary will be entitled to oppose the admissibility of the document on various grounds including as the primary evidence or secondary evidence etc., etc., etc. Thereby, the learned Munsif has traversed beyond the scope of the law under Order 13, Rule 2 of C.P.C. and to that extent the order is bad.
6. Mr. Lakshmana Sarma, the learned Advocate for the respondents has fortified himself with a precedent of the Supreme Court in Billa Jagan Mohan Reddy v. Billa Sanjeeva Reddy, . That matter arose out of an order passed under Order 13, Rule 2 of C.P.C. in a Land Acquisition proceedings under Section 30 of the Land Acquisition Act. While dealing with such an implication, the Supreme Court has pointed out as follows:
"It is clear from its bare reading that the parties or their counsel shall be required to produce all the documentary evidence in their possession or power which they intend to rely on to establish their right along with pleadings or before settlement of the issues. The Court is enjoined under sub-rule (2) to receive such documents provided they are accompanied by an accurate list thereof prepared in the prescribed form. If they are not in the party's possession or custody, it shall be filed by the party along with an application to condone the delay in filing them. The explanation for delay is not as rigorous as one filed under Section 5 of the Limitation Act. These documents were not in the possession or custody of the appellants, but they have obtained certified copies from the revenue authorities and sought to be produced. It is undoubted that there is a delay in production of the said documents. But the trial Court bad stated that the application was filed at.the stage of arguments, seeking to produce those documents and sought to rely upon the documents. It is settled law that if the documents are found to be relevant to decide the real issue in the controversy, and when the Court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27, C.P.C. the appellate court would receive the documents and consider their effect thereof. When such is the position, when the documents are sought to be produced in the trial Court, before the arguments are completed, normally theymay be received; an opportunity given to prove them and rebuttal if any and their relevance and effect may have, be considered in deciding the issues arose in the controversy."
Therefore, by applying the principles laid down above, it was a fit case to allow the application by the trial Court. The learned Advocate for the petitioner has pointed out that the affidavit filed on behalf of the defendants is bald in regard to the details of the document and also the relevancy of the document. To that extent the materials before the Court were not in a manner to guide the court so as to give a finding about the relevancy of the document. Even then, when there is no material to put it negatively that the document was not relevant, we can presume that it was for the party to demonstrate that it was relevant at the time of admitting the document. Therefore, the order of the learned Munsif cannot be said to be beyond the scope of Order 13, Rule 2 of C.P.C.
7. In addition to the legal implication stated above, this court feels that they may be further amplified. In the nature of the true implication of Order 13, Rules 1 and 2 of C.P.C. the word 'shall' used therein may be difficult to be read as mandatory. In the Code of Civil Procedure there are various stages at which documents can be produced for the perusal of the Court and for various other purposes. The illustrations are Order 7, R. 14, Order 13 Rule 2, Order 41 Rule 27 and Order 13 Rule 2(2)(a) and (b) of C.P.C. Therefore, the mere production of document at any stage may be only regulatory and not mandatory. In order to serve the ends of justice, the production of document may be accepted by the court by condoning the delay in producing the same, depending upon the facts' and circumstances of each case subject to production of the same by way of evidence at the relevant time. Mere production of the document will not normally prejudice the adversary unless it is established that the . party intending to produce the document did it only to protract the litigation or to burden the record to confuse the issues or to subserve any ulterior motive within the knowledge of the parties. Particularly when the document can be produced by the party for the cross-examination of the witnesses of the other party or handover to a witness merely to refresh his memory by virtue of Order 13, Rule 2(2)(a) and (b) of C.P.C., it indicates that the mere production of the document at any stage either prevented or permitted can never be of serious justiciable intent. Perhaps the law must have intended to enforce the discipline on the part of the parties to regulate the proceedings expeditiously and properly and not to give opportunity to cook-up documents. Thus the words 'sufficient cause' in the provision should be very liberally construed to serve the order of justice. The earlier production of the documents will ensure its genuineness, its reliability and the evidentiary value. Subject to these limitations and the safeguards provided in the provisions, Order 13, Rule 2 of C.P.C. cannot be termed as a mandatory one in that sense.
8. Even assuming that the whole order ol the learned Munsif has violated certain implications of Order 13, Rule 2 of C.P.C. this Court feels that such cases and in particulai the present case, cannot be revised. undei Section 115 of C.P.C. unless there are compelling reasons to bring it within the strici implications of the provision. The proviso tc Section 115 of C.P.C. reads as follows:
"Provided that the High Court shall not under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where-
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would ccasion a failure of justice or cause irreparable injury to the party against whom it was made."
(Emphasis suppied) The relevant provision is sub-clause (b) supra. Unless the court feels that such an order would occasion failure of justice or cause irreparable injury to party against whonVt was made, it cannot be interfered with the High Court under Section 115 of C.P.C. No such plea is found either in the counter affidavit filed by the plaintiff muchless such a ground is set up or proved in this revision petition. Merely allowing a party to produce a document may not result in violation of justice as the real justice will be meted out when the document is received in evidence in accordance with the provisions of the Evidence Act. There cannot be any prejudice to the petitioners by merely allowing the producing of the document, since the plaintiff has an opportunity to prevent the use of the document as an evidence on any ground including it being the secondary evidence, being a copy of the document subject to the provisions of the Evidence Act. Therefore, even on this count this court is unable to interfere with the order of the learned Munsif.
9. With all that, it is still necessary to examine whether such an order could be passed without imposing any liability on the defendants like mulcting in costs or otherwise. Because every objection or counter affidavit or application of mind involves some amount of costs and waste of energy. That should be suitably compensated in costs. That is how even assuming that such an order has put the other side to inconvenience, it cannot be irreparable as it can be compensated by mulcting the other side with costs. The suit is of the.year 1985. The application under Order 13 Rule 2 of C.P.C. was filed in the year 1994. The application was totally belated. During the passage of almost a decade, the litigation must have taken various shapes and moved to various stages by putting the plaintiff to certain advantages and by filing such an application, the plaintiff had go (to) again reapply his mind to meet such a situation. Hence it was a fit case to award some costs and this court feels Rs. 50/- would be sufficient costs.
10. In the result, the petition is dismissed. However, the respondents namely the defendants in the trial court will not get the benefit of the order of the trial court on I.A. No. 82/94 unless they pay or deposit Rs. 50/- by way of costs to be paid to the plaintiff within two weeks from today. The petition is thus disposed of in these terms.
11. Petition dismissed.