Gujarat High Court
Tata Chemicals Limited vs Gujarat State Fertilizer And Chemicals ... on 31 July, 2024
NEUTRAL CITATION
C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14807 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 3981 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 12440 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
TATA CHEMICALS LIMITED
Versus
GUJARAT STATE FERTILIZER AND CHEMICALS LTD
==========================================================
Appearance:
SCA 14807/2015
MR KM PATEL, SR. ADVOCATE for MR.VARUN K.PATEL(3802) for the
Petitioner(s) No. 1
MR MR BHATT. SR. ADVOCATE with MR RAHEEL S PATEL for the
Respondent(s) No. 1
SCA 3981/2013
MR MR BHATT. SR. ADVOCATE with MR RAHEEL S PATEL for the
Petitioner
MR RS SANJANWALA, SR. ADVOCATE with MR DILIP KANOJIYA & MR
AADIT SANJANWALA for the Respondent
SCA 12440/2018
MR GAURAV MATHUR for the Petitioner(s) No. 1
MR MR BHATT. SR. ADVOCATE with MR RAHEEL S PATEL for the
Respondent(s) No. 1
Page 1 of 20
Downloaded on : Wed Jul 31 21:34:38 IST 2024
NEUTRAL CITATION
C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024
undefined
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 31/07/2024
CAV JUDGMENT
1. Since all the petitions are on similar facts and involved identical questions of law, with the consent of learned advocates appearing for the parties, they are being disposed of by this common judgment.
2. Special Civil Application No.14807 of 2015 under Article 227 of the Constitution of India is filed against the impugned order dated 12.8.2015, whereby the learned 3 rd Additional Senior Civil Judge, Vadodara has allowed application Exh.234 filed by the respondent - Gujarat State Fertilizer & Chemical Ltd. (in short "the GSFC") in Special Civil Suit No.272 of 1976 by permitting the respondent to produce document, as prayed for, in the application at the fag end of the civil suit.
2.1 Special Civil Application No.3981 of 2013 under Article 227 of the Constitution of India is filed against the impugned order dated 7.1.2013, whereby the learned Principal Senior Civil Judge, Vadodara has rejected the application Exh.247 filed by the petitioner - GSFC preferred for seeking permission to produce certain documents on record of Special Civil Suit No.107 of 1976.
2.2 Special Civil Application No.12440 of 2018 under Article Page 2 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined 227 of the Constitution of India is filed against the impugned order dated 6.11.2017, whereby the learned 2 nd Additional Senior Civil Judge, Vadodara has allowed application Exh.1163 filed by the respondent - GSFC in Special Civil Suit No.318 of 1975 to reopen the stage of evidence.
3. Brief facts of the case are as under:-
3.1 Special Civil Suit No.272 of 1976 is filed by the petitioner
- Tata Chemicals against the GSFC before the learned trial Court, Vadodara for recovery of Rs.1,09,28,022/- being the excess amount recovered by the GSFC from the petitioner -
Tata Chemicals for supply of liquid ammonia during the period from the May 1970 to October, 1975. The said amount was taken up by the GSFC on false pretext of excess duty levied on Neptha being core material in producing Ammonia. That after 35 years of filing of the suit, the GSFC has filed application Exh.234 on 23.3.2012 seeking permission to produce documents, as prayed for in the application, in the said suit. The learned trial Court allowed said application. Therefore, petitioner - Tata Chemicals Ltd. filed Special Civil Application No.14807 of 2015.
3.2 Special Civil Suit No.107 of 21976 is filed by the respondent M/s Dhrangadhra Chemical Works Limited before the learned trial Court, Vadodara praying rebate of excise duty amounting to Rs.36,94,415.55 paisa from the GSFC. The said amount was taken up by the GSFC on false pretext of excess duty levied on Neptha being core material in producing Page 3 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined Ammonia. That the GSFC filed application Exh.247 before the learned trial Court, Vadodara seeking permission to produce certain documents on record of Special Civil Suit No.107 of 1976, which was rejected. Therefore, GSFC filed Special Civil Application No.3981 of 2013.
3.3 Special Civil Suit No.318 of 1975 is filed by the petitioner
- Saurashtra Chemicals against the GSFC before the learned trial Court, Vadodara for recovery of Rs.95,04,487.05 paisa being the excess amount charged by the GSFC from the petitioner - Saurashtra Chemicals for supply of liquid ammonia. The said amount was taken up by the GSFC on false pretext of excess duty levied on Neptha being core material in producing Ammonia. That GSFC filed application Exh.1163 before the learned trial Court on 22.1.2023 to reopen its stage of evidence. The learned trial Court allowed said application. Hence, petitioner Saurashtra Chemicals has filed Special Civil Application No.12440 of 2018.
4. The main thrust of the argument of Learned Senior Counsel Mr.KM Patel along with learned advocate Mr. Varun Patel as well as learned counsel Mr. Gaurav Mathur as far as Special Civil Application Nos.14807 of 2015 and 12440 of 2018 is concerned, the learned Courts below have committed serious, but gross error in allowing production of document at the fag end of the suit. It is sought to be submitted that the proceedings of the suit, which commenced many years back, is now at the stage of final argument. The GSFC have had ample opportunity at various stage of the suit to produce document, Page 4 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined which intended and succeeded in producing the documents at the fag end of the suit. They would submit that since the evidence is recorded in the matters and as the suits are at the fag end of hearing, the person, who is seeking to produce evidence, has to show some exceptional circumstances, but in the present case, the GSFC failed to show cause the exceptional circumstances. It is sought to be submitted that the documents, which the GSFC intended to produce, are in their possession since more than many years; some of the documents are belonging to the year 1974, 1975, 1976 and as such, they are more than 20 years old documents, which could be produced by the GSFC along with its written statement, but the GSFC has filed to produce those documents at the relevant time and as such now, cannot be permitted to produce at the fag end of the suit.
4.1 It is also sought to be submitted that the suits of the chemical companies are filed in regard to recovery of money, which the GSFC has taken under the garb of excise duty levied on neptha. It is sought to be submitted that the documents, which the GSFC intended to produce are the documents related to the proceedings undertaken by the GSFC along with Central Excise Department and therefore, those documents were well within the knowledge and possession of the GSFC since beginning. Yet, on superficial reason, the GSFC intended and succeeded to produce the documents at the fag end of the suit, which seriously prejudiced the case of the plaintiff.
4.2 It is sought to be submitted that, in written statement, the Page 5 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined GSFC has brazenly said that they are not required to produce those documents, but contrary to the written statement, the GSFC has now intended to produce the documents. The learned trial Court has fallen in serious error in allowing the production of the documents at the fag end of the suit.
4.3 It is sought to be submitted that in civil proceedings, principle of due diligence is always attracted. The proceedings are taken at the belated stage and not on the stage when it is fixed in the CPC.
4.4 Also, it is submitted that in the present case, the GSFC has failed to show any due diligence and yet, the learned trial Court has allowed the production of documents at the fag end of the suit and therefore, it is submitted that Special Civil Application Nos.14807 of 2015 and 12440 of 2018 may be allowed and the impugned order may be quashed and set aside. It is sought to be submitted that the learned trial Court has not given any reason much less satisfactory reasons, which could be attributed to the phrase "due diligence". In nutshell, it is argued that the learned trial Court has committed serious, but gross error in allowing production of the documents at the belated stage.
4.5 Learned Senior Counsel Mr. KM Patel relied upon following judgments in support of his arguments.
1. in case of Kirpal Chand and others Vs. Skipper Construction Co. Pvt. Reported in 2002 VAD Delhi 252 Page 6 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined (Delhi High Court)
2. Kishan Chand Vs. Pankaj Abbani rendered in SB Civil Writ Petition NO.4951 of 2008 (Rajasthan High Court)
3. LIC of India Vs. Sanjeev Builders Private Ltd. reported in AIR 2022 SC 4256
4. Atom Technologies Limited Vs. Y.A. Chunawala and Co and others reported in 2018(7) Scale 35
5. Future Scraps Infra Vs. Ankurbhai Arunrao Pavle reported in 2023 JX (Guj) 284
5. In addition to above arguments, learned counsel Mr. Gaurav Mathur submitted that the GSFC has filed application for production of the documents, but not produced it, with liberty to file the same after obtaining certified copy of the documents produced in another suit, but even in another suit, only certified copies of the documents were produced. In these facts and circumstances, production of documents for which once application was not presented, cannot be permitted.
5.1 Learned counsel Mr. Gaurav Mathur also relied upon following authorities to buttress his submission.
1.Shivshankara and another Vs. HP Vedavyasa Char reported in AIR 2023 SC 1780
2.Kuljit Singh Vs. Gurmeet Singh reported in 2017 SCC Online 6427 (P & H)
3.Sompura Arunkumar Prabhashankar Vs. Heirs of Sompura Kumudben @ Kamuben Pitambar rendered Page 7 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined by this Court in Special Civil Application No.11562 of 2018 6 While arguing in the line of Learned Senior Counsel Mr. KM Patel and learned counsel Mr. Gaurav Mathur, learned Senior Counsel Mr. RS Sanjanwala, who argued in Special Civil Application No.3981 of 2013, supports the impugned order. He would further submit that the learned trial Court has committed no serious error in rejecting the application for production of documents at the belated but the last stage of the suit. He would further submit that the learned trial Court has rightly considered the issue in its true and legal perspective and as such, no interference is called out under the limited jurisdiction of Article 227 of the Constitution of India, as no culpable error has taken place at the hand of the learned Courts below.
6.1 One more argument was canvassed by Learned Senior Counsel Mr. Sanjanwala that principle of Comity has not been observed by the learned trial Court. One of the order for non- production of the document was arrived on 7.1.2013, whereas, two other orders allowing production of documents was arrived subsequently. The principle of Comity expects that the Court should respect first order passed by the Coordinate Bench when identical fact situation is involved in the matter.
6.2 Upon above submissions, Learned Senior Counsel Mr. Sanjanwala prays to dismiss Special Civil Application No.3981 of 2013.
Page 8 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined
7. On the other hand, Learned Senior Counsel Mr. Manish Bhatt in his brief submission would submit that the GSFC has preferred application under Order 8 Rule 1A(3) of the CPC. He would further submit that the procedural law are the handmaid to the substantial justice. He would further submit that the GSFC has given two reasons for allowing production of documents at subsequent stage; firstly the documents were not traceable, as the file containing those documents was not found and secondly, the documents are not new to the case of the plaintiffs - chemical companies and that they are very much relevant to the decision of the suits. He would further submit that production of such documents would not change the case of the defendant nor it will prejudice in any way to the case of the plaintiff and rather, it will throw clarity on the disputed issue between the parties, which could allow the Court to pass necessary order in given facts and circumstances. Therefore, he would submit that as far as Special Civil Application Nos.14807 of 2015 and 12440 of 2018 is concerned, the learned trial Court has not committed any error much less an error of understanding the facts or law in allowing production of the documents. As regards Special Civil Application No.3981 of 2013, whereby the learned trial Court rejected application Exh.247 preferred by the GSFC in Special Civil Suit No.107 of 1976 is cocerned, the learned trial Court has committed serious error while rejecting production of the documents. He would further submit that the learned trial Court has failed to understand Order 8 Rule 1A of the CPC, which is amended by Act of 46 of 1999, more particularly, sub rule (3) of Rule 1A of Order 8, which is inserted by Act of 22 of 2002, where a party, Page 9 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined who has failed to produce documents at the earlier stage of the proceedings, can produce the same with the leave of the Court. He would further submit that when technical consideration is pitted with substantial justice, the later one will prevail over the technical consideration.
7.1 Learned Senior Counsel Mr. Bhatt would also submit that in the present case, as far as rejection of application Exh.247 is concerned, the learned trial Court has committed serious error and therefore, he requests to dismiss Special Civil Application No.14807 of 2015 and Special Civil Application No.12440 of 2018 and to allow Special Civil Application No.3981 of 2013. Learned Senior Counsel Mr. Bhatt has relied upon following authorities.
1. KK Veluswamy Vs. N. Palanisamy reported in (2011) 11 SCC 275
2. Sugandhi (dead) by Lrs. And Anr Vs. P.Rajkumar Rep.By His Power Agent Imam Oli reported in 2020(10) SCC 706
3. Levaku Pedda Reddamma and others Vs. Gottumukkala Venakata Subbamma and another reported in 2022 LiveLaw (SC) 533
4. Gujarat Industrial Investment Co. Ltd. Vs. Lalitaben Govindbhai Patel reported in 2012 SCC Online Guj 4777.
8. Regard being held to the rival submissions made by learned counsel for both the parties, it is apt to note that in un- amended CPC, the provision pertaining to the production of Page 10 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined documents by a party on their own volition were contained in Order 14 Rule 7, Rule 17 Order 7, Rule 1A Order 8, Rule 1 Order 13, proviso to sub rule 1 of Rule 4 Order 14 and Order 41 Rule 31 of the CPC. After the amendment, Act of 1999 and 2002 in the CPC. The relevant provisions for production of the documents are Order 7 Rule 14, Order 8 Rule 1A, Order 13 Rule 1, Order 18 Rule 4 and order 41 Rule 27 and they remain in force. In the present case, we are concerned with Order 8 Rule 1A of the CPC, as the defendants have sought to produce documents relying upon said provision, which reads as under:-
"008 ORDER VIII-WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM RULE 1A : Duty of defendant to produce documents upon which relief is claimed or relied upon by him 2 (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 [(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-
Page 11 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory.]
9. As per sub rule 1 of Rule 1A of Order 8, the defendant bases his defence upon a document has to enter such document in a list, and shall produce it in Court when the written statement is presented by him. Where any such document is not in the possession or power of the defendant, as far as possible, he shall state in whose possession or power it is. Sub rule 3 states that 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. Thus, if the document is found to be relevant to the decision in the case or the defendant shows bona fide for not producing the document at the relevant stage, with the leave of the Court, it can be produced at subsequent stage or the at the time of hearing of the suit. At earlier point of time in CPC, there had been specific provision in Order 18 Rule 17A, which provides for production of evidence not previously known or which could not have been produced despite due diligence and was permitting the Court to take such evidence at a later stage, but that provision is deleted w.e.f. 1.7.2022.
10. The entire issue has come to the scrutiny before the Hon'ble Apex Court in case of KK Veluswamy (supra). Taking aid of section 151 of the CPC, the Hon'ble Apex Court allowed production of the documents. Relevant paras are para 13 to 16, which reads as under:-
Page 12 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined "13. The Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a late stage, after the conclusion of his evidence if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence.
That provision was deleted with effect from 1.7.2002. The deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence.
14 The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.
15. The learned counsel for respondent contended that once arguments are commenced, there could be no re- opening of evidence or recalling of any witness. This contention is raised by extending the convention that Page 13 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined once arguments are concluded and the case is reserved for judgment, the court will not entertain any interlocutory application for any kind of relief. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. If there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extra-ordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognized with reference to exercise of power under section 151 of the Code. Be that as it may. In this case, the applications were made before the conclusion of the arguments.
16. Neither the trial court nor the High court considered the question whether it was a fit case for exercise of discretion under section 151 or Order 18 Rule 17 of the Code. They have not considered whether the evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to a just and effective adjudication. Both the courts have mechanically dismissed the application only on the ground that the matter was already at the stage of final arguments and the application would have the effect of delaying the proceedings."
11. Recently, in case of Levaku Pedda Reddamma (supra), the Hon'ble Apex Court in regard to production of document at a later stage under Order 8 Rule 1A of the CPC, has observed as under:-
"The defendant Nos. 2 to 5 are in appeal aggrieved against the order passed by the High Court affirming Page 14 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined the order passed by the trial Court refusing to permit the appellant to produce additional documents in terms of Order VIII Rule 1 of the Code of Civil Procedure, 1908.
We find that the trial Court as well as the High Court have gravely erred in law in not permitting the defendants to produce documents, the relevance of which can be examined by the trial Court on the basis of the evidence to be led, but to deprive a party to the suit not to file documents even if there is some delay will lead to denial of justice.
It is well settled that rules of procedure are hand-maid of justice and, therefore, even if there is some delay, the trial Court should have imposed some costs rather than to decline the production of the documents itself.. Consequently, the appeal is allowed. The orders passed by the trial Court and the High Court are set aside. The appellants - defendant Nos.2 to 5 are permitted to file the documents and to prove the same in accordance with law. "
12. In case of Sugandhi (dead) by Lrs. (supra), the Hon'ble Apex Court, in para 7 to 10 again scrutinized the issue and held followings:-
"7. Rule 1A of Order 8 of C.P.C. provides the procedure for production of documents by the defendant which is as under:
"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 setoff or counterclaim, 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 Page 15 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined 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 document-
(a) produced for the crossexamination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory."
Subrule (1) mandates the defendant to produce the documents in his possession before the court and file the same along with his written statement. He must list out the documents which are in his possession or power as well as those which are not. In case the defendant does not file any document or copy thereof along with his written statement, such a document shall not be allowed to be received in evidence on behalf of the defendant at the hearing of the suit. However, this will not apply to a document produced for crossexamination of the plaintiff's witnesses or handed over to a witness merely to refresh his memory. Subrule (3) states that a document which is not produced at the time of filing of the written statement, shall not be received in evidence except with the leave of the court. Rule (1) of Order 13 of C.P.C. again makes it mandatory for the parties to produce their original documents before settlement of issues.
8. Subrule (3), as quoted above, provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court. The discretion conferred upon the court to grant such leave is to be exercised judiciously. While there is no straight jacket formula, this leave can be granted by the court on a good cause being shown by the Page 16 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined defendant.
9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under subrule (3).
10. Coming to the present case, the defendants have filed an application assigning cogent reasons for not producing the documents along with the written statement. They have stated that these documents were missing and were only traced at a later stage. It cannot be disputed that these documents are necessary for arriving at a just decision in the suit. We are of the view that the courts below ought to have granted leave to produce these documents.
13. Notwithstanding the rival dispute between the parties, the fact remains that the plaintiffs filed the suit for recovery of the amount, which according to them, is paid excess to the GSFC on the count that excise duty levied on neptha being raw material to produce liquid ammonia. Thus, the issue of levy of excise duty on neptha is in pleading since the beginning and is nucleus of the plaintiff's claim. The defendants taking resort to the contract between the parties submitted in defence that the price fixed is exclusive of the excess duty and therefore, charging excise duty on neptha had lead to higher price of liquid ammonia. No excess amount is charged from chemical company. In juxtaposition of Page 17 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined rival claim, what could be discerned that the proceedings taken by the GSFC that excise duty applied to neptha is known to both the parties and it could be noticed on plain reading of pleading and evidence of both the parties. Thus, the document which the GSFC intended to produce and succeeded in producing the documents at the fag end of the suit was never new document, by which the plaintiffs companies have been taken by surprise. Both the parties have led evidence in this regard.
14. One of the limb of argument was that if the production of the document would be permitted, it would restart the trial. This submission has no legs to stand. The document which the GSFC intended to produce or has successfully produced in some cases, as observed herein above, were known to the parties since the beginning of the plaint. Even, evidence to that effect is also lead.
15. The test of relevancy, which is the pioneer in production of the document is also reside with the GSFC or are rather aligned with the cause of action stated in the plaint. These documents which are certified copies of the proceedings and orders taken by the GSFC against the Central Excise are core to the dispute between the parties and they are required document to arrive at just decision.
16. To be noted that the Court is clothed with the power to allow production of additional evidence even at the appellate stage provided that such documentary evidence is necessary to enable the Court to pronounce the judgment. The production of the additional evidence under Order 41 Rule 27 of the CPC is Page 18 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024 NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined permissible even at the appellate stage. Thus, relevancy of document, which intended to be produced is at core or cynosure
17. According to this Court, the document, which the GSFC sought to produce or already produced in some civil cases are relevant and would enable the Court to pronounce the judgment. What also could be noticed from the documents which the GSFC intended to produce or successfully produced in some of the cases are orders of the High Court and the Excise Tribunal on the proof that the GSFC has paid excise duty demanded by the excise department. Thus, they are relevant as observed earlier. The test of bona fide also preface in favour of the GSFC. In para 8 of the petition, the GSFC submitted that the documents, which are very old one and certified copies were not available as the files were with the employee, who had left the service of organization. In view of above, this Court finds substance in the plea of the GSFC to allow it to produce documents. Consequent thereto, this Court does not find any infirmity in the order passed below Exh.234 in Special Civil Suit No.272 of 1976 and order passed below Exh.1163 in Special Civil Suit No.318 of 1975 and as such, Special Civil Applications challenging those orders being Special Civil Application Nos.14807 of 2015 and 12440 of 2018 respectively fail. As far as order passed below Exh.247 in Special Civil Suit No.107 of 1976, whereby production of document is denied, this Court finds that serious, but jurisdictional error has been committed by the learned Court below and therefore, that order has to go and as such, Special Civil Application No.3981 of 2013 challenging said order succeeds.
Page 19 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024NEUTRAL CITATION C/SCA/14807/2015 CAV JUDGMENT DATED: 31/07/2024 undefined
18. Considering the above fact situation, the authorities relied upon by Learned Senior Counsel Mr. KM Patel as well as learned counsel Mr. Gaurav Mathur have rendered no assistance to the petitioner of Special Civil Application Nos.14807 of 2015 and 12440 of 2018.
19. For the foregoing reasons, Special Civil Application Nos.14807 of 2015 and 12440 of 2018 fail and stand dismissed. Interim relief, if any, granted earlier stands vacated.
20. Special Civil Application No.3981 of 2013 is allowed and impugned order dated 7.1.2013 passed by the learned Principal Senior Civil Judge, Vadodara below application Exh.247 in Special Civil Suit No.107 of 1976 is hereby quashed and set aside. Production at the instance of the GSFC in Special Civil Suit No.107 of 1976 is allowed by allowing Exh.247.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 20 of 20 Downloaded on : Wed Jul 31 21:34:38 IST 2024