M/S. Kavur Up Building Pvt. Ltd vs Gurmeet Kaur Sethi & Anr on 18 September, 2018

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Gauhati High Court

M/S. Kavur Up Building Pvt. Ltd vs Gurmeet Kaur Sethi & Anr on 18 September, 2018

Bench: Kalyan Rai Surana

                      THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)


                        CRP No. 65 OF 2017

                      M/s Kavur Up Building Pvt. Ltd.
                                                              ... Petitioner

                          -Versus-

                      Smt. Gurmeet Kaur Sethi and another

                                                              ..Respondents

BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the petitioner : Mr. KM Haloi, Mr. AK Deka, Mr. I. Das, Advocates.


For the respondents         :        Mr. MK Jain, Advocate for resp.No.2

Date of hearing &
judgment                    :        18.09.2017


                        JUDGMENT AND ORDER

Heard Mr. KM Haloi, the learned counsel for the petitioner and Mr. MK Jain, the learned counsel for the respondent No.2.

2) By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 17.01.1017 passed by the learned Civil Judge No.2, Kamrup (M), Guwahati in Money Suit No.13/2014.

3) The plaintiff-petitioner is the defendant No.2 in the suit. The suit was filed by the respondent No.1 against the respondent No.2 (defendant No.1) and the petitioner (defendant No.2) for realization CRP No.65/2017 Page 1 of 4 of Rs.24,25,944/- against supply of materials from time to time. The principal claim amount of the respondent No.2 herein is Rs.13,18,448/- and the balance is interest thereon. The petitioner has contested the suit by denying the claim, further claiming that the demand made by the respondent No.2/plaintiff is not based on any document showing liability. In course of the proceeding, the respondent No.2/plaintiff filed an application under Order XII Rule 8 CPC with a prayer for direction to the defendant to produce the original documents mentioned in the notice under Order XII Rule 8 CPC. The respondent No.2 herein filed their written objection, wherein it was stated that the documents mentioned in the notice were the documents of plaintiff and there was no basis to ask the defendant to produce the same. It was also stated that since the plaintiff was not having proof of delivery of materials, and all the documents were in her custody, therefore, to avoid submission of original documents in her possession, the petitioner has resorted to this strategy and filed a frivolous petition.

4) By the order dated 17.01.2017 impugned herein, the learned trial court directed the defendant to produce the documents on or before the next date. It was clarified as follows:

"Be it mentioned herein that the documents sought to be produced need not be admissible in evidence in the suit proceedings and it is sufficient that the documents would be relevant for the purpose of throwing light on the matter in controversy."

The next date of the suit was fixed for plaintiff's evidence/production of documents.

CRP No.65/2017 Page 2 of 4

5) Challenging the said order, the learned counsel for the petitioner submits that the order was vague without mentioning as to which of the two defendants had the custody of the documents and was required to produce it. It is submitted that all the documents mentioned in the notice at Sl. No.1 to 175 are the bills, challans, invoices, consignment notice, supply orders, emails and legal notice, which were all with the plaintiff and the plaintiff could prove the said record or lead secondary evidence thereon.

6) Opposing the application, it is submitted by the learned counsel for the respondents that it is only when the originals are not produced, the plaintiff can lead secondary evidence and not otherwise. It is also submitted that the plaintiff had sold the goods, therefore, it is imperative that all the original bills, challans, invoices etc. would accompany the goods and cannot be with the seller and moreover, the learned trial court had made it clear that the documents produced need not be admissible in evidence and therefore, no prejudice can be caused to defendants including the defendant No.2.

7) Considered the rival submissions made by the both sides. This Court is of the view that an application under Order XII Rule 8 CPC is a part of the procedural law, therefore, if the present petitioner does not have the documents directed to be produced, the petitioner can inform to the court that the documents were not available with them. It is only thereafter that the plaintiff in this case would get a chance to prove their documents in accordance with law. Therefore, a mere omission in the order mentioning as to which of the two defendants to produce documents, no prejudice is caused to the petitioner herein.

CRP No.65/2017 Page 3 of 4

8) Therefore, this Court is not inclined to interfere with the discretion exercised by the learned trial court, if the petitioner is aggrieved by the order impugned, the petitioner may take this issue as a ground of appeal, if so advised.

9) Consequently, this application stands dismissed. Parties are left to bear their own costs.

JUDGE MKS CRP No.65/2017 Page 4 of 4

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