Punjab-Haryana High Court
Atul Coal Traders vs M/S Jct Ltd. And Ors on 23 September, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CR No.7806 of 2012 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.7806 of 2012 (O&M)
Date of Decision: 23.09.2014
Atul Coal Traders, Moti Nagar,
Lothian ..... Petitioner
Versus
M/S JCT Ltd. G.T. Road,
Hagar and others ... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. M.L. Saggar, Sr. Advocate,
with Mr. Gaurav Grover, Advocate,
for the petitioner.
Mr. Vikas Singh, Advocate,
for the respondents.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
In this order the parties are referred to by their original positions in the suit. Plaintiff has brought this revision against the order dated October 09, 2012 passed by Civil Judge (Junior Division), Ludhiana ordering de-exibition of documents produced by plaintiff's witness No 2 in his examination-in-chief submitted by way of an affidavit as permitted by the amended Code of Civil Procedure, 1908 (for short the 'CPC') .
The plaintiff is a coal dealer in Ludhiana. He supplied coal to the defendant - M/s JCT Limited since 1995 from which dealings has arisen a suit for recovery of Rs.55.63 lacs and odd along with pendente lite and future interest @18% per annum from the date till realization, filed by the plaintiff against defendants M/s JCT Ltd. and its Director/s and MANJU 2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh CR No.7806 of 2012 (O&M) -2- functionaries. There was a current mutual running business account in operation between the parties during the period of their business dealings. The amounts which have remained unpaid by the defendants were alleged to be carried forward from year to year while certain amounts were paid by M/s JCT Limited during the financial year in the passing. The plaintiff requested the defendants to make good the balance payments in 2001 after adjusting the calorific value of the coal supplied by M/s JCT Limited after allowing + - 5% tolerance while making the adjustments. The plaintiff submitted a bill wise claim to the defendants. The defendants paid an amount of Rs.45,978/- on January 14, 2003 and the last stock of coal supplied was against bill dated October 29, 2002 afterwhich the business relationship snapped and the present suit was instituted for recovery of money. The ongoing deals between the parties was based on bills, the originals of which were stated to be with M/s JCT Ltd. and copies thereof with the plaintiff.
The defendants after service of notice of the suit contested the law suit on appearance through their counsel in November 2006. The case was adjourned for filing of the written statement in the third week of December 2006. In between, the defendants filed an application for production of documents. In the reply to the application, the plaintiff pointed out that the bills are in possession of the defendants as well as the reports of calorific value when supplies were made against invoices. It was objected that the application had been filed only to prolong the filing of the written statement and to delay the trial. The trial Court made an order on July 20, 2007 calling upon the defendants to file written statement by MANJU 2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh CR No.7806 of 2012 (O&M) -3- August 21, 2007 observing that the documents were already on record on the basis of which relief of recovery of money was prayed for. The defendants filed their written statement and the issues were framed on July 21, 2008. The evidence started. Jaswant Rai Gupta, proprietor of the plaintiff firm filed an affidavit by way of evidence and appeared as PW-1. Together with the affidavit, he presented documents were sought to be exhibited mentioned as PW-1/1 to PW1/42. The reception of these documents were objected to by the defendants on the ground of want of proper mode of proof and as to their admissibility in evidence but the objections were kept open to be decided at the time of arguments by an order of the predecessor court. PW-1 Jaswant Rai Gupta was cross- examined on May 24, 2012. The defendants thereafter filed an application under Order 7 Rule 14 and Order 7 Rule 17 of the CPC read with Section 164 of the Indian Evidence Act, 1872 praying for de-exhibiting the documents PW-2/1 to PW-2/60 filed by Atul Gupta, PW2 a witness for the plaintiff. This application was filed on August 30, 2012. The trial Court allowed the application of the defendants on October 09, 2012 against which the plaintiff feeling aggrieved has approached this Court contending that the same is illegal, unlawful and suffers from material irregularity and there has been failure to exercise jurisdiction vested in the trial Court.
The trial Court has observed in the order impugned that it is well settled law that on refusal to produce documents, the same cannot be permitted to be led afterwards as evidence. The documents complained of by the defendants could not have been legally exhibited and the plaintiff has exhibited the same wrongly and accordingly, the application was MANJU 2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh CR No.7806 of 2012 (O&M) -4- allowed and documents Exs.PW-2/1 to PW-2/60 in the examination-in- chief of PW-2 Atul Gupta were ordered to be de-exhibited from record.
Mr. M.L. Saggar, learned senior counsel appearing for the plaintiff/petitioner argues that the documents produced by PW-2 could not have been legally ordered to be de-exhibited for the reason that the trial Court had already ordered in the case of PW-1 that the defendants' objection with respect to mode of proof and admissibility would be kept open for decision at the final hearing which stage in the life of the suit is yet to come. There was thus no occasion to de-exhibit the documents produced by PW-2 in his examination-in-chief by changing opinion substantively from the earlier order which has remained final between the parties pendente lite. If the trial Court had ordered the question of mode of proof and admissibility to be deferred for consideration at the time of arguments in the case of PW-1 Jaswant Rai Gupta then there was no occasion to de-exhibit the documents produced by PW-2, Atul Gupta and documents ExsPW-2/1 to PW-2/60 could not be ordered to be de-exhibited when the legal principles were no different. It is contended that Order 7 Rule 14 provides that the plaintiff should produce the documents along with the plaint or a copy thereof. The plaintiff is also required to mention those documents about those which are not in the possession of the plaintiff. It is further urged that the documents can only be produced either by consent or with the permission of the Court. The rule is not to apply to any document to be produced for the cross-examination of a witness called to depose. Rule 17 of Order 7 relates to production of books of accounts the copies of which should be filed and the original is to be seen and MANJU 2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh CR No.7806 of 2012 (O&M) -5- returned by the Court making the comparison authentic record. Moreover, Section 164 of the Indian Evidence Act provides that when a party refuses to produce a document inspite of notice, the party cannot afterwards use the document as evidence without the consent of the other party or order of the Court.
Mr. Saggar refers to Order 7 Rule 1 to point out to the particulars required to be contained in a plaint. Rule 14 of Order 7 deals with production of documents on which plaintiff sues or relies. Rule 17 thereof deals with production of shop-book. Rule 17 refers to the Bankers' Books Evidence Act, 1891, where the document on which the plaintiff sues is an entry in a shop-book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with the copy of the entry on which he relies. Sub-Rule 2 of Rule 17 or Order 7 provides that the original entry to be marked and returned by the Court after comparing the original with a copy and if found correct, certify it to be so after identification.
Section 164 of the Evidence Act has been stoutly relied upon by the defendants and, therefore, needs reproduction for an understanding of the provision and its applicability to the case at hand:-
"164. Using, as evidence, of document, production of which was refused on notice- When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court."
Section 164 of the Evidence Act comes into operation when a party refuses to produce a document of which he had notice under Order 11 Rule 14 of the CPC and on such refusal, he cannot afterwards use such MANJU 2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh CR No.7806 of 2012 (O&M) -6- document/s as evidence without consent or an order of the Court. However, this situation has not arisen in the present case. To appreciate this argument, Order 7 Rule 14 CPC deserves to be read:-
"Rule 14. Production of document on which plaintiff sues or relies.-(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is (3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, 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 document produced for the cross-
examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory."
The exhibition of a document is distinct form relevancy of a document which is a matter of consideration by the Court at the time of arguments. The learned senior counsel for the petitioner submits that the application filed by the defendants was misconceived inasmuch as the dealings between the parties were not disputed or that the supplies of coal were not made. The original bills, invoices and purchase orders of supply of coal would be with the defendants and they could not seriously ask for its production by the plaintiff. The plaintiff has relied upon documents in his possession to prove his case as best as he could.
I have heard both sides at considerable length and have perused the record placed before the Court and my considered view in favour of the plaintiff leans on the following reasons. MANJU 2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh CR No.7806 of 2012 (O&M) -7- The learned Civil Judge (Junior Division), Ludhiana has apparently erred in fact in observing that the plaintiff was specifically called upon to produce various bills, purchase orders, test reports and acknowledgements of balance payments by the defendants and the plaintiff did not produce all these documents, then in these circumstances, it follows sequitur, the plaintiff is debarred from exhibiting his documents as these documents were in the possession of the plaintiff and the same were wilfully not produced by him. The learned trial Court in reaching this conclusion has failed to appreciate the interplay of the various provisions of the Code and the Evidence Act as argued by Mr. Saggar, as above noticed, to which he adds that the plaintiff is an income-tax assessee and has a sales tax number and maintains accounts books in the ordinary course of business which are subject to audit and have been produced before the Sales Tax and Income Tax Authorities every year and from the statement of accounts prepared on the basis of books maintained in due course of business, there is agitated an outstanding amount of money due and payable by the defendants and this factor leans more or less in favour of the plaintiff for a prima facie reliance on the exhibited documents which have been ordered to be de-exhibited by the impugned order. Even the predecessor court did not throw away the documents sought to be exhibited in the cross of the examination of PW-1 and had rightly deferred consideration of the objections of the defendants till the time of arguments and there was no reason not to do the same resulting in the simultaneous operation of two different set of principles with respect to PW-1 and PW-2 creating internal conflict on the judicial file which is not a happy situation. MANJU 2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh CR No.7806 of 2012 (O&M) -8- For this reason as well intervention on the revision side is called for.
I, therefore, do not agree with the submissions of Mr. Vikas Singh, learned counsel appearing for the respondents on his plea based on Section 164 of the Evidence Act since factually it is found that there has been no refusal by the plaintiff in terms of Section 164 to produce the documents. In any case, Section 164 is subject to consent and order of the Court. If the Court has power, then its discretion can well be exercised one way or the other. Mr. Saggar is correct in his submission that there is no absolute bar in Order 7 Rule 14 and Rule 17 of the CPC and Section 164 of the Evidence Act when read together. It was the pointed defence of the plaintiff to the application under Order 7 Rule 14 CPC moved by the defendants that the documents objected to were in possession of the defendants. There was no rebuttal to this defence in as many words for which reason as well and the defendants' application eminently deserves to be declined.
For the foregoing reasons, this petition is accepted and the order dated October 09, 2012 passed by the learned trial court is set aside. It is directed that the directions of the trial court underlying documents tagged and exhibited in the evidence of PW-1 would apply to documents exhibited by PW-2 in his examination-in-chief.
(RAJIV NARAIN RAINA) 23.09.2014 JUDGE manju MANJU 2014.10.07 14:45 I attest to the accuracy and authenticity of this document Chandigarh