Andhra HC (Pre-Telangana)
Bada Bodaiah And Anr. vs Bada Lingaswamy And Ors. on 13 November, 2002
Equivalent citations: 2003(1)ALD790, 2003 A I H C 1285, (2003) 1 ANDHWR 131, (2003) 1 ANDHLD 790, (2003) 2 ICC 228, (2003) 2 INDLD 476, (2003) 5 ALLINDCAS 616 (AP)
ORDER V.V.S. Rao, J.
1. The Civil Revision Petition is filed against an order dated 4.7.2002 made in LA. No. 548 of 2000 in O.S. No. 182 of 1996 refusing to receive certain documents filed by the plaintiffs-petitioners.
2. The petitioners field O.S. No. 182 of 1986 for perpetual in injunction. They also obtained an ad interim injunction, which was ultimately confirmed by this Court by ordering status quo in CRP No. 3857 of 1999 dated 27.1.2000. The petitioners examined P.Ws.1 to 3 and closed their evidence. When the matter was coming up for the defence evidence, the petitioners filed I.A.No. 548 of 2000 under Rule 2 of Order XIII of the Code of Civil Procedure, 1908 ('CPC' for brevity) praying the Court to receive the lease deed, sale deed and certified copies of the pahanies for the year 1971-74 by condoning the delay in filing the same. They alleged that the documents which were filed along with I.A.No. 548 of 2000 were already filed before the Inams Tribunal duly paying the penalty and that originals were misplaced at the time of filing of the suit. As they were traced recently, the application was filed.
3. The respondents/defendants opposed the application inter alia contending that the sale deed was never filed before the Inams Tribunal and that the plaintiffs never mentioned about the documents in the plaint and other pleadings.
4. The Trial Court on consideration of the rival contentions dismissed I.A. No. 548 of 2000 inter alia on the ground that the plaintiffs never mentioned about the document in the plaint or in the CMA filed earlier and that they failed to show sufficient cause to receive the documents at the belated stage.
5. I have heard the learned Counsel for the petitioners and the learned Counsel for the respondents who reiterated the submissions made by the parties before the lower Court.
6. Rule 14 of Order VII as it stood prior to 1.7.2002 reads as under:
1 . Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
List of other documents: where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint."
7. The above said provision was substituted by the Code of Civil Procedure (Amendment Act) 1999 and after amendment it reads as under:
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 wherever possible state in whose possession or power it is.
3 Where a document or a copy thereof is not filed with the plaint under this rule, it shall not be allowed to be received in evidence on behalf of the plaintiff at the hearing of the suit.
4. Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or handed over to a witness merely to refresh his memory.
8. Sub-Rule (3) of Rule 14 of Order VII was again substituted and the following Sub-rule (3) was inserted:
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.
9. The CPC Amendment Act, 2002 and the CPC Amendment Act, 1999 came into force with effect from 1.7.2002. The law as it stands requires a plaintiff who relies or sues upon a document and who is in possession of such a document to enter such a document in a list and shall produce it in the Court when the plaint is presented. If the document is not in possession or power of the plaintiff, the law requires the plaintiff to state in whose possession or power the document is. If the document which ought to be produced when the plaint is presented or a document which ought to be entered in the list to be added or annexed to the plaint is not produced or entered accordingly, no such document shall be received in evidence on his behalf on hearing of the suit unless prior leave of the Court is obtained. Sub-rule (3) of Rule 14 as it stood prior to the Code of Civil Procedure (Amendment) Act, 2002 totally denied the opportunity to the plaintiff to produce any document to be received in evidence on his behalf at the hearing of the suit. But the harshness of the provision was taken away by Section 8(i)(3) of the Code of Civil Procedure (Amendment) Act, 2002 by substituting a new Sub-rule (3) according to which in a given case with the leave of the Court a document can be produced in evidence on behalf of the plaintiff which was not earlier annexed or produced at the time of presenting the plaint.
10. The Code of Civil Procedure (Amendment) Act, 1999 (Central Act 46 of 1999) and The Code of Civil Procedure (Amendment) Act 2002 (Central Act 22 of 2002) were challenged before the Supreme Court in the Salem Advocate Bar Association, Tamilnadu v. Union of India, WP (Civil) No. 496 of 2002 = 2002 (6) ALD 34 (SC). A Division Bench of the Supreme Court by judgment dated 25.10.2002 while giving certain clarifications regarding the scope of various provisions namely Sections 27,18, 100-A of the Code of Civil Procedure as amended as well as Order VII, Rule 11; Order XVIII Rule 4(1), Order XVIII Rule 4(2), Order XVIII Rule 17-A and Order XLI Rule 9, appointed a Committee to consider the difficulties and suggestions and observed as under:
As already observed, if any difficulties are felt, these can be placed before the Committee constituted hereinabove. The Committee would consider the said difficulties and make necessary suggestions in its report. It is hoped that the amendments now made in the Code of Civil Procedure would helping expeditious disposal of cases in the Trial Courts and the appellate Courts.
11. The provisions of Order VII Rule 14(3) were impliedly upheld. Even after Amendment, the Trial Court is vested with the discretion whether or not to permit the plaintiff to produce evidence on his behalf on the hearing of the suit.
12. Further, as per Sub-rule (2) of Order XIII CPC as it stood prior to Amendment Act, 1999, the documentary evidence which is not produced at or before settlement of issues shall not be received at any subsequent stage of proceedings unless good cause is shown to the satisfaction of the Court for the non production of the documents at the time of settlement of issues. Rules 1 and 2 of Order XIII were substituted by Rule 1 of Order XIII of the Amendment Act, 1999 which reads as under:
The parties or their pleader shall produce on or before the settlement of issues all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement, (2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs. (3) Nothing in Sub-rule (1) shall apply to documents-
(a) produced for the cross-examination of the witnesses of the other party; or
(b) handed over to a witness merely to refresh his memory,
13. A reading of Rule 1 of Order XIII alone would show that the Court shall receive the documents produced on or before the settlement of issues if the copies thereof have been filed along with the plaint or written statement. The Court has no power to receive the documents produced subsequently. Further, Sub-rule (3) of Rule 14 of Order VII empowers the Court to give permission or leave to the plaintiff to produce documents at a subsequent stage of hearing of the suit. Order XIII Rule 1 and Order VII Rule 14 (3) have to be read together harmoniously. Reading together would lead that if the plaintiff applies for permission or leave to produce documents to be received in evidence at the hearing of the suit which documents were not produced on or before settlement of the issues or at the time of production of the plaint, the Court has to exercise sound discretion having regard to the facts and circumstances of each case. Mere non-mention of the documents in the plaint or subsequent incidental or supplemental proceedings in the suit does not in any manner affect the power of the Court to grant leave to produce the documents at the subsequent stage. Non-mentioning of the documents sought to be produced at the subsequent stage is a curable defect. With leave of Court, which is condition precedent under Sub-rule (3) of Rule 4 of Order VII read with Sub-rule (1) of Order 13 to receive the documents, documents can be produced at the time of trial. But Order VII Rule 14(3) being an exception to the rule in Order VII Rule 14(1) as well as Order XII Rule 1(1)(2), the power to grant must be exercised in rare cases and not in a routine manner.
14. The Trial Court in my opinion committed clear error in coming to the conclusion that the documents sought to be produced are irrelevant and that no mention of the same was made in the pleadings or in the earlier proceedings.
15. In the result, the Civil Revision Petition is allowed and the documents produced along with IA No. 540 of 2000 shall be permitted to be received in evidence subject to the plaintiffs proving them as per law. The respondents/defendants shall be entitled to raise all objections regarding admissibility, proof and evidentiary value of the documents. No costs.