Madras High Court
M/S.Sundaram Dynacast Pvt. Ltd vs M/S.Raas Controls on 2 March, 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02 .03.2011 CORAM THE HON'BLE Mr. JUSTICE K.VENKATARAMAN C.R.P. (PD) Nos.4629 & 4630 of 2010 & M.P.No.1 of 2010 M/s.Sundaram Dynacast Pvt. Ltd., Having its Office at M.T.H.Road, Padi, Chennai 600 050 Represented by its Vice-President (Operations) ... Petitioner in both the CRPs -Vs.- 1.M/s.Raas Controls, Having Factory at No.222, Okhla Industrial Estate Phase III, New Delhi 110 020. Represented by its Partner Mrs.Anju Khanna 2.Mrs.Anju Khanna, Having Office at No.222, Okhla Industrial Estate Phase III, New Delhi 110 020. 3.Mrs.Kanwall Khanna, C/o.M/s.Raas Controls, Having its Factory at No.222, Okhla Industrial Estate Phase III, New Delhi 110 020. ... Respondents in both the CRPs C.R.P (PD) No.4629 of 2010 Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decreetal Order dated 16.02.2010 in I.A.No.44 of 2010 in O.S.No.166 of 2004 on the file of the Additional District Judge cum Fast Track Court No.2 at Poonamallee. C.R.P (PD) No.4630 of 2010 Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decreetal Order dated 16.02.2010 in I.A.No.1642 of 2009 in O.S.No.166 of 2004 on the file of the Additional District Judge cum Fast Track Court No.2 at Poonamallee. For Petitioner : Mr.Srinath Sridevan For Respondents : Mr.V.Ramesh C O M M O N O R D E R
These Civil Revision Petitions are directed against the fair and decreetal order dated 16.02.2010 of the learned Additional District Judge cum Fast Track Judge No.2 at Poonamallee made in I.A.Nos.44 of 2010 and 1642 of 2009 in O.S.No.166 of 2004.
2. I.A.No.44 of 2010 was filed by the plaintiff in O.S.No.166 of 2004 to recall PW1 for marking further exhibits on his side. I.A.No.1642 of 2009 was filed by the same plaintiff to receive the documents mentioned in the petition. Those applications came to be dismissed by the Court referred to above and the present revisions are directed against the said orders.
3. The learned counsel appearing for the petitioner contended that the suit was filed against the respondents for recovery of money by the company represented by its Vice-President (Operations). The Company has authorized the said Vice-President by resolution No.228 dated 27.09.2001. The true extract was omitted to be filed by mistake and inadvertence, when he was examined as PW1 and hence an application was taken out to recall PW1 for marking the said document. An application was also taken out to condone the delay in filing the document.
4. However, it is contended on the side of the respondents by the learned counsel appearing for the respondents that the applications were taken out at the belated stage. That apart, the signatory of the plaintiff was not authorized to file the suit in his capacity as Vice-President (Operations) of the petitioner company. Hence, the applications have been rightly dismissed by the Court below which does not require any interference by this Court in the revisions filed against those orders.
5. I have considered the submissions made by the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondents.
6. The suit was originally filed by one M/s.Sundaram Dynacast Pvt. Ltd., which was represented by its Vice-President (Operations). In the affidavits in support of the applications to recall PW1 and also to condone the delay in filing the document, it is stated that the company has authorized the said Vice-President (Operations) by its resolution dated 27.09.2001 to institute legal proceedings on behalf of the company, but however the same was omitted to be filed by mistake and inadvertence. Though, the said applications were taken out belatedly, to avoid multiplicity of proceedings, the petitioner could be permitted to file the said resolution. By merely permitting the petitioner to produce that resolution, it will not curtail the right of the respondents to contend that no such resolution was passed, but it is brought in only to throw the defense raised by the respondents. That apart, by merely receiving the said document, it does not mean that the respondents have no liberty to question about the admissibility of the document when it is sought to be marked. The admissibility of the document can be questioned on behalf of the respondents when it is sought to be marked through PW1. While so, even at the inception stage namely, at the time of receiving the document, the admissibility or veracity of the document cannot be gone into.
7. The learned counsel appearing for the respondents relied on the decision reported in AIR 1935 Lahore 648, Dasaundhi Khan v. Rabian Bibi and contended that the documents cannot be received after arguments are heard. However, in the same judgment it has been held that though the documents cannot be received after arguments are heard, if some sufficient reasons are shown for its non-production, the same could be received. In the case on hand, it is stated in the affidavit in support of the application that extract of the said resolution was omitted to be filed by mistake and inadvertence when PW1 was examined. Thus, an explanation has been given as to why the said resolution was not filed when PW1 was examined.
8. Yet another decision that was relied on by the learned counsel appearing for the respondents is reported in (2009) 4 SCC 140, Vadiraj Nagappa Vernekar v. Sharadchandra Prabhakar Gogate. Paragraphs 25 and 26 of the said judgment are usefully extracted here under:
"25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.
26. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared."
9. No doubt, to fill up the omissions in the evidence of witnesses, Order 18 Rule 17 CPC cannot be invoked. However, in the case on hand, it is stated that the resolution which is sought to be marked was not filed by mistake and inadvertence, when PW1 was examined. Thus, reasons were set out as to why the said document cannot be filed when PW1 was examined. The respondents will have ample opportunity to cross-examine PW1, about the admissibility of the document at the time of marking the document and at the time of further cross-examination of PW1.
10. Yet another decision that was relied on by the learned counsel appearing for the respondents is reported in 41 (1990) Delhi Law Times 633, Nibro Limited v. National Insurance Co. Ltd. In the said decision, it has been held that the powers of the company vest with the Board of Directors and an individual Director without specific direction of the Board cannot institute a suit. In the case on hand, the document which is sought to be filed on behalf of the petitioner is a resolution authorizing the Vice-President (Operations) of the petitioner company. Hence, the said judgment also may not be useful to the respondents.
11. Yet another decision that was relied on by the learned counsel appearing for the respondents is reported in 2006 (1) CTC 610, Central Bank of India v. M/s.Rama Granites. By citing the said decision, the learned counsel appearing for the respondents contended that if the party satisfies the Court that the evidence sought to be produced was not within his knowledge or could not be produced at the time when he let in evidence, the Court has got ample inherent power to permit such evidence to be let in at a later stage also. But, in the case on hand, according to the learned counsel appearing for the respondents, no such statement was made in the affidavit in support of the application for reception of the document. As stated already, it is pleaded by the petitioner that by mistake and inadvertence, the said document could not be filed. Hence, I am of the considered opinion that the petitioner could be permitted to file the said document through PW1.
12. Yet another decision that was relied on by the learned counsel appearing for the respondents is reported in 147 (2008) Delhi Law Times 99, Reba Mukherjee and Others v. Rajiv Behl. It was held in the said judgment that when parties have led their evidence and closed the same, it is impermissible to allow a party to fill up the gaps and lacuna unless compelling circumstances brought on record as to why a particular witness could not be examined by party while leading evidence. In the present case on hand, as stated already reason has been given as to why the said document cannot be filed when PW1 was examined.
13. Before amendment of the Code of Civil Procedure, by Amendment Act 46 of 1999, Rule 17-A of Order 18 of the Code was inserted by Act 104 of 1976 with effect from 01.02.1977. The said Rule contemplates, "Procedure of evidence previously known or which could not be produced despite due diligence.-- Where a party satisfies the Court that after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just."
14. However, it has to be seen that while Rule 17-A of Order 18 was introduced by Act 104 of 1976, Order 7 Rule 14 as it then stood is as follows:
"Production of document on which, plaintiff sues.-- (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.
(2) List of other documents.-- Where he relies on any other document (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."
15. By way of amendment of CPC, by Amendment Act 46 of 1999 with effect from 01.07.2002, Rule 17-A was omitted. However, under Order 7 Rule 14 apart from Rule 14(1) & 14(2), Rule 14(3) was inserted. The said insertion is extracted here under:
"(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."
16. Thus, though Order 18 Rule 17-A was omitted by Amendment Act 46 of 1999 with effect from 01.07.2002, the insertion of Rule 14(3) under Order 7 will amply establish that the plaintiff with the leave of the Court can file the document even though it was not filed along with or annexed with the plaint. Thus, looking at any angle, the order of the Court below rejecting the request of the petitioner to recall PW1 and to file the document referred to above is totally untenable and unjustified.
17. Thus, the order of the learned Additional District Judge cum Fast Track Judge No.2, Poonamallee dated 16.02.2010 made in I.A.Nos.44 of 2010 and 1642 of 2009 in O.S.No.166 of 2004 are liable to be set aside and accordingly set aside.
18. In fine, the Civil Revision Petitions stands allowed. Consequently, connected miscellaneous petitions are closed. However, no orders as to costs.
pgp To The learned Additional District Judge cum Fast Track Judge No.2, Poonamallee