Madras High Court
K. Kasturi And Ors. vs C. Mohan, C. Somasundaram And C. ... on 15 September, 2006
Equivalent citations: (2006)4MLJ1061
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
ORDER V. Ramasubramanian, J.
1. The defendants, in O.S. No. 197 of 1999 pending on the file of the Additional District Munsif Court, Chengam, Tiruvannamalai District, have filed the above civil revision petition, challenging an order dated 19.7.2004 passed in I.A. No. 490 of 2004, permitting the plaintiffs to file certain documents as additional documents before the commencement of the trial.
2. Admittedly, the respondents filed a suit in O.S. No. 197 of 1999 praying a decree of partition of the suit schedule property into two equal halves and for the allotment of one half share to them and for a decree for delivery of possession. The revision petitioners have already filed the written statement and the suit is ripe for trial.
3. At that stage, the respondents filed I.A. No. 490 of 2004 seeking permission to file certain documents as additional documents. The said petition was resisted by the petitioners herein, primarily on the ground that there was no pleading with regard to document Nos. 4 to 6 and that therefore, no documents could be received in evidence, without there being a pleading.
4. By a fair and decretal order dated 19.7.2004, the trial Court allowed the application, on the ground that the plaintiffs should have an opportunity to prove their case and that by permitting the plaintiffs to file the documents, no prejudice would be caused to the petitioners herein. Aggrieved by the said order, the petitioners have filed the above civil revision petition.
5. Mr. V.Lakshminarayanan, learned Counsel appearing for the revision petitioners contended -
a) that after the amendment to the Code of Civil Procedure, it is mandatory for the plaintiffs to file all the documents necessary to prove their case, along with the plaint under Order VII Rule 14 and a similar duty is cast upon the defendants also under Order VIII Rule 1-A; and
b) that the entire case of the respondents (plaintiffs) rested upon their purchase of undivided half share of one of the co-owners by name Sankarayya @ Sankar Bakthar on 10.2.1999 and that there are no pleadings at all which can be related to the documents now sought to be filed as additional documents.
In short, it is the contention of the learned Counsel appearing for the petitioners that a person who failed to file the documents in his possession, at the time of presentation of the plaint, is dis-entitled to file them at a later stage and that no amount of evidence can be admitted, without there being any pleading relating to the same. The learned Counsel for the petitioners also relied upon the decision of the Apex Court in Madanlal v. Shyamlal , for the proposition that "documents not produced at the appropriate stage shall not be received by the Court unless good cause is shown" for their non production at the relevant time.
6. Mr. V.C. Janardhanan, learned Counsel appearing for the respondents contended that in view of the provisions of Order XIII Rule 1 of the Code of Civil Procedure, the parties to a suit are entitled to file all the documentary evidence, on or before the settlement of issues in the suit and that therefore in view of the said provision, the directive contained in Order VII Rule 14 cannot be taken to be absolute and indispensable. Moreover, according to the learned Counsel for the respondents, it is always open to the petitioners to object to the marking of the documents at the time of trial, if the documents are found to be objectionable. In other words, the stage has not come for the petitioners to object to the documents either on the ground of their admissibility or on the ground of their truth and validity.
7. I have considered the rival submissions of the parties.
8. Before the Code of Civil Procedure (Amendment) Act 46 of 1999 and Act 22 of 2002, Order VII Rule 14 of the Code of Civil Procedure dealt with two types of documents, namely, (1) the document in possession or power of the plaintiff, upon which he sues and (2) any other document on which he relies, whether it is in his possession or power or not. In so far as the document on which the plaintiff sues is concerned, it was required to be filed along with the plaint. The document on which he relies could be filed later, provided a list is furnished under Order VII Rule 14(2). Similarly, Order XIII Rule 1(1) required the parties to produce all documentary evidence of every description in their possession or power, at or before the settlement of issues, if they have not already been filed into Court. In view of Order XIII Rule 2(1) of the Code, the production of the documentary evidence in the possession or power of any party which should have been, but has not been produced, at or before the settlement of issues cannot be produced at any subsequent stage of the proceedings, unless good cause is shown to the satisfaction of the Court for the non-production thereof. But the Amendment Acts of 1999 and 2002 brought forth certain changes, which could be well appreciated by a comparative analysis of these provisions, before and after the Amendments.
9. The provisions of Order VII Rule 14(1) and (2) before amendment read as follows:
14. 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 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.
The Amendment Act 46 of 1999, replaced Order VII Rule 14, with the following:
14. Production of document on which plaintiff sues or relies.-- (1) Where a plaintiff sues upon a document or relies upon a 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 any such 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.
10. Similarly, Order XIII Rule 1 and 2(1) before amendment read as follows:
ORDER XIII PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS
1. Documentary evidence to be produced (at or before the settlement of issues).--(1) The parties or their pleaders shall produce at or before the settlement of issues, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.
(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.
2. Effect of non-production of documents.--(1) No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing.
Order XIII Rule 1 and 2 were substituted by Order XIII Rule 1(1), (2) and (3) by the Amendment Act as follows:
ORDER XIII PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS
1. Original documents to be produced at or before the settlement of issues.--(1) 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.
11. On a comparison of the provisions of Order VII Rule 14 of the Code of Civil Procedure before amendment and after Amendment of 1999, it is seen that the primary requisite for a plaintiff to produce any document in his possession or power at the time of presentation of the plaint, has remained unchanged. The rule uses the words "shall produce it in Court" both before and after the amendment. But Sub-rule (2) of Rule 14 of Order VII of the Code of Civil Procedure has undergone a change, in that the plaintiff was merely required to furnish a list of "any other documents relied upon by him, whether in his possession or power or not", before the amendment. But after the Amendment of 1999, Sub-rule (2) of Rule 14 of Order VII of the Code of Civil Procedure requires the plaintiff to state in whose possession or power a particular document is, if it is not in his own possession or power.
12. Coming to Order XIII, before the Amendment, the parties were entitled to produce all documentary evidence of every description, at or before the settlement of issues, if they have not already filed them into Court. But after the amendment, Order XIII Rule 1 (1) allows only those documentary evidence in original to be produced at or before the settlement of issues, "where copies thereof have been filed with the plaint or written statement". Thus, in effect, Order XIII Rule 1 prior to amendment permitted all documents which were not already filed into Court, to be filed at or before the settlement of issues and Order XIII Rule 2 allowed the production of documents even after the settlement of issues. To be precise, Order XIII Rule 2 before Amendment permitted production of documents, "at any subsequent stage of the proceedings", if a good cause is shown to the satisfaction of the Court. But after the amendment, only the originals of such of those documents whose copies have already been filed along with the plaint or written statement, were entitled to be produced at or before the settlement of issues. In particular, Order XIII Rule 2(1) prior to amendment, which permitted the parties to file all documents "at any subsequent stage of the proceedings" stood deleted by the amendment. Therefore, a conjoint reading of Order VII Rule 14 and Order XIII Rule 1 after the amendment gives an impression as though the documents which were not filed along with the plaint or written statement, can never be filed subsequently.
13. But it is not so. The Amendment Act 22 of 2002 has introduced a new Sub-rule (3) to Rule 14 of Order VII, in the place of the Sub-rule (3) substituted by Amendment Act 49 of 1999. The new Sub-rule (3) of Rule 14 of Order VII, after the Amendment of 2002 reads as follows:
Substituted by Act 22 of 2002 w.e.f. 1.7.2002 - (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.
Thus the deletion of the provision, enabling to production of documents "at any subsequent stage of the proceedings" under Order XIII Rule 2 as it stood before amendment, has been compensated by the introduction of Sub-rule (3) under Rule 14 of Order VII under Amendment Act of 2002. Therefore, the right of a party to file a document at the time of hearing of the suit, if he has not already filed such document along with the plaint, is retained by the Amendment of 2002. All that is required under such circumstances, is that the plaintiff should take "the leave of the Court". Even the words "good cause" that appeared under Order XIII Rule 2(1) before the amendment are absent in the newly introduced Sub Rule 3 of Rule 14 of Order VII of the Code of Civil Procedure. As a matter of fact, even in the judgment cited by the learned Counsel appearing for the petitioners in Madanlal v. Shyamlal , the Apex Court observed that the power under Order XIII Rule 2 of the Code of Civil Procedure (before amendment) should be exercised liberally and that "good cause" requires lesser decree of proof than that of "sufficient cause". Therefore, in view of the provisions contained in Order VII Rule 14 (3) of the Code of Civil Procedure, as amended by Act 22 of 2002, the respondents were entitled to file the documents in question, with the leave of the Court, which is what they have done in this case. The power of the Court to grant leave for a plaintiff to file additional documents under Order VII Rule 14 (3) is not even circumscribed by words such as "good cause" that were found in Order XIII Rule 2 before Amendment.
14. Coming to the last contention that the documents sought to be filed are not supported by the pleadings, I am of the view that it is always open to the revision petitioners to object to the documents being marked as exhibits, if they have any valid ground to do so, at the appropriate stage. The stage at which an opposition to the marking of documents as exhibits could be made, has not yet come. Therefore, I find no infirmity in the order of the trial Court in allowing the application for receipt of additional documents. Hence the civil revision petition is dismissed. No costs. Consequently, connected CMP is also dismissed.