Allahabad High Court
Sarvesh Kumar vs Rohailkhand Educational Charitable ... on 10 December, 2019
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 9 Case :- CIVIL REVISION No. - 258 of 2016 Revisionist :- Sarvesh Kumar Opposite Party :- Rohailkhand Educational Charitable Trust Bareilly And 4 Others Counsel for Revisionist :- Arpit Agarwal,Garima Agarwal Counsel for Opposite Party :- Santosh Kumar Giri Hon'ble Jayant Banerji,J.
Heard Shri Arpit Agarwal, learned counsel for the revisionist. Despite the matter being called up in the revised list, no one appears for the opposite party.
This revision has been filed against the order dated 2.5.2016 passed by the Additional Civil Judge (Senior Division)/Additional Judge, Small Causes Court, Bareilly, whereby the application bearing Paper No. 146C filed by the defendant-respondent to bring some documents on record at the stage of evidence in Original Suit No. 468 of 2010 (Sarvesh Kumar Vs. Rohailkhand Educational Charitable Trust Bareilly and others) has been allowed.
It is contended by the learned counsel for the plaintiff-revisionist that the order impugned permitted the filing of the evidence at the stage of evidence has been passed without taking into account the fact that Order 13 Rule 2 CPC had been deleted by the Amending Act No. 46 of 1999 with effect from 1.7.2002. Learned counsel has relied upon a judgement of the Coordinate Bench of this Court reported in MANU/UP/1980/2005 in the case of Hoti Lal and others Vs. Additional District Judge and others, where the Court had observed that after the amendments no such discretion as provided in the unamended Rule 2 of Order 13 of CPC, is now left with the court as that provision no longer exists in the statute book.
A perusal of the impugned order reveals that an application Paper No. 146C was filed for taking on record the documents enclosed with the list dated 16.2.2016. As is apparent from the order impugned, the list dated 16.2.2016 enclosed therewith 18 documents which constituted carbon copies, receipt of the bank, public notice, publication in newspaper, the letter dated 4.4.2010 sent to the plaintiff, carbon copy of correspondence and documents that were misplaced earlier and could be found only on 10.2.2016 and as such could not be filed before the court below were filed. Plaintiffs filed their objections stating that the application for filing evidence is not maintainable. It was stated in the objections that a similar application bearing Paper No. 125C filed by the defendants was rejected by the court below on 1.9.2015 on its merits.
In its decision, the court below observed that the case is being taken up for evidence and the plaintiff admitted that those documents are required for the decision of the aforesaid case. Most of the documents sought to be filed are those that were inspected by the counsel for the petitioner pursuant to the orders of the court. The court below further observed that most of the documents are in the knowledge of the plaintiff and no prejudice would be caused if they are bought on record. The court below relied upon the judgement of the Supreme Court in the matter of Arjun Singh Vs. Mahendra Kumar reported in AIR 1964 SC 993 and in the case of Billa Jagan Mohan Reddy Vs. Billa Sanjeeva Reddy reported in 1995 (1) Civil Court Cases 91 (SC). The court below observed that the suit has to be decided on the basis of its merits and therefore the aforesaid documents be admitted subject to payment of cost.
Though the learned counsel for the revisionist is not able to demonstrate that the cost as was fixed by the court below in the impugned order dated 2.5.2016 has or has not been accepted by the revisionist, the fact remains that once the provision of Order 13 Rule 2 CPC has been struck off from the statute, documentary evidence in original are required to be filed by the parties or pleaders before the settlement of issues. The discretion conferred in the Order 13 Rule 2 CPC prior to its repeal with effect from 1.7.2002, is no longer available with the court. The provisions of Order 13 Rule 1 CPC which was substituted by the Act No. 46 of 1999 with effect from 1.7.2002 is as below:
"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 by 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."
Having regard to amendments as discussed above, the impugned order dated 2.5.2016 which has been passed by the court below at the stage of evidence, that is to say after framing of issues, cannot be sustained.
However, the defendant-respondents are not rendered helpless. The provision of sub-rule (3) of Rule 1 of Order 13 of the CPC provides that nothing in sub-rule (1) shall apply to documents produce for the cross-examination of the witnesses of the other party or, handed over to a witness merely to refresh his memory. Thus, for these two limited purposes, and not to enable the party concerned to rely on the documents for proving his case, the production of documents is permissible.
In view of the aforesaid facts and circumstances and subject to the observations made above, this revision is allowed and the order dated 2.5.2016 is set aside.
Order Date :- 10.12.2019 A. V. Singh