Gujarat High Court
Jay Krishna Printers vs S. N. Tradelink Pvt. Ltd on 23 September, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15738 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
JAY KRISHNA PRINTERS
Versus
S. N. TRADELINK PVT. LTD.
==========================================================
Appearance:
MR. VARSHA BRAHMBHATT with POOJA H BHARDWAJ(7844) for the
Petitioner(s) No. 1,2,3
MR DHAVAL M BAROT(2723) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 23/09/2022
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
1. Issue Rule making it returnable Page 1 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 forthwith. Mr. Dhaval Barot, learned advocate on record for the respondent waives service of notice of rule. Considering the nature of dispute involved, both the parties have agreed for final hearing of the matter. Hence, heard finally.
2. Present petition is filed by a partnership firm (original defendant) through its partners challenging the order dated 01.02.2022 passed below Exh.No.284 in Commercial Suit No.92 of 2019 passed by the learned 2nd Additional Senior Civil Judge, Surat, whereby the application seeking production of additional documents filed by the original defendant came to be rejected.
3. The facts, in nutshell, as pleaded by the petitioner, can be summarized as under:-
1. Respondent herein (original plaintiff) had filed Special Civil Suit No.51 of 2011 in Civil Court at Surat praying for recovery of an amount of Page 2 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 Rs.24,90,000/- with 24% interest against the present petitioners. Considering the pleadings, summons came to be issued upon the defendants, whereby the written statement came to be filed vide Exh.18, on 21.05.2015 without any supporting documents.
2. The issues were framed by the Court below. The suit proceeded for recording of evidence. The examination-in-chief came to be submitted by the plaintiff.
The matter was listed before the trial Court for cross-examination of the plaintiff. Initially, in absence of the defendant, cross-examination of the plaintiff came to be closed. Application was moved seeking reopening at the evidence stage, which ultimately came to be rejected by the Court below, against which the original defendant preferred writ petition before this Court being Page 3 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 Special Civil Application No. 20284 of 2021.
3. Upon hearing the respective parties, the coordinate Bench of this Court was pleased to allow the petition vide order dated 17.01.2022, thereby directing the original defendants to complete the cross-examination of the plaintiff.
4. It is at this stage of reopening of the cross-examination that the applicant original defendant preferred an application at Exh.284 seeking permission of the Court to produce the additional documents along with the list of documents produced with such application. Such an application filed by the original defendant came to be objected to by the original plaintiff. Ultimately, the trial Court, considering the objections of the original plaintiff as well as upon hearing the learned advocates for the Page 4 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 respective parties, was pleased to reject such an application vide order dated 01.02.2022. It is against such order of rejection of application at Exh.No.284 seeking permission to produce documents filed on behalf of original defendants, the writ applicant has approached this Court.
4. We have heard Ms.Varsha Brahmbhatt, learned advocate who has appeared with Ms.Pooja H. Bhardwaj, learned advocate on record for the petitioner and Mr. Dhaval Barot, learned advocate on record for the respondent.
5. Ms.Brahmbhatt, learned advocate for the petitioner has invited attention of this Court to the order impugned dated 01.02.2022. She has further invited attention of this Court to the contents of the application at Exh.284 and the list of documents proposed to be produced as evidence on behalf of the Page 5 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 original defendant. She has submitted that the respondents had filed suit for recovery of an amount of Rs.24,90,000/- with 24% interest. It is upon the transactions between the parties where the proposed documents have been relied upon along with application at Exh. No.284, which pertains to the very same transactions. She invited attention of this Court to the nature of documents proposed to be brought on record, whereby she submitted since essentially the dispute between the parties is about non receipt of goods by the defendants, the documents sought to be produced are required for the adjudication of said dispute. The documents mainly pertain to the closure of Mill of the writ applicant, the disputed bills, the documents, which relate to the delivery of system of the goods by the respondent plaintiff to the writ applicant defendants, the bank statement of the writ applicant and the receipts of Page 6 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 payment of VAT made by the writ applicants. She, therefore, submitted that the aforesaid documents were necessary, as it relates to the very same transaction against which the plaintiff had approached the trial Court seeking recovery of the amount, which were otherwise necessary documents for effective adjudication of the dispute involved between the parties. She further submitted that because of the reasons mentioned in the application at Exh. No.284, the said documents could not be produced along with the written statements since the documents relate to the dispute involved. The trial Court ought to have permitted the defendant to produce the documents even at the stage of cross-examination of the plaintiff. She further submitted that the production of such documents at the stage of cross-examination of the plaintiff, would have in no manner prejudice the original plaintiff. She further Page 7 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 submitted that the documents marked at Sr.No.14,23,26,31 and 34 are the documents exhibited by the original plaintiff respondent herein and in no manner the production of such document would surprise the plaintiff. In fact, the production of such a document would have helped the trial Court for proper adjudication of the lis involved. She further invited the attention of this Court to the provisions related to the production of documents , more particularly Order 8 rule 1A of the Code of Civil Procedure and submitted that the trial Court is vested with the discretionary powers to grant leave to produce such documents for judicious exercise of the dispute involved. She, therefore, urged to quash and set aside the order below Exh. No.284 and to grant permission to produce such a document before the trial Court.
6. On the other hand the aforesaid Page 8 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 submission canvassed by the learned advocate appearing for the writ applicant has been vehemently objected to by learned advocate Mr.Dhaval Barot appearing for the respondents. At the outset, he submitted that the documents sought to be produced along with application at Exh.NO.284 were at the stage of cross-examination of the plaintiff. In fact, after filing of the petition, the trial Court has proceeded further and the cross-examination of the plaintiff is over. He therefore submitted that the matter has become infructuous as the very cause for production of documents to cross examine the plaintiff no more survives. He further submitted that no explanation has been offered by the original plaintiff at Exh.No.284 in production of the additional documents. He relied upon the relevant provisions of the Code of Civil Procedure, more particularly, Order VIII, Rule 1A of the Page 9 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 Code of Civil Procedure along with order XI, Rule 14 and Order XIII, Rule 2 of the Code of Civil Procedure and submitted that unless a good cause is shown to the satisfaction of the Court concerned, the trial Court has rightly not entertained such application seeking permission of production of additional documents at the belated stage of cross-examination of plaintiff, which has now ultimately progressed to the evidence stage of the defendant. He further submitted that no error of law or fact has been invited attention of this Court by the original defendant calling for interference of this Court under writ jurisdiction of Article 226 of the Constitution of India. He has urged not to entertain the writ petition and permission sought for production of additional documents.
7. Learned advocate Mr. Barot, in support of his case, has relied on the decision of Page 10 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 the High Court of Judicature at Bombay, Nagpur Bench at Nagpur in Writ Petition No.7717 of 2019. By referring to the observations of the Hon'ble Bench of Bombay High Court, he has submitted that the provisions, more particularly, Order VIII Rule 1A(1)(2) and (3) of the Code of Civil Procedure has been dealt with whereby the Bench has held that the said provisions shall not be applicable since the additional documents were sought to be produced with the plaintiff ie. the party to the suit was in witness box and permitting direct confrontation of documents in witness box without having opportunity to raise defense will negate the very object of fair trial. .
8. We have heard learned counsel for the respective parties and have also perused the documents on record. We have carefully examined the order impugned and have also gone through the decision relied upon by Page 11 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 learned counsel appearing for the respondents.
9. At the outset we take notice of the fact that while passing the impugned order, the trial court has placed heavy reliance on provisions of Code of Civil procedure viz. Order VII rule 14, Order VII rule 17, Order VIII rule 1-A, Order 11 Rule 14, Order XIII rule 1, Order XIII rule 2, which deals with production of the additional documents by the parties.
10. Unfortunately, the trial court has failed to appreciate that the original suit was transferred to the commercial court in the year 2019 and it has been renumbered as Commercial civil suit no. 92 of 2019. The defendant has moved application EXH. 284 without any reference to any provision of the Code of Civil Procedure. However, the fact remains that production of documents is Page 12 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 sought for by the defendant at the stage of cross examination of the plaintiff.
11. It would be worth referring to the relevant provisions of CPC which essentially relates to the Commercial courts act. After coming into force of Commercial Courts act, 2015, separate chapter under Order XI under nomenclature of Disclosure , Discovery and Inspection of Documents in Suits before the Commercial division of a High Court or a Commercial Court w.e.f. 23.10.2015, has been introduced. Further, Rule 7 of Order XI of CPC clearly clarifies and mentions that Order XIII, rule 1, Order VII rule 14 and Order VIII rule 1A of the CPC shall not apply to suits or applications before the Commercial Divisions of High Court or Commercial Courts.
Thus, in our opinion the trial court committed serious error by relying upon the aforesaid provisions of CPC while deciding application for production of documents. Page 13 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022
12. At this stage, it would be fruitful to refer to the recent decision of the Hon'ble Supreme Court in the case of Sudhir Kumar A S. Baliyan vs. Vinay Kumar, reported in the 2021 SCC online SC 734, wherein the hon'ble supreme court while deciding the issue of production of additional documents by the plaintiff, taking notice of the amended provisions of CPC as made applicable to Commercial suits, held as under :
"7. We have heard the learned counsel appearing on behalf of the respective parties at length.
7.1 By the impugned judgment and order, the High Court has dismissed the petition confirming the order passed by the learned Commercial Court dated 13.11.2019, dismissing the application filed by the appellant herein - original plaintiff seeking leave of the court to place additional documents on record. That by the said application the plaintiff prayed to permit him to place on record the invoices as mentioned in paragraph 3 of the application and also certain other additional documents. That the plaintiff stated in the application for leave to place on record additional documents in paragraph 3 and 4 as Page 14 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 under: "3. That the accompanying documents along with the present application in particular invoice dated 03.05.2005, invoice dated 08.07.2005, invoice dated 10.08.2005, invoice dated 22.02.2006, invoice dated 10.04.2006, 1nvo1ce dated 05.06.2006, invoice dated 15.07.2006, invoice dated 10.01.2007, invoice dated 14.03.2007, invoice dated 19.05.2007, invoice dated 08.07.2007, invoice dated 06.09.2007, invoice dated 14.03.2007, invoice dated 01.10.2007 could not be filed along with plaint being very old and not in possession of the plaintiff at the time of filing the plaint. Now the plaintiff has found the same from the Shivalik Graphics.
4. That the documents other than above said documents could not be filed due to voluminous records pertaining to plaintiff case could not be filed at the time of filing of case but the same are very important for the adjudication of dispute between the parties." The aforesaid application has been dismissed by the learned Commercial Court, which has been confirmed by the High Court by the impugned judgment and order. 7.2 At the outset, it is required to be noted that as such the said application for leave to produce on record additional documents was preferred by the appellant herein - original plaintiff under Order VII Rule 14 (3) of the CPC. However, considering the Order XI Rule 1 as applicable to the commercial suits by which Civil Procedure Code has Page 15 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 been amended with respect to the suits before the commercial court and in view of the Section 16 of the Commercial Courts Act, Order VII Rule 14 (3) of the CPC shall have no application at all. After the Order XI Rule 1 has been amended with respect to the suits before the commercial courts and a specific provision/procedure has been prescribed with respect to the suits before the commercial division and before the commercial court, the provision of the Code of Civil Procedure as has been amended by the Commercial Courts Act, 2015 shall have to be followed and any provision of any rule of the jurisdiction of the High Court or any amendment to the Code of Civil Procedure by the State Government which is in conflict of the Code of the Civil Procedure as amended by Commercial Courts Act, the provision of the Code of the Civil Procedure as amended by the Commercial Courts Act shall prevail. Therefore, Order XI Rule 1 as amended by the amendment in the Commercial Courts Act, with respect to the suits before the commercial division and the commercial court, the provisions of Order VII Rule 14 (3) shall not be applicable at all. Therefore as such the plaintiff applied the wrong provision seeking leave of the court to place on record the additional documents. However, considering the fact that thereafter, both the learned Commercial Court as well as the High Court treated and considered and even applied Order XI Rule 1 of the CPC as amended by the Commercial Courts Act and as applicable to the suits filed before the Page 16 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 commercial division, commercial court, we proceed to consider the application submitted by the appellant herein - original plaintiff, as if the same was submitted under Order XI Rule 1 (4) of the CPC. 7.3 It is true that Order XI Rule 1 of the CPC as applicable to the commercial suits brought about a radical change and it mandates the plaintiff to file a list of all documents, photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the plaint and a procedure provided under Order XI Rule 1 is required to be followed by the plaintiff and the defendant, when the suit is the commercial suit. Order XI Rule 1, as applicable to commercial suits reads as under:
ORDER XI DISCLOSURE, DISCOVERY AND INSPECTION OF DOCUMENTS IN SUITS BEFORE THE COMMERCIAL DIVISION OF A HIGH COURT OR A COMMERCIAL COURT
1. Disclosure and discovery of documents.--(1) Plaintiff shall file a list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the plaint, including:--
(a) documents referred to and relied on by the plaintiff in the plaint; Page 17 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022
C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022
(b) documents relating to any matter in question in the proceedings, in the power, possession, control or custody of the plaintiff, as on the date of filing the plaint, irrespective of whether the same is in support of or adverse to the plaintiff's case;
(c) nothing in this Rule shall apply to documents produced by plaintiffs and relevant only--
(i) for the cross examination of the defendant's witnesses, or
(ii) in answer to any case set up by the defendant subsequent to the filing of the plaint, or
(iii) handed over to a witness merely to refresh his memory. (2) The list of documents filed with the plaint shall specify whether the documents in the power, possession, control or custody of the plaintiff are originals, office copies or photocopies and the list shall also set out in brief, details of parties to each document, mode of execution, issuance or receipt and line of custody of each document. (3) The plaint shall contain a declaration on oath from the plaintiff that all documents in the power, possession, control or custody of the plaintiff, pertaining to the facts and circumstances of the proceedings initiated by him have been disclosed and copies thereof annexed with the plaint, and that the Page 18 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 plaintiff does not have any other documents in its power, possession, control or custody.
Explanation.--A declaration on oath under this subrule shall be contained in the Statement of Truth as set out in the Appendix. (4) In case of urgent filings, the plaintiff may seek leave to rely on additional documents, as part of the above declaration on oath and subject to grant of such leave by Court, the plaintiff shall file such additional documents in Court, within thirty days of filing the suit, along with a declaration on oath that the plaintiff has produced all documents in its power, possession, control or custody, pertaining to the facts and circumstances of the proceedings initiated by the plaintiff and that the plaintiff does not have any other documents, in its power, possession, control or custody.
(5) The plaintiff shall not be allowed to rely on documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint or within the extended period set out above, save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint.
Page 19 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 (6) The plaint shall set out details of documents, which the plaintiff believes to be in the power, possession, control or custody of the defendant and which the plaintiff wishes to rely upon and seek leave for production thereof by the said defendant. (7) The defendant shall file a list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the written statement or with its counterclaim if any, including--
(a) the documents referred to and relied on by the defendant in the written statement;
(b) the documents relating to any matter in question in the proceeding in the power, possession, control or custody of the defendant, irrespective of whether the same is in support of or adverse to the defendant's defence;
(c) nothing in this Rule shall apply to documents produced by the defendants and relevant only--
(i) for the cross examination of the plaintiff's witnesses,
(ii) in answer to any case set up by the plaintiff subsequent to the filing Page 20 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 of the plaint, or
(iii) handed over to a witness merely to refresh his memory. (8) The list of documents filed with the written statement or counterclaim shall specify whether the documents, in the power, possession, control or custody of the defendant, are originals, office copies or photocopies and the list shall also set out in brief, details of parties to each document being produced by the defendant, mode of execution, issuance or receipt and line of custody of each document. (9) The written statement or counterclaim shall contain a declaration on oath made by the deponent that all documents in the power, possession, control or custody of the defendant, save and except for those set out in subrule (7) (c) (iii) pertaining to the facts and circumstances of the proceedings initiated by the plaintiff or in the counterclaim, have been disclosed and copies thereof annexed with the written statement or counterclaim and that the defendant does not have in its power, possession, control or custody, any other documents. (10) Save and except for subrule (7) (c) (iii), defendant shall not be allowed to rely on documents, which were in the defendant's power, possession, control or custody and not disclosed along with the written Page 21 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 statement or counterclaim, save and except by leave of Court and such leave shall be granted only upon the defendant establishing reasonable cause for nondisclosure along with the written statement or counterclaim.
(11) The written statement or counterclaim shall set out details of documents in the power, possession, control or custody of the plaintiff, which the defendant wishes to rely upon and which have not been disclosed with the plaint, and call upon the plaintiff to produce the same.
(12) Duty to disclose documents, which have come to the notice of a party, shall continue till disposal of the suit. Order XI Rule 1 (3) provides that the plaint shall contain a declaration on oath from the plaintiff that all documents in the power, possession, control or custody of the plaintiff, pertaining to the facts and circumstances of the proceeding initiated by him have been disclosed and copies thereof annexed with the plaint, and that the plaintiff does not have other documents in its power, possession, control or custody. As per the explanation under Order 11 Rule 1 (3) a declaration on oath under this subrule shall be contained in the Statement of Truth as set out in the Appendix. Appendix I with respect to the statement of truth Page 22 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 reads as under:
''APPENDIX STATEMENT OF TRUTH (Under First Schedule, Order VI Rule 15A and Order XI Rule 3) I the deponent do hereby solemnly affirm and declare as under:
1. I am the party in the above suit and competent to swear this affidavit.
2. I am sufficiently conversant with the facts of the case and have also examined all relevant documents and records in relation thereto.
3. I say that the statements made in paragraphs are true to my knowledge and statements made in paragraphs are based on information received which I believe to be correct and statements made in paragraphs are based on legal advice.
4. I say that there is no false statement or concealment of any material fact, document or record and I have included information that is according to me, relevant for the present suit.
5. I say that all documents in my power, possession, control or custody, pertaining to the facts and circumstances of the proceedings initiated by me have been disclosed and copies thereof annexed with the plaint, Page 23 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 and that I do not have any other documents in my power, possession, control or custody.
6. I say that the above mentioned pleading comprises of a total of pages, each of which has been duly signed by me.
7. I state that the Annexures hereto are true copies of the documents referred to and relied upon by me.
8. I say that I am aware that for any false statement or concealment, I shall be liable for action taken against me under the law for the time being in force.
Place:
Date:
DEPONENT VERIFICATION I, ............................ do hereby declare that the statements made above are true to my knowledge. Verified at [place] on this [date] DEPONENT.".] Therefore, the declaration on oath shall be part of the plaint. The plaintiff has to declare on oath that all documents in its/his power, possession, control or custody, pertaining to the facts and circumstances of the Page 24 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 proceedings, initiated by him/it have been disclosed and the copies thereof annexed with the plaint, and that he does not have any other documents in his power, possession, control or custody. Therefore as such it is mandated by Order XI Rule 1 for the plaintiff to disclose and produce all the documents in his power, possession, control or custody, pertaining to the facts and circumstances of the proceedings. 7.4 However, the additional documents can be permitted to be brought on record with the leave of the court as provided in Order XI Rule 1 (4). Order XI Rule 1 (4) provides that in case of urgent filings, the plaintiff may seek leave to rely on additional documents as part of the above declaration on oath [as provided under Order 11 Rule 1 (3)] and subject to grant of such leave by Court, the plaintiff shall file such additional documents in Court, within thirty days of filing the suit, along with a declaration on oath that the plaintiff has produced all documents in its power, possession, control or custody, pertaining to the facts and circumstances of the proceedings initiated by the plaintiff and that the plaintiff does not have any other documents, in its power, possession, control or custody.
7.5 Order XI Rule 1 (5) further provides that the plaintiff shall not be allowed to rely on documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint or Page 25 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 within the extended period set out above, save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non disclosure along with the plaint. Therefore on combined reading of Order XI Rule 1 (4) read with Order XI Rule 1 (5), it emerges that (i) in case of urgent filings the plaintiff may seek leave to rely on additional documents; (ii) within thirty days of filing of the suit; (iii) making out a reasonable cause for non disclosure along with plaint.
7.6 Therefore a further thirty days time is provided to the plaintiff to place on record or file such additional documents in court and a declaration on oath is required to be filed by the plaintiff as was required as per Order XI Rule 1 (3) if for any reasonable cause for non disclosure along with the plaint, the documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint. Therefore plaintiff has to satisfy and establish a reasonable cause for non disclosure along with plaint. However, at the same time, the requirement of establishing the reasonable cause for non disclosure of the documents along with the plaint shall not be applicable if it is averred and it is the case of the plaintiff that those documents have been found subsequently and in fact were not in the plaintiff's power, possession, control or custody at the time when the plaint was filed. Therefore Order XI Rule 1 (4) and Order XI Rule 1 (5) Page 26 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 applicable to the commercial suit shall be applicable only with respect to the documents which were in plaintiff's power, possession, control or custody and not disclosed along with plaint. Therefore, the rigour of establishing the reasonable cause in non disclosure along with plaint may not arise in the case where the additional documents sought to be produced/relied upon are discovered subsequent to the filing of the plaint."
13. In light of the aforesaid amended provisions as well as the law laid down by the Hon'ble Supreme Court, it is evident that as provided under rule 10 of Order XI, save and except as provided under sub-rule 7(c)
(iii), defendant shall not be allowed to rely on documents, which were in the defendant's power, possession, control or custody and not disclosed along with the written statement or counter claim, save and except by leave of the Court and such leave shall be granted only upon the defendant establishing reasonable cause for non disclosure along Page 27 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 with the written statement or counter claim.
Order XI rule 7 of the Code of Civil Procedure specifically mandates that the
documents shall be entered in the form of a list and shall be filed along with the written statement. In case such a document is not in possession or power of the defendant,then the defendant shall offer explanation to show reasonable cause for such non disclosure at the stage of written statement. It is further provided that the documents shall not, without the leave of the Court, be received in evidence on behalf of the party at the hearing of the suit. Thus, the requirement of the filing of the documents upon which the defendant bases his defense is where the relevant materials are required to be filed on record with a written statement.
14. The purpose behind this is to clearly make the other party to the controversy aware Page 28 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 so about all the facts and documents, which are necessary for deciding the lis are placed on record before the Court proceeds to frame issues under Order XIV of Code of Civil Procedure. The plain reading of these provisions indicates the intention of the Legislature as contained in Order XI Rule 7 and rule 10 is that the Court does not permit such documents to be filed at a later stage. However, with the leave of the Court, the same can be permitted.
15. On perusal of the aforesaid provisions, it is also evident that the production of documents, even after settlement of issues by either party, can be permitted subject to satisfaction of the Court for the reasonable cause for non-production thereof at the earlier stage i.e. at the stage of filing written statement or at most before settling of the issues. The Court can receive and permit production of such evidence for the Page 29 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 reasons to be recorded thereof. Thus, the discretion vests with the Court to consider the production of documents on being satisfied with the reasonable cause, which may be offered by the party concerned.
16. In the case of Sugandhi (dead) by Lrs. and another vs. P. Rajkumar rep. By his power agent Imam Oli decided by the Apex Court on 13.10.2020 in Civil Appeal NO.3427 of 2020 has held thus:
"9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute.
Therefore, the court should take a lenient view when an application is made for production of the documents under subrule (3).
10. Coming to the present case, the defendants Page 30 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 have filed an application assigning cogent reasons for not producing the documents along with the written statement. They have stated that these documents were missing and were only traced at a later stage. It cannot be disputed that these documents are necessary for arriving at a just decision in the suit.
We are of the view that the courts below ought to have granted leave to produce these documents.
11. Therefore, for the foregoing reasons, the appeal succeeds and it is accordingly allowed. The orders impugned herein are set aside. The application (I.A. No.551 of 2018 in O.S. NO.257 of 2014) filed by the appellants defendants before the Principal SubJudge, Pudukottai, is accordingly allowed. Parties to bear their own costs."
17. In the present case, we notice that the cross-examination of the plaintiff is already over. The matter is at the stage of evidence of the defendants. The list of the documents sought to be led as evidence, which has been produced in the form of list along with Exhibit No.284, if looked into, pertains to the very transaction, which is under consideration before the trial Court. The suit pertains to the recovery of the amount Page 31 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 against the very said transactions. The explanation cum reasonable cause, which has been offered by the defendants by seeking permission of the trial Court to bring on record the documents is that such documents were forming part of the criminal cases under negotiable instrument act, certified copy of which were availed by the defendant and the same being necessary to cross examination of the plaintiff,leave of the trial court was sought for production.
18. For the aforesaid explanation offered by the original defendants being unable to place the documents sought to be produced now and not along with the written statement filed before the trial Court, this Court finds that the interest of justice and fair trial demands to grant permission for production.
19. At the same time, we find that the trial court committed error by placing reliance upon order 8 rule 1(4)(a) and order 13 rule Page 32 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 (1)(3)(a) of CPC, when the proceedings pertained to Commercial Courts act.
20. The present proceedings are arising out of the commercial suit proceedings and the intent of the legislation was for expediting the proceedings relating to the commercial transactions. However, in the peculiar facts and circumstances of the case, more particularly, considering the decision of the Hon'ble Apex Court, this Court having noticed that reasonable cause being explained, if such documents would have been taken at relevant stage, the evidence in the dispute ultimately would have been brought on the record, and ultimately the whole process to bring out the correct facts as truth is the foundation of justice, would have been served. The Court, prima facie, finds that the documents sought to be brought on record would be necessary for arriving at a just decision in the suit. Even otherwise, at the Page 33 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 stage of evidence of the original defendant, if the documents sought for are permitted to be brought on record, the plaintiff would have the right to cross-examine the defendant. Ultimately, it would be for the trial Court to accept such documents in the form of evidence after hearing learned counsel representing the parties.
21. In view of the aforesaid reasons, the present writ petition succeeds. The order impugned is quashed and set aside. The petitioner's- original defendant's prayer below Exh.284 to the extent seeking prayer for production of documents produced with the list, is allowed. Petition stands allowed accordingly. Rule made absolute to the aforesaid extent.
(MS. SONIA GOKANI, J. ) (NISHA M. THAKORE,J) SUDHIR Page 34 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022 C/SCA/15738/2022 JUDGMENT DATED: 23/09/2022 Page 35 of 35 Downloaded on : Sun Dec 25 02:31:01 IST 2022