Rajasthan High Court - Jaipur
Rajasthan Spinning And Weaving Mills ... vs Rajasthan Textile Industries, ... on 14 July, 1986
Equivalent citations: AIR1987RAJ60, 1986(2)WLN450
ORDER S.S. Byas, J.
1. The revision is directed against an order of the District Judge, Bhilwara dated April 15, 1980, by which the plaintiff (revision-petitioner) was not permitted to file a document along with the re-joinder.
2. Very few facts need narration for the disposal of this revision. The plaintiff, which is a private limited company, instituted a suit for the recovery of a sum of Rs. 34,492.38 p. against the defendants. According to the case set-up in the plaint, the plaintiff, in pursuance to the written agreements Ex. 1, Ex. 2 and Ex. 3, despatched were cone cotton yarn to the defendants and sent the bills and Hundies through the bank. The defendants took delivery of part of the goods but failed to take delivery of the bulk of the goods. The undelivered goods were received back by the plaintiff, which it sold in the open market at the prevailing rate. In doing so, the plaintiff incurred a loss of Rs. 34,492.38 p. The suit was contested by the defendants. Issues were raised and evidence of the parties was recorded. The case was thereafter posted for final arguments. The defendants thereafter sought permission to introduce certain amendments in their written statement. The permission was granted to the defendants to amend the written statement and the plaintiff was allowed to file a re-joinder in respect of the amendments sought by the defendants. The plaintiff filed re-joinder and along with it, filed a copy of the notice on November 26, 1979. The amendment allowed to the defendants was to the effect that the goods could be sold by the plaintiff only after a notice to the defendants was served. The plaintiff, in its rejoinder, stated that notice was, in fact, given to the defendants. The District Judge did not permit the plaintiff to file a copy of that notice. Aggrieved against the said order, the plaintiff has come-up in revision.
3. I have heard the learned counsel for the parties and perused the record.
4. In assailing the impugned order, it was vehemently contended by Mr. Mohta learned counsel for the plaintiff that the District Judge crept into an error in not permitting the plaintiff to file a copy of that notice which was served on the defendants. It was argued that re-joinder is a part of the pleadings. The defendants had sought the amendment that no notice was served to them before the sale of the goods. The re-joinder was to the effect that the notice was, in fact, served on the defendants by the plaintiff. The copy of the notice was to be produced in evidence in answer to the case set-up by the defendants in their written statement. As such, the provisions of Order 7, Rule 14 or Order 13, Rule l.CP.C. are not applicable. The District Judge should have allowed the production of this document under Order 18, Rule 2, C.P.C. because it was produced in answer to the case set-up by the defendants. Reliance in support of the contention was placed on a few decisions of various High Courts. It was, on the other hand, contended by Mr. Shishodia learned counsel for the defendants that it was the duty of the plaintiff to aver in the plaint that She goods were sold after a notice to the defendants. It was nowhere mentioned in the plaint that any such notice was served. The District Judge was, therefore, correct in not allowing the plaintiff to produce the copy of the notice at the late stage. It was also argued that the copy of the notice was not free from suspicion and does not bear signatures of the person by whom it was sent. It was also argued that this Court should be slow in interfering with a discretionary order passed by the Court below during trial of a suit. I have taken the respective submissions into consideration. It may be stated at once that there is no pronouncement of this Court on the dispute involved and on the scope and object of Order 18, Rule 2, C.P.C.
5. Admittedly, the defendants were allowed the amendment in their written statement and the plaintiff was permitted to file the re-joinder. Order 8, Rule 9, C.P.C. lays down that no pleading subsequent to the written statement of a defendant other than by a defence to set-off or counter-claim shall be presented except by the leave of the Court. Thus, subsequent pleadings can be filed after seeking the permission of the Court. When a re-joinder or replication in the nature of subsequent pleadings has been filed by a party after obtaining the leave of the Court, such a re-joinder or replication becomes a part of the pleadings. Such a re-joinder or replication must then be treated as pleadings. The rejoinder or replication becomes a limb of the pleadings for all purposes.
6. In K. Nair v. Gouri Amma, 1967 Ker LT 257 it was observed that the re-joinder or replication filed with the leave of the Court becomes a paft of the pleadings and a supplement to the plaint. Such a re-joinder or replication cannot be characterised as an unwarranted pleading. Here in the instant case, the plaintiff filed the re-joinder or replication with the leave of the Court. Rather, the amendments were allowed to the defendants subject to the condition that the plaintiff will be permitted to file the re-joinder or replication in respect of the amendments allowed. Therefore, the re-joinder or replication filed by the plaintiff is now a part of the plaint for all purposes.
7. The replication or re-joinder filed by the plaintiff was to meet the defendants' case that no notice prior to the selling of the goods was served on them by the plaintiff.
8. The plaintiff filed the copy of the notice along with the re-joinder in answer to the case set-up by the defendants. As such, the provisions of Order 7, Rule 14 or Order 13, Rule I or Order 13, Rule 2, C.P.C. are not applicable. The proper rule applicable for such a document filed along with the re-joinder or replication is Rule 18(2) of Order 7, C.P.C.
9. A combined reading of Order 7, Rule 14, Order 13, Rule 1 and Order 13. Rule. 2, C.P.C., shows that the plaintiff should produce and deliver in the Court with the plaint the documents on which he sues, if they are in his possession or power. The documents, on which he relies in support of his claim, need not be produced along with the plaint, but a list thereof should be filed with the plaint. In that list, the plaintiff need mention only those documents on which he relies for his claim. He need not anticipate the defence case and mention in the list such documents as may form an answer to such a defence. The parties should produce it before the settlement of issues all the documents of every description etc. Thus, the documents, which have been shown in the list with the plaint, should be produced at least when the issues are settled. Thereafter the parties can produce the documents under Order 13, Rule 2, C.P.C. only with the permission of the Court.
10. Sub-rule (2) of Rule 18 of Order 7, C.P.C. lays down in explicit terms that the provisions of Order 7, Rule 14 or Order 7, Rule 18(1), C.P.C, which have been discussed above, do not apply to documents produced in answer to any case set-up by the defendant. In other words, Sub-rule (2) of Rule 18 of Order 7 acts as a proviso or exception to the provisions of Order 7, Rule 14 or Order 7, Rule 18(1) or Order 13, Rule 1, C.P.C. Thus, where documents are produced in answer to any case set-up by the defendant, the aforesaid provisions do not apply and the parties are entitled to file the document as of right. In Gappa Mal v. Piaralal, AIR 1916 Lah 262, it was observed that the provisions of Order 7, Rule 14, C.P.C. do not apply in respect of a document produced to rebut a plea raised by the defendant. A document, in order to rebut the plea raised by the defendant, can be produced in the course of the trial. The same view was expressed in Puransingh v. Mathura Das, AIR 1934 Lah 126 and it was observed that a party can file a document under Order 7. Rule 18(2), C.P.C. without the leave of the Court in order to meet the case set up by the defendant. In Manbodh Missir v. Bhoiro Missir, AIR 1922 Pat 569 it was observed that by Clause (ii) of Rule 18 of Order 7. C.P.C, nothing in Rule 14 applies to a document produced in answer to any case set-up by the defendant.
11. Reverting back to the case in hand, the plaintiff has filed the copy of the notice along with his re-joinder in answer to the case set-up by the defendants by amending their written statement. The plaintiff could not file the copy of the notice along with the plaint because it was not necessary for it to do so. The plaintiff could not anticipate the defence set up by the defendants by seeking the amendments in their written statement at the fag end of the trial. There was, thus, no need for the plaintiff to file the copy of the notice before the settlement of the issues. I am of the view that the provisions of Sub-rule (2) of Rule 18 of Order 7, C.P.C. act as a proviso and exception to the provisions of Order 7, Rule 14, Order 7, Rule18(1), Order 13, Rule 1 and Order 13, Rule 2 of the Code of Civil Procedure. When a document is filed in answer to any case setup by the defendants, the plaintiff has a right to do so and no leave of the Court is required. He has a right to produce such a document under the provisions of Order 7, Rule 18(2), C.P.C.
12. Since the copy of the notice was filed by the plaintiff along with the re-joinder or replication in answer to the case set-up by the defendants, no leave of the Court was required. The learned District Judge was, thus, in error in not permitting the plaintiff to file the aforesaid document. The impugned order should not be, therefore, sustained.
13. It is true that the discretionary orders passed by the trial Court should not be lightly interfered with. But when the order is perverse or is contrary to the provisions of law, interference" becomes inevitable for ends of justice.
14. In the result, the plaintiffs revision is allowed and the impugned order of the District Judge, Bhilwara dated April 15, 1980 is set aside. The plaintiff is allowed to produce the copy of the notice, which he had filed along , with his re-joinder. It is clarified that this order has nothing to do with the proof of the copy of the notice. Looking to the dispute involved, I leave the parties to bear their own costs of this revision.