Andhra Pradesh High Court - Amravati
M/S Cstar Engineers And Contractors vs Idmc Limited on 10 January, 2025
1
(RNT & VN,J)
C.R.P.Nos.524, 591 & 638 of 2024)
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
*THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
+ CIVIL REVISION PETITION NOS: 524, 591 and 638 of 2024
% 10.01.2025
# M/s C-Star Engineers &
Contractors(C-180), represented by its
Proprietor
......Petitioner
And:
$ IDMC Limited, represented by its
Managing Director and others
....Respondents.
!Counsel for the petitioner : Sri A.S.C.Bose
^Counsel for the respondents : Sri S.V.S.S.Siva Ram
<Gist:
>Head Note:
? Cases referred:
1. (2020) 10 SCC 706
2. (2021) 13 SCC 71
2
(RNT & VN,J)
C.R.P.Nos.524, 591 & 638 of 2024)
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CIVIL REVISION PETITION NOS: 524, 591 and 638 of 2024
DATE OF JUDGMENT PRONOUNCED: 10.01.2025
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the fair Yes/No
copy of the Judgment?
____________________
RAVI NATH TILHARI,J
__________________
NYAPATHY VIJAY,J
3
(RNT & VN,J)
C.R.P.Nos.524, 591 & 638 of 2024)
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL REVISION PETITION NOs: 524, 591 and 638 of 2024
COMMON ORDER :(per Hon'ble Sri Justice Ravi Nath Tilhari) Heard Sri A.S.C.Bose, learned counsel for the petitioner and Sri Umar Abdullah, learned counsel, representing Sri S.V.S.S.Siva Ram, learned counsel for respondent No.1-IDMC Limited, Gujarat, respondent Nos.2 and 3 are the Executive Director and the Assistant Manager representing of respondent No.1.
2. These Civil Revision Petitions filed under Article 227 of the Constitution of India are inter-related, arising out of the Common Order, dated 05.12.2023. So, are being disposed of by this Common Order.
3. The petitioner is the plaintiff in C.O.S.No.10 of 2022 ('COS') on the file of the Court of the Special Judge for Trial & Disposal of Commercial Disputes, Visakhapatnam ('the Special Judge'). The respondents are the defendants in COS.
4. The petitioner initially instituted O.S.No.9 of 2017 ('OS') on the file of the Court of the XIII Additional District Judge, Visakhapatnam. Later, 4 (RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024) it was transferred to the Court of the Special Judge and renumbered as C.O.S.10 of 2022. The COS is for a decree against the defendants for recovery of a sum of Rs.1,23,89,667.60 ps., (Rupees one crore twenty three lakhs eighty nine thousand six hundred and sixty seven and sixty paisa) with subsequent interest @24 % per annum from the date of the suit till the date of realization with some other consequential reliefs.
5. The plaintiff/petitioner filed I.A.No.450 of 2023 under Order XI Rule 1(5) of the Code of Civil Procedure, 1908 (in short 'CPC') as applicable to the Commercial Courts Act,2015, to receive thirty (30) documents. I.A.No.448 of 2023 was filed to re-open the evidence on the plaintiff's side for filing and marking of those 30 documents, and I.A.No.449 of 2023 was filed under Order XVIII Rule 17 of CPC to recall P.W.1 for filing and marking of those documents.
6. The defendants/respondents opposed the applications. They filed I.A.No.448 of 2023, denying the material allegations and requested to reject the petitioner's I.As., as misconceived and vexatious being on false and flimsy grounds and not as per the law and the procedure.
7. The learned Special Judge, by common order, dated 05.12.2023, dismissed all the three I.As. Challenging the common order, C.R.P.Nos.524, 591 and 638 of 2024 have been filed. 5
(RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024)
8. From the reading of the judgment of the learned Special Judge, it follows that the grounds for rejection of I.A.No.450 of 2023 are as under :
(1) that previously I.A.No.123 of 2023 was filed, which was allowed to receive 34 documents and out of those documents, Exs.A1 to A15, A18, A23 to A25 are the copies of the same documents, included in the 30 documents, the original documents, but the reason was not assigned for seeking reception of the original documents.
(2) that the ground of shifting was common in both the applications. In the first application, the plaintiff was under the impression that he had already filed those documents, whereas, in the later application, he presumed that 30 documents were lost, while shifting his office, and were found recently.
(3) In the notice memo, dated 13.09.2023, by which the plaintiff sought directions to the defendants to produce Form-16A for the financial years 2011-12 to 2012-13. He did not mention about most of the other documents further produced by the defendants, and he ought to have sought the production of those documents through the aforesaid notice.
(4) There was no plea that the documents now sought to be produced were not in the power, possession, control or custody of the plaintiff at the time of filing of the suit or at least till the filing of I.A.No.450 of 2023.
9. Previously, the petitioner had filed I.A.123 of 2023 to receive 34 documents, and I.A.No.122 of 2023 to recall P.W.1 for marking those 6 (RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024) documents, which were allowed on 01.05.2023. Those documents were marked as Exs.A27 to A60 on 03.05.2023.
10. Learned counsel for the petitioner submitted that in the process of the shifting of the petitioner's office, the original records were not found, and were presumed to be lost, but subsequently, could be found, recently, while searching for other records. Out of 30 documents, sought to be received, copies of some documents had already been marked as Exs.A1 to A15, A18 and A23 to A25. The petitioner wanted to file the original documents of those Exs.A1 to A15, A18 and A23 to A25. The other documents pertained to the Form No.16A, Form No.26AS, TDS certificates, bank statements and five E-mail correspondence, between the plaintiff and the defendants. Those documents were necessary and were very much essential for better adjudication of the main issue regarding the payments, to substantiate the plaintiff's case. The non-filing of those documents, previously was neither willful nor wonton. Consequently, he submitted that the learned Special Judge ought to have allowed the applications.
11. Learned counsel for the petitioner further submitted that COS was posted on 20.09.2023 for further evidence of the defendants. The plaintiffs filed two petitions I.A.Nos.404 of 2023 and another to recall and re- open for the cross-examination of P.W.1, which were allowed fixing the date on 18.10.2023 for cross-examination. On 18.10.2023 itself, I.As., were filed. He submitted that the rules of procedure are the handmade of justice. The 7 (RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024) view taken by the learned Special Judge is too technical which does not advance the cause of justice. He submitted that there is no reason for the petitioner to delay the proceedings of COS. It is his suit for recovery of amount. He placed reliance in Sugandhi (Dead) by legal representatives and another V. P.Rajkumar, represented by his power agent Imam Oli1 in support of his contentions.
12. Learned counsel for the respondent No.1 submitted that the relief could be granted only by the plaintiff's establishing reasonable cause for non-disclosure of those documents and non-filing along with the plaint. The learned Special Judge, acted within its power and jurisdiction in rejecting the applications. There was no illegality in such order. The rules of procedure are to be followed else the very object of Commercial Courts Act to expeditiously decided the COS would be defeated.
13. We have considered the aforesaid submissions advanced by the learned counsels for the parties, and perused the material on record.
14. The point that arises for our consideration is :
"Whether the learned Special Judge, is right in rejecting the I.A.Nos.448 to 450 of 2023 in COS No.10 of 2022, and the order impugned deserves interference ?"1
(2020) 10 SCC 706.
8
(RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024)
15. Order XI, Rule 1(1) to (6) CPC as amended for the Commercial Courts Act, 2015, relevant for this petition reads as follows :
"1. Disclosure and discovery of documents:- (1) Plaintiff shall file a listof 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;
(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 9 (RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024) and circumstances of the proceedings initiated by him have been disclosed and copies thereof annexed with the plaint, and that the plaintiff does not have any other documents in its power, possession, control or custody.
(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.
(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."
16. Order 11 Rule 1 Sub-rule (5) of CPC provides that the plaintiff shall not be allowed to rely on the documents, which were in the plaintiff's power, possession, control or custody, and not disclosed along with the plaint or within the extended period set out under the provisions of sub- rules, save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure 10 (RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024) along with the plaint. So, what follows from Rule 1(5), is that the documents, which were in the plaintiff's power, possession, control or custody and were not disclosed along with plaint or within the extended period, can be still allowed to be relied upon by the leave of the Court. Such leave shall be granted only upon the reasonable cause being established by the plaintiffs for non-disclosure of those documents and not filing along with the plaint.
17. In Sudhir Kumar Alias S. Baliyan V. Vinay Kumar G.B.,2 the Hon'ble Apex Court observed and held that Order 11 Rule 1 CPC as applicable to the Commercial Courts, brought about a radical change and it mandates the plaintiff to file a list of 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 11 Rule 1 is required to be followed. It was observed further that, however, the additional documents can be permitted to be brought on record with the leave of the Court as provided in Order 11 Rule 1(4) CPC, which provides that the plaintiffs shall not be allowed, inter alia, to rely on the documents which were in the plaintiffs power, possession, control or custody and not disclosed along with the plaint or within the extended period set out in Order 11 Rule 1(4) CPC, except with leave of the Court and which leave shall be granted only upon establishing the reasonable cause. The Hon'ble Apex Court further observed that Order 11 Rule 1(4) CPC, and Order 11 Rule 1(5) 2 (2021) 13 SCC 71 11 (RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024) shall be applicable only with respect to the documents, which were in plaintiffs power, possession, control or custody and not disclosed along with plaint. The rigour of establishing the reasonable cause in non-disclosure along with plaint therefore, 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.
18. Paras 9.3 to 9.6 of Sudhir Kumar (supra) reads as under :-
"9.3 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 11 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;
(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--12
(RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024)
(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 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.
(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. 13
(RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024) (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 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 sub rule (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 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 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.
14
(RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024) (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 sub rule shall be contained in the Statement of Truth as set out in the Appendix. Appendix I with respect to the statement of truth reads as under:
''APPENDIX I 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, and that I do not have any other documents in my power, possession, control or custody.
6. I say that the abovementioned pleading comprises of a total of pages, each of which has been duly signed by me.15
(RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024)
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 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.
9.4 However, the additional documents can be permitted to be bought 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.
9.5 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 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 16 (RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024) documents; (ii) within thirty days of filing of the suit; (iii) making out a reasonable cause for non disclosure along with plaint. 9.6 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) 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."
19. In Sugandhi (supra), upon which learned counsel for the petitioner placed reliance, the Hon'ble Apex Court at paragraph Nos.6 to 10 held as under:
"6. Rule 1-A of Order 8 CPC provides the procedure for production of documents by the defendant which is as under:
"1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.--(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counterclaim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.17
(RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024) (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in court by the defendant under this Rule, but, is not so produced shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this Rule shall apply to documents--
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory."
7. Sub-rule (1) mandates the defendant to produce the documents in his possession before the court and file the same along with his written statement. He must list out the documents which are in his possession or power as well as those which are not. In case the defendant does not file any document or copy thereof along with his written statement, such a document shall not be allowed to be received in evidence on behalf of the defendant at the hearing of the suit. However, this will not apply to a document produced for cross-examination of the plaintiff's witnesses or handed over to a witness merely to refresh his memory. Sub-rule (3) states that a document which is not produced at the time of filing of the written statement, shall not be received in evidence except with the leave of the court. Rule 1(1) of Order 13 CPC again makes it mandatory for the parties to produce their original documents before settlement of issues.
8. Sub-rule (3), as quoted above, provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court. The discretion conferred upon the court to grant such leave is to be exercised judiciously. While there is no straitjacket formula, this leave can be granted by the court on a good cause being shown by the defendant.
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 18 (RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024) 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 sub-rule (3).
10. Coming to the present case, the defendants 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."
20. In Sugandhi (supra) the Hon'ble Supreme Court held that the procedure is the handmade of justice. Procedural and technical hurdles shall not be allowed to come in the way of Court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adverse party, Courts must lean towards doing substantial justice rather than relying upon the procedural and technical violation. The 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 underlying truth in every dispute. Therefore, the Court should take a lenient view when an application is made for production of the documents under sub rule (3). 19
(RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024)
21. In Sugandhi's (supra), an application was filed assigning cogent reasons for not producing the documents along with the written statement. That application was filed by the defendants and it was stated that those documents were missing and were only traced at a later stage. It could not be disputed that those documents were necessary for arriving at a just decision in the suit, the Hon'ble Apex Court held that the Courts below ought to have granted leave to produce those documents.
22. Sugundhi (supra) is a case under Order 8 Rule 1-A(3) CPC. Though it is not a case under Order 11 Rule 1(5) CPC, applicable to the Commercial Courts Act, but still the law that procedure is the handmade of justice, equally holds good for Order 11, which provides for the procedure and as such is also a procedural law.
23. Applying the principle of law as in Sugandhi (supra) and Sudhir Kumar (supra), to the facts of the present case, we find that the plaintiff had stated that the documents, now sought to be filed with the leave of the Court, which were presumed to be missing during the shifting of the petitioner's office, and could be traced at a later stage. So, at the time of presentation of the plaint, it cannot be said to be in power, possession, control or custody of the plaintiff at that time. Even if it was not specifically so said, upon which the learned Special Judge has laid much emphasis to reject the applications, such a plea necessarily follows from the plea taken about missing of the document while 'shifting of office'. So, if the document 20 (RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024) was not in power, possession, control or custody of the plaintiff, the provisions of Order 11 Rule 1 (5) CPC shall not apply, as they apply to the documents in power, possession, control or custody of the plaintiff, but not disclosed at the time of the filing of the plaint.
24. Even if it be taken that, as the plaintiff did not mention that those documents were not in his power, possession, control or custody and so, they were in the plaintiff's power, possession, control or custody, which appears to be the reasoning and the view taken by the learned Special Judge, expression the 'reasonable cause' to grant leave, is of utmost importance and should have been considered, in correct perspective, liberally, to advance substantial justice, the provisions of Order 11 Rule 1 being procedural in nature.
25. The same 'shifting of office' cause was taken in I.A.No.450 of 2023. Once, that same cause was found 'reasonable cause' in the order, dated 01.05.2023, for allowing I.A.No.123 of 2023, in our view, now it could not be, that the same cause was not a 'reasonable cause', by observing that the plaintiffs "completely failed to show cause, much less reasonable, for non-disclosure of documents", as recorded in the present impugned order, rejecting I.A.No.450 of 2023.
21
(RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024)
26. Relevant part of the order, dated 01.05.2023, in I.A.No.123 of 2023 deserves to be reproduced as under :-
"8. As stated above, the purchase orders are of the years 2009 to 2012. Hence, though suit was filled in the year 2017, merely on that ground, documents cannot be rejected at this stage.
9. It is true that in para No.5 of the affidavit, deponent stated that the documents could be traced only recently while shifting his residence, and in para No.6 it is stated that due to oversight, correspondence could not be filed. In either case, fact remains that the correspondence is between the parties to the suit. The correspondence is said to be relating to the execution of the works in question. So, the correspondence appears to be relevant.
10. There seems to be no reason to disbelieve the allegation that the plaintiff shifted his residence recently. Therefore, his allegation that he could trace the documents recently need not be disbelieved.
11. Thus the documents appear to be relevant. Though they must have been in the power, control, custody and possession of the plaintiff, by the date of filing the suit, it cannot per se be a ground to reject the documents. Hence, the documents seem to be relevant and have a bearing on the suit.
12. Though Order XI Rule 14 of the Code of Civil Procedure was struck off and Order XI Rule 1(5) of Code of Civil Procedure as amended to be applicable to the commercial disputes has been written by pen on the petition, learned counsel for the 22 (RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024) respondents has submitted that in the copy of the application given to them the correction has not been carried out. It seems that it is the reason why objection relating to the provision of law has been taken in the counter.
13. Though it is submitted that there are judgments of the Hon'ble Supreme Court and Hon'ble High Courts, no citations have been filed.
14. From the above facts, it can be said that leave to receive the documents can be granted, subject to payment of costs of Rs.500/- and with liberty to the respondents to raise objections if any, to the marking of the documents, at the time of marking them.
15. Since leave to receive the documents is granted and since no counter is filed in IA.No. 122/2023, and for the reasons stated in the affidavit filed in support of IA.No.122/2023, P.W.1 can be recalled for marking the documents and for further cross-examination according to law. Points are accordingly answered.
16. In the result, IA.No.123/2023 is allowed by granting leave to receive the documents with a liberty to the respondents to raise objections, if any, to the marking of the documents at the time of marking them, subject to payment of costs of Rs.500/-; and IA.No.122/2023 is allowed by recalling P.W.1 for marking the documents and for further cross-examination by respondents as per law. No costs."23
(RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024)
27. Out of those 30 documents, for which, I.A.No.450 of 2023 was filed, copies of 19 documents (Exs.A1 to A15, A18, A23 to A25) were already filed and permitted vide order in I.A.No.123 of 2023. They were the copies of the original documents. Now, the original documents were sought to be filed of those marked documents. Once the copies of those 19 documents were already marked, the original documents could have been received by allowing the applications, particularly when those were relevant, having a bearing on the suit, as was observed, previously, in the order dated 01.05.2023. The learned Special Judge ought also to have considered the effect of not permitting the originals of the Photostat copies of those documents already permitted, that if the originals were not filed in spite of having been traced/searched out, the admissibility of those Photostat copies as secondary evidence, and resulting into ultimate effect on the merits of suit, after having previously observed that those documents were necessary for arriving at a just decision in the suit, vide order, dated 01.05.2023.
28. It was a specific case of the plaintiff/petitioner in I.A.No.450 of 2023 as well, that the documents were necessary for effective adjudication of the suit, and any finding or observation to the contrary has not been recorded in the order impugned in the present C.R.P.
29. We are of the considered view that there was reasonable cause for grant of leave and to allow the applications. The impugned order deserves to be set aside.
24
(RNT & VN,J) C.R.P.Nos.524, 591 & 638 of 2024)
30. Civil Revision Petition Nos.524, 591 and 638 of 2024 are allowed. The Common Order dated 05.12.2023 passed in I.A.Nos.448 to 450 of 2023 in C.O.S.No.10 of 2022 on the file of the Court of the Special Judge for Trial & Disposal of Commercial Disputes, Visakhapatnam, are hereby set aside. Consequently, I.A.Nos.448 to 450 of 2023 in C.O.S.No.10 of 2022 on the file of the Special Judge for Trial & Disposal of Commercial Disputes, Visakhapatnam are allowed.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
____________________
RAVI NATH TILHARI, J
__________________
NYAPATHY VIJAY,J
Date : .01.2025
Note: L.R. copy be marked
B/o.
RPD.
25
(RNT & VN,J)
C.R.P.Nos.524, 591 & 638 of 2024)
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY (ALLOWED) CIVIL REVISION PETITION NOs: 524, 591 & 638 OF 2024 Date : .01.2025 Note: L.R. copy be marked B/o.
RPD.