Delhi High Court
Asman Investment Ltd. vs K.L. Suneja & Anr. on 3 March, 1998
Equivalent citations: 1998IIIAD(DELHI)578, AIR1998DELHI204, 72(1998)DLT286, 1998(44)DRJ791, (1998)119PLR7, 1998RLR297, AIR 1998 DELHI 204, 1998 (3) ADDEL 578, (1998) 44 DRJ 791, (1998) 3 RECCIVR 22, (1999) 2 CIVILCOURTC 443, (1998) 119 PUN LR 7, (1998) 4 CIVLJ 656, (1998) 3 CURCC 82, (1998) 72 DLT 286
Author: D.K. Jain
Bench: D.K. Jain
JUDGMENT D.K. Jain, J.
1. This order will dispose of plaintiff's application under Order 13 Rule 2, read with section 151, CPC, seeking leave of the Court to file copies of the Resolution dated 27th June, 1989 and General Power of Attorney dated 10th August 1989, not filed either with the plaint or on settlement of issues.
2. The facts giving rise to the application are that the plaintiff, a public limited Company, filed the present suit for specific performance of the agreement to sell dated 13th August, 1986, which it claims to have entered into with the defendants in respect of property commonly known as 8, Community Centre, Saket, New Delhi 110017. The plaint was signed and the suit was filed on behalf of the plaintiff Company, by one Kamal Jhaveri in his capacity as the Power of Attorney holder of the plaintiff, having been authorised to do so by a resolution passed by the Board of Directors on 27th June, 1989. In the plaint, it is averred that under the said agreement to sell the defendants agreed to sell the land and the building for a consideration of Rs. 53,50,000/ a sum of Rs. 5 lacs was paid as part price by means of a cheque and the balance amount of Rs. 48,50,000/ was payable as provided in the agreement. In addition to the said agreement to sell, a lease deed was also executed between the parties and under the said lease the plaintiff was put in, possession of the property.
3. The suit was resisted by the defendants, inter alia, on the plea that the plaint was not signed or the suit instituted by a competent person. It was denied that the said Kamal Jhaveri had been authorised to institute the suit, sign and verify the pleadings. The factum and validity of the alleged Resolution dated 27th June, 1989 and the Power of Attorney purported to be in favour of Kamal Jhaveri was also denied. On the basis of the pleadings, issues were framed on 9th May, 1994 and one of the issues so framed was:
"Whether the suit has been instituted, signed and verified by a duly authorised person?"
4. While framing issues, the Court directed that before the next date the parties should file their affidavits of discovery of documents and may file such documents which are in their power and possession. After admission/denial of the documents, the suit was directed to be fisted for trial. On 12th March, 1996, statement of one of the plaintiff's witnesses was recorded partly. No further evidence could be recorded till 10th November, 1997. On the said date, the said Kamal Jhaveri appeared as PW-3 and original Minutes Book containing the affronted resolution was produced. During the course of his examination in chief, a copy of the resolution dated 27th June, 1989 in the Minutes B;ok was sought to be filed. This was objected to by learned Counsel for the defendant on the ground that the same had neither been filed with the plaint nor thereafter despite sufficient opportunity to produce the same earlier and in any case no application seeking permission to produce it had been filed by the plaintiff showing any cause for its non-production at an earlier stage. Accordingly, at the request of Counsel for the plaintiff, recording of further statement of PW-3 was deferred. It is under these circumstances that the present application has been filed.
In the application, seeking leave to produce the two documents, it has been stated that copies of the said Resolution, dated 27th June, 1989 and the General Power of Attorney, dated 10th August, 1989 could not be filed earlier due to inadvertence and oversight; that the error in this regard was a human error and not one which could be said to be an afterthought; that the resolution was referred to in the plaint itself; the same is not of a class of documents that creates evidence of defendant's liability; there could be no valid objection or injustice caused to the defendant if the resolution is allowed to be produced and that if not allowed, great injustice will be caused to the plaintiff.
5. The application is resisted by the defendants. In the reply filed, it has been stated that the application does not disclose any good/sufficient cause for the non-production of the said documents earlier and as such the same merits dismissal. It is alleged that some resolution and some power of Attorney have been prepared and fabricated by the plaintiff to make up the lacuna, being a fatal defect in the institution and filing of the present suit.
6. I have heard Mr. Arun Mohan, learned Senior Counsel for the plaintiff/applicant and Mr. L.R. Gupta, learned Senior Counsel for the defendants.
7. Mr. Arun Mohan has submitted that a "good cause" has to be construed in the setting it is placed and also bearing in mind the nature of the document sought to be produced. His submission is that in the present case, the dispute is not between two groups in a (company or about authorisation of the signatory to the plaint as such but the dispute basically is about the survival of the agreement to sell dated 13th August, 1986. He maintains that the resolution and the General Power of Attorney, copies whereof are sought to be produced, having been firstly identified and spelt out in the plaint and secondly not being one of a class of documents which creates evidence of defendant's liability, could not be viewed with suspicion and in the interests of justice, delay in filing the said documents may be condoned and permission to file the same be granted.
8. On the other hand, Mr. L.R. Gupta, submitted that all the three factors namely, inadvertence, oversight and human error, pleaded as cause for non-production of the said documents at an earlier stage being acts of gross negligence cannot be said to be a 'good or sufficient cause". Learned Counsel has also placed reliance on the decision of the Supreme Court in Arjun Singh Vs. Mohinder Kumar & Ors., wherein it has been observed that there is no material difference between the phrases "good cause" and 'sufficient cause".
9. I have considered the rival contentions. Rule 1 of Order 13 of the Code of Civil Procedure requires the parties to file the documentary evidence, in their possession or power before the settlement of issues. Rule 2 of Order 13 prohibits such documents not produced at that stage to be received at a subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for non-production thereof and the Court receiving such evidence shall record the reasons for doing so. If the cause shown is good, the Court must permit the applicant to produce the same. The provision is not meant to penalise the parties. The object merely is to prevent belated production of documents, so that it may not work injustice to the defendant. It, however, does not provide for any particular ritualistic formula in which the Order of the Court has to be passed. The said order confers a discretion on the Court to allow production of such documents at any subsequent stage of the proceedings if good cause is shown to its satisfaction for non-production thereof. (See Madan Gopal Kanodia Vs. Mamraj Maniram & Ors., ). Of course, the Court is entitled to consider not only the reasons for non-production of a document sought to be produced but also its authenticity.
10. No doubt gross negligence cannot be a good cause. One cannot put premium on it. But there is a line of distinction, fine though, in gross negligence and mere inadvertence or oversight which may be human error caused by lack of professional advice or directive or party's lack of knowledge of the urgency of a document being filed early or oblivion of consequences of not doing so. Where the delay in filing is not with a design or motivated, it may be inadvertent and not gross negligence.
11. In the light of the above, the point for consideration is whether there is good/sufficient cause to condone the delay in production of the affronted two documents.
12. The phrase "good cause" means adequate, sound and genuine reason and it depends upon the facts and circumstances of individual case. There is no set formula to determine as to what constitutes a good cause. Whether a good or sufficient cause is made out depends on the facts of each case. In the present case the two documents in question, purport to be a Board Resolu-
tion dated 27th June, 1989 and,the General Power of Attorney dated 10th August, 1989. The resolution, authorising Kamal Jhaveri to institute the suit and other legal proceedings and to sign and verify the plaint, written statements, pleadings etc., forms part of the Minutes of Meeting of Board of Directors held on 27th June, 1989, when certain other decisions also seem to have been taken by the Board.
13. The Power of Attorney dated 10th August, 1989, bears an endorsement regarding its execution pursuant to Board's Resolution dated 27th June, 1989 and its registration of that date Considering the nature of the two documents and the setting in which these are placed, there seems to be no apparent reason for the plaintiff to withhold these two documents or to infer, prima facie, on the face of the documents that these are fabricated. It is no doubt true that the plaintiff has been negligent in not producing the said documents at an earlier stage but the question for consideration is whether the negligence is of such a magnitude or nature which cannot, considering the setting and circumstances of the case, be condoned and the plea that the default occurred due to inadvertence, oversight and human error be rejected as no good cause. Considering the fact that the documents sought to be produced have no relevance to the dispute on the merits of the claim in the suit, viz., whether the agreement to sell survives and the fact that in para 1 of the plaint there is a clear reference to the Resolu-
tion of Board of Directors dated 27th June, 1989, and the general power of atomic dated 10th August, 1989, the non-filing of the copies of the same at an earlier stage could not be said to be motivated and in all probability was due to sheer inadvertence and oversight. At this stage the question is of leave to produce. The legal efficacy to be attached to them will depend on host of circumstances that may be brought out in cross-examination of the plaintiff's witness(s) at the trial, which obviously has no relevance at this stage. Denial of their production at this stage on the ground of negligence to produce at an earlier stage, as not a "good cause", in the circumstances of the case, will be too harsh and would be a travesty of justice. A litigant should not be made to suffer for fault of its advisors or functionaries, responsible for the lapse.
14. I am, therefore, satisfied that there was a good cause for non-production of the said two documents at an earlier stage. After all, the rules of procedure are meant to advance the cause of justice and not to thwart it. Support to this view is also lent by a recent decision of Supreme Court in United Bank of India Vs. Naresh Kumar & Ors., wherein, while dealing with almost a similar situation where the plaintiff had failed to produce formal letter of authority or Power of Attorney in favour of the person who had signed and verified the pleadings on behalf of the Corporation, resulting in the Trial Court dismissing the suit on the ground that the plaintiff had failed to prove the issue with regard to signing and verification of the plaint by a competent person, the Supreme Court observed that "Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable."
15. As a result of above discussion, I allow the application and permit the plaintiff to produce the said two documents, but in view of the delay, subject to payment of costs of Rs. 3,000/-.
Application allowed with costs.