Madras High Court
S. Mohammad Ali vs Basheer Ahmed, Rep. By His Power Agent ... on 19 January, 2001
Equivalent citations: (2001)1MLJ812
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER
1. The revision petitioner is the petitioner in I.A. No. 397 of 1999 and the third defendant in O.S.No.32 of 1998 on the file of the learned Additional Subordinate Judge, Mayiladuthurai.
2. Before the settlement of issues between the parties in the above suit, the revision petitioner filed I.A. No.397 of 1999 under Order 13, Rule 2 of the Code of Civil Procedure, seeking permission to produce the documents that are provided in the list accompanied in the above application, submitting that the same could not be traced earlier and therefore, could not be produced. However, the respondent/plaintiff objected the permission on the grounds that the first document was not registered and therefore, no right could flow under the same in favour of the revision petitioner; that the second document was a fabricated one for the purpose of the case and the respondent/plaintiff is not a party in the alleged arrangement made under the second document: and that, in any event, the documents 3 to 8 are not related to the suit properties.
3. Learned Additional Subordinate Judge, Mayiladuthurai, by order dated 6.12.1999, rejected the permission holding that the revision petitioner ought to have produced the said documents even at the time of presenting the written statement as per Order 8, Rule 8A of the Civil Procedure Code and that the revision petitioner had not shown any good cause for permitting him to produce the documents. Hence, the above revision petition.
4. Mr.A. Muthukumar, learned counsel for the petitioner contends that the revision petitioner could not produce the documents in question along with the written statement as per Order 8, Rule 8A of the Civil Procedure Code, as the same could not be traced at that time. According to Mr.A.Muthukumar, the reason that the documents could not be traced at the time of filing the written statement would be a good and sufficient reason to permit the petitioner to produce the documents.
5. Per contra, Mr.Rangarathinam, learned counsel for the respondent, placing reliance on the decisions in K.Saradha Devi v. S.Sivaramaraju, , Agastin v. Devasagayan, and Krishnamurtrhy Chettiar v. Thangaraju Padayatchi, 2000 (2) MLJ 827, contends that the delay in producing the documents cannot be condoned, if the reasons are absurd and capricious, particularly when the documents are not permissible in law.
6. In this regard, I am obliged to refer Sub-Rule (1) of Rule 8A of Order 8 and Order 13, Rules 1 and 2 of the Civil Procedure Code, which read as follows:
Order 8, Rule 8A:- Duty of defendant to produce documents upon which relief is claimed by him:- (1) Where a defendant bases his defence upon a document in his possession or power, he shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document or a copy thereof, to be filed with the written statement.
Order 13, Rule 1:- Documentary evidence to be produced (at or before the settlement of issues):- (1) The parties or their pleaders shall produce, (at or before the settlement of issues), all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.
(2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
2. Effect of non-production of documents;- (1) No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing.
(2) Noting in sub-rule (1) shall apply to documents:- (a) produced for the cross-examination of the witnesses of the other party or (b) handed over to a witness merely to refresh his memory.
7. No doubt, as per sub-rule (1) of Rule 8A of Order 8 of the Civil Procedure Code, the defendant is under obligation to produce any document in his possession or power which he claims as a basis of his defence at the time of presenting his written statement. However, sub-rule 2 of Rule 8A of Order 8 of the Civil Procedure Code further provides for production of a document, which ought to have been produced by the defendant, but was not so produced, shall not, without the leave of the Court at the hearing of the suit. Thus, sub-rule (2) of Rule 8A of Order 8 of the Civil Procedure Code bars the production of a document which ought to have been filed at the time of presenting the written statement, but was not so produced, without the leave of the Court. On the other hand, there is no bar for production of the document, which ought to have been produced by the defendant at the time of presenting the written statement, but was not so produced, with the leave of the Court at the hearing of the suit.
8. Notwithstanding the right to produce the document at the hearing of the suit, of course, with the leave of the Court conferred on the defendant in Order 8, Rule 8A, Order 13 of the Civil Procedure Code further enables the parties or the pleader to produce, at or before the settlement of issues, all the documentary evidence of every description in their possession or power, on which they intend to rely and which has not already been filed in Court and all documents, which the Court has ordered to be produced.
9. But no such documentary evidence shall be received at any subsequent stage of the proceedings, unless good cause is shown to the satisfaction of the Court for non-production thereof.
10. The right to produce the documents thus conferred either under Order 8, Rule 8A sub clause (1) or under Order 13, Rule 1(1) of the Civil Procedure Code referred to above, does not stand in the way of right to produce the documents that are sought to be produced during the cross examination of the witnesses of other side, as provided under Order 8, Rule 8(A) sub-clause (3) and Order 13(3) of the Civil Procedure Code.
11. In the instant case, the revision petitioner/third defendant in suit proposed to produce certain documents, which he intend to rely, rightly invoking Order 13, Rule 1 of the Civil Procedure Code, wherein he is obliged to satisfy the Court as to good cause for the non-production of the same earlier contending that the same could not be traced earlier.
12. But as referred to earlier, the respondent herein had objected the application in l.A.No.397 of 1999 only on the relevancy and admissibility of the said documents.
13. Learned Additional Subordinate Judge, Mayiladuthurai, without appreciating the facts that even though the respondent herein had not disputed the cause for not producing the same earlier, dismissed the application in I.A.No.397 of 1999 filed under Order 13, Rule 1 of the Civil Procedure Code, presumably carried away by the objections of the respondent herein that the said documents are either irrelevant or inadmissible.
14. In my considered opinion, while deciding on such good cause contemplated under Order 13, Rule 2 of the Civil Procedure Code, it is not permissible for the Court to go into the admissibility or otherwise of the documents in question, which are sought to be produced under Order 13, Rule 2 of the Civil Procedure Code.
15. The decisions in Agastin v. Devasagayan, and Krishnamurthy Chettiar v. Thangaraju Padayatchi, 2000 (2) MLJ 827 relied upon by the learned counsel for the respondent are not relevant to the issue raised in the above revision petition, as the said decisions relate to the admissibility of the documents in evidence, but not with regard to the production of the documents under Order 13, Rule 2 of the Civil Procedure Code.
16. For the purpose of Order 13, Rule 2 of the Civil Procedure Code, it is suffice to satisfy the Court as to the good and sufficient cause for delay in producing the documents. In other words, the reason for such delay should not be either capricious nor absurd. In K.Saradha Devi v. Sivaramaraju, , it is held that the words 'good cause' found in Rule 2 to Order 13 of the Civil Procedure Code should be liberally construed to serve the ends of justice.
17. The whole implication of Order 13, Rule 2 of the Civil Procedure Code is to prevent the parties from producing the documents after a particular stage, viz., after the settlement of issues or requiring them to explain 'good cause' for the delay, if any, in producing the document. In other words, in order to serve the ends of justice, the production of document may be accepted by the Court by condoning the delay in producing the same, depending upon the facts and circumstances of each case, subject to production of the same by way of evidence at the relevant time. But merely permitting the production of documents cannot be construed that the documents thus permitted to be produced under Order 13, Rule 2 of the Civil Procedure Code are automatically admissible in law.
18. In the instant case, admittedly, the issues are not settled.
19. The reason for the delay, according to the revision petitioner, is that the documents sought to be produced were not traceable. The revision petitioner has specifically averred so in his affidavit filed in support of the above I.A. However, the respondent had not denied the same in his counter affidavit except by saying that the documents sought to be produced are not admissible for one reason or other. The inability of the revision petitioner to trace the documents and to produce the same at the earlier stage, viz., at the time of presenting the written statement is not at all disputed or denied by the respondent in his counter affidavit.
20. Inability to trace the documents and to produce the same at the time of presenting the written statement, in the experience of human beings, are neither improbable nor strange and if that be so, such reasons are neither absurd nor capricious. But, the learned Additional Subordinate Judge while refusing permission to the petitioner to produce the documents sought to be produced under Order 13, Rules 1 and 2 of the Civil Procedure Code, in his order dated 6.10.99, instead of weighing whether the reason, viz., the revision petitioner could not produce the documents earlier had driven himself to decide as to the admissibility of the said documents, which in my considered opinion, is not permissible for the Court while exercising the power under Rules 1 and 2 of Order 13 of the Civil Procedure Code, as condoning of delay in producing the documents belatedly is not beyond the scope of Order 13, Rule 2 of the Civil Procedure Code. On the other hand, expressing any opinion as to the admissibility of the said documents at that stage is beyond the scope of Order 13, Rule 2 of the Civil Procedure Code.
21. Therefore, I am obliged to set aside the order of the learned Additional Subordinate Judge, Mayiladuthurai and permit the petitioner to produce the documents enclosed in the list along with I.A.No.397 of 1999, making it clear that production of the same will not automatically be construed, as admission of the same.
Consequently, this civil revision petition is allowed with the above observation. No costs, Consequently, C.M.P.No.2570 of 2000 is closed.