Patna High Court
Sarbanand Paswan vs Mahendra Prasad Singh And Ors. on 20 November, 1998
Equivalent citations: AIR1999PAT108, 1999(47)BLJR300, AIR 1999 PATNA 108, (1999) 1 BLJ 212, (1999) 1 PAT LJR 118, (1999) 3 CURCC 117, 1999 BLJR 1 300
JUDGMENT J.N. Dubey, J.
1. This revision is directed against the order dated 20-9-1991 of the Additional Munsif, Danapur passed in Title Suit No. 51/88-55/89 whereby he recalled his earlier order passed under Order 13, Rule 2, CPC.
2. It appears that on 14-4-1988 plaintiff-opposite parties filed Title Suit No. 51 of 1988 in the Court of Sub-Judge, Danapur for declaration of his title in the land in dispute without impleading the applicant as party. On 28-4-1988, the applicant filed application for impleadment in the suit which was allowed. On 30-11-1988, he filed written statement denying the claim of the plaintiff-opposite parties. On 16-12-1988, he filed his documentary evidence. On 29-8-1991, he filed an application under Order 13, Rule 2, CPC for bringing on record certain documents which were not available with him earlier which was allowed on the same day after hearing counsel for the applicant. On 3-9-1991, the opposite parties filed an application for recalling the order dated 29-8-1991 on the ground that it was passed without affording them opportunity of hearing and that no case for admitting additional documentary evidence under Order 13, Rule 2, CPC was made out. On 20-9-1991, the Court below recalled the order dated 29-8-199! and rejected the application of the applicant for admitting additional documentary evidence. Feeling aggrieved, the applicant has filed this revision.
3. On27-2-1992 a learned single Judge of this Court while admitting the revision, referred it to the Division Bench for consideration. The relevant portion of the order of the learned single Judge is quoted below :
"Mr. Trivedi, learned counsel appearing for the petitioner, submits that since the genuineness of the document has not been disputed, therefore, even if the party inlending to produce the document fails to show any good cause for not producing the same within the time prescribed under the provisions of Rule I still it is incumbent upon the trial Court to admit the documents. In support of his submission, he has placed reliance on a Bench decisionof this Court reported in AIR 1928 Patna 537. It has been followed by Hon'ble singe Judge reported in AIR 1974 Patna 278. In the latter case, it has been held that sub-rule (2) of Order 13 is in two parts, namely, (1) the documentary evidence can be admitted at the stage subsequent to the stage prescribed under Rule 1, if good cause is shown, and (II) the Court can receive the document even for any other reason to be recorded by it.
In my view, this matter needs to be reconsidered by a Division Bench in view of the mandatory language of sub-rule (2), which reads as under:
"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 I 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."
If the interpretation of the petitioner is accepted then the rule 2 itself becomes nugatory. While interpreting the provision it has also to be borne in mind that production of documentary evidence at belated stage will not only prejudice to the other parties but will also cause delay in disposing of the proceedings.
In my opinion, prima facie a bare reading of the aforesaid provision clearly shows that the Court can exercise its jurisdiction in admitting documents at a belated stage only if it is shown to its satisfaction that there was good cause for not producing the documents at the stage prescribed under rule 1."
4. Heard the learned counsel for the applicant and perused the record. None has appeared on behalf of the opposile parties despite service.
5. Learned counsel for the applicant contended that the Court below was not legally justified in rejecting the application of the applicant under Order 13, Rule 2, CPC. According to him, the decisions of this Court in AIR 1928 Patna 537, Sir Hari Ram Goenka v. Lachmi Singh and AIR 1974 Patna 278, Parsuram Dubey v. Mahanth Laxman Das do not require reconsideration.
6. I find subslance in the argument of the learned counsel. It is now well settled that the provisions of Order 13, Rule 2, CPC should be liberally construed.
7. In Sir Hari Ram Goenka v. Lachmi Singh, AIR 1928 Patna 537, a Division Bench of this Court held as under (at page 538):
"..... Order 13, Rule 1 was enacted to secure a fair trial of a case, not to penalize parties for not producing documents in time. Its main object was to prevent parties from manufacturing evidence pending the trial to meet unexpected exigencies. Now, if there is no ground for believing that the document tendered has been manufactured, then, in my opinion, the Judge exercises his discretion improperly in rejecting a document on the ground that it was produced too late, for, as I have said, the rules to be found in the Code of Civil Procedure were not enacted for penalizing the parties, but to secure a fair trial of the case....."
8. In Kumar Gopika Raman Rey v. Atal Singh, AIR 1929 PC 99, the Privy Council observed (at pages 102 and 103):
".......... Further, under Order 13, the parties at the first hearing must produce the documents in their possession or power on which they rely, and under Rule 2 no document "which should have been but has not been produced in accordance with the requirement of this rule" is to be admitted in evidence without the leave of the court: It is apparently under this rule that the subordinate Judge acted, as he observes that, on 8th July, 1913, at the settlement of issues, which is at the first hearing, the parties were ordered to put in their documents within seven days.
This rule of exclusion, however, only comes into operation when the documents on which the parties rely should have been, but were not, produced at the first hearing. Now, according to the evidence at the date of the first hearing, these documents were not in the possession or power of the plaintiff, and the plaintiff and his advisors did not know of their existence so as to enable them to inspect them and form an opinion as to whether they would rely on them or not. In these circumstances, it cannot be said that they should have been produced at the first hearing and, therefore, the rule does not authorise the exclusion. Further as has been held in India, even where the rules of exclusion apply and the documents cannot be filed without the leave of the court, that leave should not ordinarily be refused where the documents are official records of undoubted authenticity which may assist the Court to decide rightly the issue before it."
9. In Parsuram Dubey v. Mahanth Laxman Das, AIR 1974 Patna 278, a single Judge of this Court relying on Sir Hari Ram Goenka, AIR 1928 Patna 537 (supra) held that the Court, besides receiving a document and accepting the cause for the delay, as shown by the party, has yet to apply its mind to find out as to whether the document should be admitted and in doing so it has of necessity to find out, even though in a summary manner, that prima facie the document was a genuine one and that it has relevancy to the case.
1O. Similarly, in Billa Jagan Mohan Reddy v. Billa Sanjeeva Reddy, (1994) 4 SCC 659, the Supreme Court held:
"It is clear from its bare reading that the parties or their counsel shall be required to produce all the documentary evidence in their possession or power which they intend to rely on to establish their right along with pleadings or before settlement of the issues. The Court is enjoined under Sub-rule (2) to receive such documents provided they are accompanied by an accurate list thereof prepared in the prescribed form. If they are not in the party's possession or custody, it shall be filed by the party along with an application to condone the delay in filing them. The explanation for delay is not as rigorous as one filed under Section 5 of the Limitation Act. These documents were not in the possession or custody of the appellants, but they have obtained certified copies from the Revenue Authorities and sought to be produced. It is undoubted that there is a delay in production of the said documents. But the trial Court had stated that the application was filed at the stage of arguments, seeking to produce those documents and sought to rely upon the documents. It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the Court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27, CPC the appellate Court would receive the documents and consider their effect thereof. When such is the position, when the documents are sought to be produced in the trial Court, before the arguments are completed, normally they may be received; an opportunity given to prove them and rebuttal if any and their relevance and effect they may have, be considered in deciding the issues arising in the controversy. Under these circumstances, the trial Court was not justified in refusing to condone the delay and to receive the documents. The High Court also committed the same error in not considering the effect in this behalf in the right perspective. The orders are accordingly set aside and the delay in filing the documents is condoned. The trial Court is directed to receive the documents, give an opportunity to the parties to prove the documents and if necessary, opportunity to the respondent to rebut the same and then dispose of the reference according to law."
11. In my opinion, the decisions of this Court in Sir Hari Ram Goenka, (AIR 1928 Patna 537) and Parsuram Dubey, (AIR 1974 Patna 278) (supra) are in consonance with the view taken by the Privy Council in Kumar Gopika Raman Roy, AIR 1929 PC 99 (supra) and the Supreme Court in Billa Jagan Mohan Reddy, (1994) 4 SCC 659 (supra) and as such, require no reconsideration.
12. In my view, the Court below was not legally justified in recalling its order dated 29-8-1991 and rejecting the application filed by the applicant under Order 13, Rule 2, CPC for admitting additional documentary evidence. Firstly, if these documents were not in the possession of the applicant, as claimed by him then the question of delay in filing them did not arise and secondly, even if there was some delay in filing the said documents, the Court should have taken lenient view in condoning it as held by the Supreme Court.
13. In the result, the revision succeeds, and is allowed and the order of the Court below is set aside.
No order as to costs.
Ashish N. Trivedi, J.
14. I agree.