Appeal No.86 of 2008,Chamber Summons No.1689 of 2007,Suit No.296 of 1979

29th August, 2008

Petitioner Counsel: Mr. D. D. MADAN,M/s. Vigil Juris
Respondent Counsel: Ms. RAJANI IYER,Mr. C. S. BALSARA,M/s. K. Ashar & Co.

Cases Cited:
Soma Devi Vs. Guin Devi, AIR 2003 HP 158 [Para 6]
Kanhaiya Lal Manchadiya Vs. Lalchand Baddani, AIR 1988 Raj. 181 [Para 6]
Kejriwal Enterprises Vs. General Manager, Ordinance Factory, AIR 2004 Cal. 225 [Para 10]
Ghanshyam Dass Vs. Dominion of India, (1984)3 SCC 46 [Para 11]
Billa Jagan Mohan Reddy Vs. Billa Sanjeev Reddy, (1994)4 SCC 659 [Para 11]

JUDGMENT

V. M. KANADE, J.:- The appellants are the original plaintiffs and the respondents are the original defendants. For the sake of convenience of the parties, they shall be referred to as plaintiffs and defendants.

2. The plaintiffs have challenged an order passed by the learned Single Judge dated 15th January, 2008 in Chamber Summons No.1689 of 2007. By the said order, the learned Single Judge was pleased to allow the Chamber Summons which is taken out by the defendants seeking liberty to lead evidence and to place on record all documents referred to in the affidavit of documents which was filed by the defendants. Grievance of the plaintiffs is that after they had led their evidence, the defendants had specifically informed the Court that they did not wish to lead any evidence. It is the contention of the plaintiffs that after having taken a stand not to lead evidence, it was not open for the defendants to subsequently file application seeking permission of the court to lead evidence. In order to appreciate the rival contention, it is necessary to state the brief facts of the case :-

3. Original plaintiffs have filed a suit for specific performance on 16th January, 1979. On 25th March, 1980, all the defendants had filed their written statement. In February, 1995, an affidavit of documents was filed by the defendants giving a list of 59 documents which were referred to and relied on by the defendants. Sometime in July, 2003, the original defendant no.1 died and defendant nos.2 and 3 retired and therefore, the present defendants were substituted in their place. On 2nd August, 2003, they filed their written statement. On 16th June, 2003, an affidavit of plaintiff no.3 was filed in lieu of examination-in-chief. Seven issues were framed by the Court on 28th August, 2003. The plaintiff no.1 filed his affidavit of evidence in lieu of examination-in-chief on 25th September, 2003. After his evidence was over, the plaintiffs closed their case. The defendants through their Counsel made a statement that they did not wish to lead evidence.

4. Matter was fixed for hearing and final disposal and during the course of hearing, the plaintiffs were advised to amend their plaint. Accordingly, they took out Chamber Summons No.262/2007 for adding para 12a to the plaint. This Chamber Summons was allowed by the learned Single Judge by order dated 16th June, 2007 and direction was given to both the parties that they were at liberty to lead evidence if advised and necessary, on the basis of pleas raised in the amended plaint as well as the written statement.

5. Thereafter, the defendants took out Chamber Summons No.1689/2007 allowing them to lead detailed evidence on the ground that the documents were lost and now they were traced and therefore, permission was sought to lead evidence and bring on record the original documents. The learned Single Judge by order dated 15th January, 2008 allowed the Chamber Summons.

6. Shri. Madan, learned Senior Counsel appearing for the plaintiffs submitted that the defendants once having taken a decision not to lead evidence, ought not to have been permitted to take an about turn and seek permission to lead evidence. He submitted that after the plaintiffs were permitted to amend the plaint, the learned Single Judge by his order dated 16th June, 2007 has permitted the parties to lead evidence only on the amended plaint para 12a and amended written statement, if any. He submitted that the defendants, therefore, ought not to have been granted permission to lead evidence in respect of the entire case. It is submitted that the grounds mentioned in the affidavit in support of the Chamber Summons were not sufficient to make out a case that the defendants could not produce the said documents earlier. He submitted that the documents were referred to in the affidavit of documents filed by the defendants in 1995 and though the documents were referred to 1995, they chose not to lead evidence. He submitted that the grounds taken in the Chamber Summons that the defendants were advised by the solicitors not to lead evidence and therefore, at the given time, the evidence was not led and subsequently on taking proper legal advice and after having traced the original documents, the application was made, could not be a ground for permitting the defendants to lead evidence and bring on record the said documents. He relied on two judgments one of the Himachal Pradesh High Court in the case of Soma Devi, Petitioner Vs. Guin Devi and others, Respondents, reported in AIR 2003 HIMACHAL PRADESH 158 and judgment of the Rajasthan High Court in the case of Kanhaiya Lal Manchandiya, Petitioner Vs. Lalchand Baddani and others, Respondents, reported in AIR 1988 RAJASTHAN 181.

7. Ms. Iyer, learned Counsel appearing on behalf of the respondents, on the other hand, submitted that a discretion has been exercised by the learned Single Judge while permitting the defendants to file all the documents which were already filed in the month of February, 1995. She submitted that the Chamber Summons was made absolute in terms of prayer clauses (a) and (b) subject to payment of costs of Rs.20,000/-. She submitted that the Court always had a discretion to permit any party to file additional documents and this discretion could be exercised judiciously even at the appellate stage. She submitted that therefore, no case was made out for interference with the order passed by the learned Single Judge.

8. Before we consider the rival submissions, it would be relevant to consider the legal provision pertaining to the power of the court to permit any party to file additional documents. Originally prior to the amendment of CPC in 2002, Order 18, and Rule 17-A provided as under.

"17-A. Production of evidence not previously known or which could not be produced despite due diligence."

This provision, however, has been omitted by virtue of Amendment Act, 2002. However, by the said Amendment, Order 7, Rule 14 also has been amended and Sub-Rule 3 is inserted in Rule 14 of Order 7 with effect from 1.7.2002. Similarly, the order under Order 18, Rule 1also has been amended.

9. As a result of omission of Order 18, Rule 17-A, therefore, the power of the Court to permit the party either plaintiff or defendant to produce additional documents is not taken away.

10. In fact, the power to permit the party to lead additional evidence has also been given to the appellate court under Order 41, Rule 27. Therefore, in our view, omission of Order 18, Rule 17-A does not take away the power of the Court to permit the parties to lead evidence. It is quite settled position in law that the purpose of procedural law is not to frustrate the rights of the parties but the law is primarily to achieve the ends of justice and fully and finally decide the controversy between the parties. We are fortified in our view by the judgment of the learned Single Judge of the Calcutta High Court in the case of Kejriwal Enterprises Vs. General Manager, Ordinance Factory and others reported in AIR 2004 Calcutta 225, as the learned Single Judge in para 8 and 9 of the said judgment has observed as under:-

"8. Thus it is evident that while there was no insertion of sub-rule (3) of Rule 14 of Order 7, or substitution of said sub-rule by amendment Act 22 of 2002 as above, there was a distinct provision under Order 18-A of Rule 17-A of the Code to cover the situation where the documents, which the plaintiff wants to tender in evidence, were either not presented along with the plaint or not entered in the list for being tendered in evidence. Because of substitution of Sub-rule (3) to Rule 14 of Order 7 of the Code as above by Amendment Act 22 of 2002 the legislature thought it necessary to omit the provisions of Rule 17-A of Order 18 which became redundant as the plaintiff would still be entitled to tender the documents in evidence, even if the same have not been presented along with the plaint or entered in the list added or annexed to the plaint, for being tendered in evidence at the hearing of the suit. In such situation, the leave of the Court, as required to be obtained under Order 18, Rule 17-A of the Code, is now to be obtained under Order 7, Rule 14 Sub-Rule (3) of the Code."

"9. Upon reasonable construction of the provisions of Order 7, Rule 14, Sub-Rule (3) as amended by Amendment Act 22 of 2002 and amending Act 46 of 1999 whereby the provisions of Rule 17-A of Order 18 has been omitted from the Code, this Court is of the view that, the documents, which have not been presented along with the plaint and also have not been entered in the list that has been added or annexed to the plaint as per the provisions of Order 7, Rule 14 Sub-Rule (1) of the Code could still be tendered in evidence with the leave of the Court which the Court may grant in exercise of jurisdiction under sub-rule (3) of Rule 14 of Order 7 of the Code as amended by Amendment Act 22 of 2002."

11. In the present case, the respondents are defendants and, therefore, the provision of Order 8, Rule 1 which was amended by Amendment Act 22 of 2002 shall be applicable. The said provision reads as under:-

"ORDER 8

[WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM]

1. Written Statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence :

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not later than ninety days from the date of service of summons."

The Apex Court in catena of cases has observed that while interpreting the provisions of the Code, care should be taken that substantial justice is not sacrificed for hyper technical pleas based on strict adherence to procedural provision. In this context, it will be fruitful to refer to the observations made by the Apex Court in the case of Ghanshyam Dass and Ors. Vs. Dominion of India and Ors., reported in (1984)3 SCC 46. In this case, the Apex Court was required to answer the question as to whether the notice which was given by the plaintiff's father before his death under section 80 of the Civil Procedure Code, 1908 would enure for the benefit of the plaintiff. While considering the said question, the Apex Court has made the following observations in para 17 and 18 of its judgment, which read as under :-

"17. Section 80 of the Code is but a part of the Procedure Code passed to provide the regulation and machinery, by means of which the courts may do justice between the parties. It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it. In Sangram Singh Vs. Election Tribunal Kotah [1955 2 SCR 1 : AIR 1955 SC 425], Vivian Bose, J. in his illuminating language dealing with the Code of Civil Procedure said :

It is procedure, something designed to facilitate justice and further its ends : not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it."

"18. Our laws of procedure are based on the principle that "as far as possible, no proceeding in a court of law should be allowed to be defeated on mere technicalities". Here, all the requirements of Section 80 of the Code were fulfilled. Before the suit was brought, the Dominion of India received a notice of claim from Seth Lachman Dass. The whole object of serving a notice under Section 80 is to give the Government sufficient warning of the case which is going to be instituted against it (sic so) that the Government, if it so wished, (sic can) settle the claim without litigation or afford restitution without recourse to a court of law. That requirement of Section 80 was clearly fulfilled in the facts and circumstances of the present case."

Similarly, the Apex Court in the case of Billa Jagan Mohan Reddy and anr. Vs. Billa Sanjeev Reddy and ors., reported in (1994)4 SCC 659 was called upon to consider the question of delay in producing the documentary evidence before the Court. The observations made by the Apex Court in paragraph 4 of the said judgment are relevant and which read as under:-

"4. Order 13, Rule 1 provides thus :

"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."

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 partys 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, butthey 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."

In the aforesaid case, the Apex Court has held that, even in appeal, the appeal court is entitled to allow the party to lead additional evidence.

12. Keeping in view the observations made by the Apex Court and also taking into consideration the provisions of Order 8, Rule 1 & Order 41, Rule 27, it can be seen that the learned Single Judge has exercised a discretion vested in him and has permitted the defendants to bring on record any such documents. In the present case, it has to be noted that affidavit of documents was filed by the defendants. The documents could not be traced and, subsequently, the defendants were in a position to procure the said documents and, after an application for amendment which was filed by the plaintiff was allowed and permission was granted to the parties to file additional written statement, the application for production of documents was made and the learned Single Judge was pleased to allow the said application.

13. We, therefore, do not see any infirmity in the order passed by the learned Single Judge. The submissions made by the learned Counsel appearing of behalf of the appellant are not accepted. Ratio of the judgment on which reliance is placed by the learned Counsel for the appellants does not apply to the facts of the present case. Appeal is accordingly dismissed.

Appeal dismissed.