The object of Order XII Rule 8 of the Code is to facilitate
the plaintiff or any other party to get a document on record
which is not in their possession or in possession of the other
party. If a document has been produced then it is the duty
of the party who has asked for such production to get it
placed on record.
If, however, the said document is not
placed on record, then adverse inference against the party
who has produced the same cannot be drawn, more so,
when the party who has produced the said document before
the Court has been cross-examined vis-à-vis that document.
In our considered opinion, the High Court was right in
setting aside the judgment and decree passed by the trial
Court and remanding the matter for fresh decision.
The
directions given by the High Court do not call for any
interference.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 10041-42 OF 2010
M/s Rohini Traders
Versus
M/s J.K. Lakshmi Cement Ltd.
Dated;FEBRUARY 03, 2015.
These appeals have been filed against the orders dated
07.11.2008 and 16.12.2008 passed by the High Court of
Delhi at New Delhi in RFA No. 406 of 2007 and R.P. No. 415
of 2008 respectively. Vide order dated 07.11.2008, the High
Court allowed the appeal filed by M/s J.K. Lakshmi Cement
Ltd. -respondent herein and set aside the judgment and
decree dated 14.03.2007, passed by the Additional District
Judge, Delhi in Suit No. 125 of 2004, while restoring the suit
filed by M/s Rohini Traders - appellant herein for trial afresh
as per the observations made in the judgment.
Brief Facts
2) (a) The appellant claims itself to be a sole proprietorship
concern working as third party commission agent of the
respondent-Company. The appellant claimed a sum of Rs.
12,05,231/- as dues to be payable by the respondent-
Company as on 31.03.2004. Several requests were made to
the respondent-Company to pay the amount due but to no
effect. Even after serving a legal notice dated 09.04.2004 to
the respondent-Company, it remained un-complied with.
The appellant filed a suit praying for decree of Rs.
14,21,250/- including the principal amount as also interest at
the rate of 18 per cent per annum. The suit was contested
by the respondent-Company on the ground that it was
barred by limitation as also on merits.
The claim of the
appellant was denied and it was stated that as per the
record of the respondent-Company, a sum of Rs. 4,62,000/-
is liable to be paid by the appellant to the respondent-
Company.
Other claims made by the appellant were also
denied.
(b) During the pendency of the suit, the appellant served a
notice dated 05.07.2006 under Order XII Rule 8 of the Code
of Civil Procedure, 1908 (in short ‘the Code’) calling upon the
respondent-Company to produce and show to the Court on
the first date of hearing of the suit the following documents,
viz.,
1. Purchase Orders pertaining to the order placed by
the plaintiff;
2. Original record of the TDS Certificate issued by the
company to the plaintiff;
3. Details of the payment made to the plaintiff;
4. Details of the payment received from the party
whom order was placed by the plaintiff;
5. Copy of the Ledger of the company related to the
plaintiff from the Financial Year 1997 to 2004; and
6. Copies of the Balance Sheets filed in the Income Tax
Department and ROC for the years 1997 to 2004.
(c) It appears that the documents were not produced on the
first date of hearing.
However, during the course of the
hearing one Shri R.K. Gupta, General Manager of the
respondent-Company (DW-1) appeared before the Court and
produced the documents mentioned at Item Nos. 3-6 and
also stated that Item Nos. 1 and 2 would be available with
the appellant. The appellant did not make any endeavor to
get the documents produced by the respondent-Company on
record and to mark them and exhibited.
(d)
The trial Court, vide judgment dated 14.03.2007,
decreed the suit in favour of the appellant herein for a sum
of Rs. 14,21,250/- along with the interest at the rate of 9 per
cent per annum from the date of institution of the suit till the
date of its realization.
The trial Court held that the
respondent-Company had failed to explain as to why it had
not placed on record its books of accounts and other related
papers as asked for in the notice under Order XII Rule 8 of
the Code and drew an adverse inference.
(e)
Feeling aggrieved, the respondent-Company preferred
an appeal before the High Court of Delhi.
(f)
The High Court, after considering the material on
record, came to the finding that the witness of the
respondent-Company (DW-1) was cross-examined in support
of the documents produced by him in the Court pursuant to
the notice under Order XII Rule 8 of the Code.
However,
since the documents were neither exhibited nor brought on
record, the High Court felt it proper in the interest of justice
to restore the suit for further trial with certain directions.
(g)
An application seeking review of the judgment and
order dated 07.11.2008 was filed whereupon the High Court
re-summoned the trial Court record and re-perused the
testimony of DW-1 from which it gathered that the witness
had brought all the documents pertaining to the notice dated
05.07.2006 with respect to Item Nos. 3-6 and the other
documents were with the appellant and the witness was also
cross examined in respect of the documents so produced.
The review application was, therefore, dismissed.
(h)
Against the said orders, the appellant has preferred
these appeals before this Court.
3)
Heard Shri Sunil Kumar, learned senior counsel for the
appellant and Shri M.L. Lahoty, learned counsel for the
respondent-Company.
Contentions:
4)
Learned senior counsel for the appellant submitted that
the respondent-Company had not filed any document before
the trial Court in support of its claim made in the written
statement.
Further, it had not complied with the notice
dated 05.07.2006 under Order XII Rule 8 of the Code
requiring it to place certain documents before the Court at
the time of first date of hearing and, therefore, an adverse
inference ought to have been drawn and which was rightly
drawn by the trial Court. According to him, the High Court
ought not to have remanded the matter for fresh trial only
on the ground that such documents were produced before
the Court by DW-1.
5)
Learned senior counsel has relied upon a decision of
the Lahore High Court in Badri Parshad and Another vs.
Shanti Lal Seth and Others AIR 1941 Lahore 228 and
submitted that the documents so produced are to be given
in evidence and must be admitted in toto. He further relied
on a decision of the Allahabad High Court in Union of India
vs. Firm Vishudh Ghee Vyopar Mandal AIR 1953 All. 689
wherein it was held that the provision of Order XII Rule 8 of
the Code refers to notice to produce documents at the time
of the hearing, so that if they are not produced, the party
calling for them may give secondary evidence of the same.
According to him, as the respondent-Company has failed to
produce the documents mentioned in the notice dated
05.07.2006 under Order XII Rule 8 of the Code, the trial
Court had rightly drawn an adverse inference and decreed
the suit on the basis of the evidence on record.
6)
Learned
counsel
for
the
respondent-Company,
however, submitted that even though the respondent-
Company had not filed any document before the trial Court
yet it produced the same before the Court as asked for in the
notice dated 05.07.2006 and DW-1 was also cross-examined
by the appellant.
Therefore, the trial Court ought not to have discarded
the
documents
so
produced
by
the
respondent-Company. The High Court had rightly remanded
the matter for fresh trial.
Discussion:
7)
We have gone through the materials on record and find
that even though the respondent-Company had not brought
on record any document before the trial Court yet it had
produced certain documents mentioned at Item Nos. 3-6 in
the notice dated 05.07.2006 and DW-1 was also cross-
examined with regard to the same. The relevant portion of
the statement made by Shri R.K. Gupta (DW-1) in the cross-
examination is as under:-
“However, I have brought the documents required by the
plaintiff in terms of the notice dated 05.07.2006 vide Item
Nos. 3 to 6 and the record in terms of Item Nos. 1 and 2 of
the said notice would be available with the plaintiff.”
“I cannot say if payment to M/s Rohini Traders was being
made on transaction to transaction basis or consolidatedly.
I have seen the statement of account from which it is clear
that payments have been made both ways i.e., transaction
to transaction as well as month to month. It is correct that
the last entry in the statement of account is dated
30.04.2003. It is correct that till date we have not filed any
suit against the plaintiff for recovery.”
The claim of the appellant is that if the facts mentioned in
the said documents are taken into consideration, it may just
be possible that the claim of the appellant may not stand.
8)
At this juncture, it is relevant to quote Order XII Rule 8
of the Code which is as under:-
“Notice to produce documents.—Notice to produce
documents shall be in Form No. 12 in Appendix C, with
such variations as circumstances may require. An affidavit
of the pleader, or his clerk, of the service of any notice to
produce, and of the time when it was served, with a copy
of the notice to produce, shall in all cases be sufficient
evidence of the service of the notice, and of the time when
it was served.”
9)
From a reading of the aforesaid provision as also the
law settled on this aspect, we are of the view that it was the
duty of appellant herein to get the documents produced by
the respondent-Company under Order XII Rule 8 of the Code
exhibited in the suit proceedings so that a true and correct
finding either way could have been recorded by the trial
Court. It is not in dispute that the appellant did not take any
step to get those documents marked and exhibited before
the trial Court.
10) The object of Order XII Rule 8 of the Code is to facilitate
the plaintiff or any other party to get a document on record
which is not in their possession or in possession of the other
party. If a document has been produced then it is the duty
of the party who has asked for such production to get it
placed on record.
If, however, the said document is not
placed on record, then adverse inference against the party
who has produced the same cannot be drawn, more so,
when the party who has produced the said document before
the Court has been cross-examined vis-à-vis that document.
9
Page 9
11) In our considered opinion, the High Court was right in
setting aside the judgment and decree passed by the trial
Court and remanding the matter for fresh decision.
The
directions given by the High Court do not call for any
interference.
12) In view of the above discussion, the appeals fail and are
hereby dismissed with no order as to costs.
..............................................J.
(RANJAN GOGOI)
...............................................J.
(R.K. AGRAWAL)
NEW DELHI;
FEBRUARY 03, 2015.
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