The Court also says that nothing prevents the Court in its discretion to
grant leave subsequent to the documents being produced before the Court
even though such documents were not annexed to plaint or included in the
list annexed to the plaint and no pedantic approach should be adopted. At
the same time, this Court also says it would depend on the facts of each case
and the order of the Court in that regard will be speaking and reasoned
order. The Court cannot give a speaking and reasoned order unless an
application is made for leave to produce such documents that were not
presented with the plaint or entered in the list annexed to the plaint.
Therefore, the plaintiff will have to apply explaining as to why these
documents were not annexed to the plaint or included in the list of
documents and why leave should be granted. It is not for the defendants, as
submitted by Mr.Rajasekhar, to take out an application explaining what
prejudice will be caused if the document is accepted in evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ADMIRALTY AND VICE ADMIRALTY JURISDICTION
ADMIRALTY SUIT NO. 33 OF 2010
Coromandel International Ltd. .. Plaintiff
Vs.
M.V. GLORY I & Ors. .. Defendants
CORAM : K.R.SHRIRAM, J.
PRONOUNCED ON : 30TH OCTOBER 2014
Citation;2015(1)ALLMR619
Read original judgment here;click here
1 The suit is listed today for framing of issues.
At the outset, the counsel for the plaintiff stated that the affidavit of
documents of the plaintiff is ready and the plaintiff is relying upon some
156 documents.
The counsel for the defendants objected to the affidavit of documents
being taken on record. Relying on Order VII Rule 14 and Order XIII Rule 1
of the Code of Civil Procedure (for brevity referred as 'CPC') he submitted
that the question of the plaintiff filing any affidavit of documents itself does
not arise as no application for discovery has been taken out by the
defendants.
The counsel further submitted that the plaint refers to about 21
documents and only those 21 documents can be accepted and nothing more
than that. He stated that the plaintiff cannot rely on any document that is not
annexed to the plaint. He submitted that as provided in the CPC all
documents relied upon by the plaintiff have to be annexed to the plaint with
a copy, together with a list thereof. And, the document that is referred in the
plaint and it is stated in the plaint that it is not in the possession of the
plaintiff and hence not produced and leave is craved to produce the same at
a later stage, originals of only such documents have to and can be produced
on or before the settlement of issues. Any other document, without the leave
of the Court cannot be received in evidence on behalf of the plaintiff at the
hearing of the suit. He submitted that hearing of the suit means when the
plaintiff files his affidavit in lieu of examination in chief and before that the
plaintiff has to take out an application for leave of the Court to receive those
documents in evidence.
He also expressed apprehension that, the written statement having
been filed and the defendants having stated in their written statement that
the plaint is based on fraudulent arrangements these contentious documents
could be even cooked up documents.
2 Mr.Rajashekhar, counsel for the plaintiff disagreed with the
submissions of Mr.Ramabhadran and submitted that only crucial documents
have to be annexed to the plaint and not the evidence. According to
Mr.Rajasekhar, a letter for example will be a crucial document on which a
right in favour of plaintiff is created but proof of service or receipt is only a
piece of evidence and can be brought in later. He relied upon a judgment of
the Privy Council in the matter of Sulaiman Vs. Biyaththumma and Ors1 in
in support of this submission.
He also submitted that under Rule 172 of the Bombay High Court
(OS) Rules, there is a provision for filing affidavit of documents and
supplementary affidavit of documents and therefore all documents including
those not referred to or annexed to in the plaint or not included in the list of
documents annexed to the plaint can be introduced through the affidavit of
documents and only if the same is missed out in the affidavit of documents,
should the leave of the Court be sought for receiving any such evidence. In
short he said all documents whatsoever on which the parties rely can be
introduced even for the first time in the affidavit of documents.
1 AIR 1916 PC 217
He also submitted that Bombay High Court (OS) Rules will prevail
over the CPC since it is settled law that Bombay High Court (OS) Rules are
like special law.
3 Mr. Rajasekhar also relied upon a judgment of this Court in the matter
of Mohanraj Rupchand Jain V.s Kewalchand Hastimal Jain & Ors.1 to
submit that the Court should not take a pedantic approach and the Court
should construe the same liberally and so long as no prejudice is caused to
the defendants, the Court should allow each and every document in
evidence. He also submitted that the onus is on the defendants to prove that
they are prejudiced and the onus is not on the plaintiff to prove why the
documents which were not included in the plaint should be allowed to be
taken on record. He also relied upon an unreported order of this Court in
the matter of Global Fuels and Lubricants INC V/s. m.v. BOS ANGLER &
Ors. (BOS ANGLER) to submit that the Court accepted a document on
record on the basis that no prejudice will be caused to the plaintiff, if leave
was granted.
He also submitted that CPC expects a plaint not to be verbose but
give only facts and if the Court was to accept Mr.Ramabhadran’s
1 2007 A I H C 1015
2 Admiralty Suit No.26 of 2011
submission in a case like the present case, the plaint will be in excess of 300
pages.
4 Bos Angler (supra) is relied upon by Mr.Rajasekhar is not relevant
inasmuch as the document in that case was a Power of the Attorney in
favour of the plaintiff's witness. The leave was granted because the plaint
has been signed and verified and the affidavit in lieu of examination in chief
was affirmed based on the said Power of Attorney. A notation of the Power
of Attorney being in existence and having been sighted by the Associate of
the Court is also made in the plaint. A copy of the Power of Attorney was
also annexed to the plaint. Therefore, Bos Anger (supra) is not relevant to
the present case.
5 Mr. Rajasekhar further submitted that if Rule 14 of Order 7 of CPC
does not apply to a document produced for the cross-examination of the
plaintiff’s witness, then it means that only crucial documents are required to
be annexed and not all the documents.
6 Before I consider the Code of Civil Procedure on this, the admitted
position is apart from the 21 documents, none of the other 135 documents,
majority of which are e-mails, find a mention even in the plaint and the list
of documents annexed to the plaint let alone a copy being annexed to the
plaint or produced with the compilation of documents filed while applying
for the arrest of the first defendant vessel.
7 CPC as amended with effect from 1.07.2002, reads as under :
ORDER VII, RULE 14 :
Production of document on which plaintiff sues or relies:
(1) Where a plaintiff sues upon a document or relies upon
document in his possession or power in support of his claim,
he shall enter such documents in a list, and shall produce it in
Court when the plaint is presented, and shall at the same time
deliver the document and a copy thereof, to be filed with the
plaint.
(2) Where any such document is not in the possession or
power of the plaintiff, he shall, if possible, state in whose
possession or power it is.
(3) A document which ought to be produced in Court by the
plaintiff when the plaint is presented, or to be entered in the list
to be added or annexed to the plaint, but is not produced or
entered accordingly, shall not, without the leave of the Court,
be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule apply to documents produced for
cross-examination of the plaintiff's witnesses, or, handed to a
witness merely to refresh his memory.
ORDER XIII, RULE 1 reads as under :
Original documents to be produced at or before the settlement
issues
(1) The parties or their pleaders shall produce on or before
the settlement of issues, all the documentary evidence in
original where the copies thereof have been filed along with
plaint or written statement.
(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.
(3) Nothing in sub-rule (1) shall apply to documents-
(a) produced for the cross-examination of the witness of the
other party, or
(b) Handed over to a witness merely to refresh his memory.
For the purpose of this matter, even order XI, Rule 12, 13 and 14 have to be
reproduced as under :
ORDER XI-DISCOVERY AND INSPECTION
….
12. Application for discovery of documents— Any party may,
without filing any affidavit, apply to the Court for an order
directing any other party to any suit to make discovery on oath
of the documents which are or have been in his possession or
power, relating to any matter in question therein. On the
hearing of such application the Court may either refuse or
adjourn the same, if satisfied that such discovery is not
necessary, or not necessary at that stage of the suit, or make
such order, either generally or limited to certain classes of
documents, as may, in its discretion be thought fit :
Provided that discovery shall not be ordered when and so far as
the Court shall be of opinion that it is not necessary either for
disposing fairly of the suit or for saving costs.
13. Affidavit of documents— The affidavit to be made by a
party against whom such order as is mentioned in the last
preceding rule has been made, shall specify which (if any) of
the documents therein mentioned he objects to produce, and it
shall be in Form No. 5 in Appendix C, with such variations as
circumstances may require.
14. Production of documents— It shall be lawful for the
Court, at any time during the pendency of any suit, to
order the production by any party thereto, upon oath of such of
the documents in his possession or power,
relating to any matter in question in such suit, as the Court
shall think right; and the Court may deal with such
documents, when produced, in such manner as shall appear
just.
Even Rule 157, 158, 164, 165 and 172 in Chapter XI - 'Matters arising
pending suit' of the Bombay High Court (OS) Rules are relevant. The same
read as under :
150 to 156.…........
157. Directions to be given :- When a suit appears on the
board of the Judge in Chambers for directions, the Judge shall,
for the speedy determination of the suit and the avoidance of
multiplicity of interlocutory proceedings, give such directions
with respect to pleadings, interrogatories, particulars,
admission of facts and documents, examination of witnesses,
discovery, inspection and production of documents, fixing a
date for settling issues and for trial of any issues as preliminary
issues, fixing a date for hearing of the suit and such other
matters, as he may think fit.
158. No affidavit to be made : - No affidavit shall be made or
used by any party when the suit is on board for directions,
except by leave of the Judge.
Discovery and Inspection
164. Agent may make affidavit of documents when a party is
not residing in Greater Bombay:- Where the transactions which
form the subject-matter of a suit have been carried on wholly
or principally in Greater Bombay and any party is not residing
in Greater Bombay at the time an affidavit of documents is
required to be filed, such affidavit may be made on behalf of
such absent party by his agent in Greater Bombay. For the
purpose of this rule, a resident partner in Greater Bombay shall
be the agent of his non-resident partner.
165. Procedure where the affidavit is required to be made
by absent party personally :- If in the case provided for by
the last preceding rule any party desires to have such affidavit
made by all or any of the absent parties personally, he shall be
at liberty to apply on summons for an order to that effect to the
Judge in Chambers, setting forth the grounds for making such
order, and the Judge after hearing the opposite party may make
such order; but the party obtaining it shall, before serving the
same, deposit a sum of rupees one hundred in Court for the
cost of the opposite party of such order and affidavit which
costs shall be dealt with by the Judge who tries the case.
172. Effect of non-disclosure of documents :-
No documentary evidence in the possession or power of any
party, which should have been but has not been disclosed in the
affidavit of documents, or which is required to be disclosed in
a supplementary affidavit of documents and has not been
disclosed shall be received at any subsequent stage of the
proceedings, unless good cause is shown to the satisfaction of
the Court for the non-disclosure thereof; and the Court
receiving any such evidence shall record the reasons for so
doing.
[emphasis supplied]
8 Under Order VII, Rule 14 of the CPC where a plaintiff is suing upon a
document or relies upon document in his possession or power in support of
its claim, such document has to be entered by the plaintiff in a list to be
annexed to the plaint and the plaintiff shall also produce it in Court when the
plaint is presented. The plaintiff shall also at the time the plaint is presented
produce the documents and copies thereof.Where any such document is not
in the possession or power of the plaintiff, then the plaintiff, where possible,
shall state in whose possession or power, the document is. If any such
document ought to be produced with the plaint or entered in the list to be
added or annexed to the plaint is not so produced or entered accordingly, the
plaintiff may still produce the document and the Court may receive the same
in evidence provided the plaintiff obtains leave of the Court at the hearing of
the suit. This Rule is not applicable to documents produced for the cross
examination of the ‘defendant’s witness’ not ‘plaintiff’s witness’ as the Rule
reads. I am reading as ‘defendant’s witness’ and not ‘plaintiff’s witness’ in
view of the judgment of the Apex Court in the matter of Salem Advocate
Bar Association, T.N. V/s. Union of India1 in which the Apex Court has
observed that the Legislature by mistake has used the words “plaintiff’s
witnesses” instead of “defendant’s witnesses”. Paragraph 34 and 35 of the
said judgment read as under:
1 (2005) 6 SCC 344
34 Order VII Rule 14 deals with production of documents
which are the basis of the suit or the documents in plaintiff's
possession or power. These documents are to be entered in the
list of documents and produced in the Court with plaint. Order
VII Rule 14(3) requires leave of Court to be obtained for
production of the documents later. Order VII Rule 14(4) reads
as under:
"14. (4) Nothing in this rule shall apply to
document produced for the cross examination of the
plaintiff's witnesses, or, handed over to a witness
merely to refresh his memory."
In the aforesaid Rule, it is evident that the words 'plaintiff's
witnesses' have been mentioned as a result of mistake seems to
have been committed by the legislature. The words ought to be
'defendant's witnesses'. There is a similar provision in Order
VIII Rule 1A(4) which applies to a defendant. It reads as
under:
"1-A. (4) Nothing in this rule shall apply to
documents --
(a) produced for the cross-examination of the
plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his
memory."
35 Order VII relates to the production of documents by the
plaintiff whereas Order VIII relates to production of documents
by the defendant. Under Order VIII Rule 1A(4) a document not
produced by defendant can be confronted to the plaintiff's
witness during cross-examination. Similarly, the plaintiff can
also confront the defendant's witness with a document during
cross-examination. By mistake, instead of 'defendant's
witnesses', the words 'plaintiff's witnesses' have been
mentioned in Order VII Rule (4). To avoid any confusion, we
direct that till the legislature corrects the mistake, the words
'plaintiff's witnesses, would be read as 'defendant's witnesses'
in Order VII Rule 4. We, however, hope that the mistake would
be expeditiously corrected by the legislature.
[emphasis supplied]
9 Therefore, the Rule 14 of Order VII of the CPC is very clear that the
plaintiff shall produce all the documents with a copy thereof and also enter
all the documents in a list annexed to the plaint and if any document is not
produced when the plaint is presented should state, if possible, in whose
possession the document is. If the plaintiff wishes any document other than
those documents produced with the plaint and not entered in the list at the
hearing of the suit to be received in evidence on his behalf, the plaintiff has
to obtain leave of the Court. Sub-rule, (1) is a blend of old sub-rule (1) and
(2) of Rule 14, sub-rule (2) is from old Rule 15 and sub-rules 3 and 4 were
originally part of Rule 18 of Order VII. Therefore, in Order VII, the new
Rule 14 is a mixture of old Rules 14, 15 and 18. You will find similar
provision in Order VIII, Rule, 1-A regarding written statement and
counterclaim. Rule 6A (4) says for a counterclaim rules of plaint shall
apply.
10 Moving to Rule 1 of Order XIII, it provides that the parties or the
pleader shall produce on or before the settlement of issues, all the
documentary evidence in original where copies thereof have been filed
along with the plaint or written statement and the Court shall receive the
documents so produced. A precondition to receive those documents is in the
Proviso, i.e., the documents should be accompanied by an accurate list
thereof prepared in such form as the High Court directs. Sub-rule 1 does not
apply to documents produced for the cross-examination of the witnesses of
the other party or handed over to the witnesses merely to refresh his
memory.
11 Therefore, it cannot be disputed that if the plaintiff fails to mention
the documents in the list annexed to the plaint and place the originals and a
copy on record of such documents which are required to be produced with
the plaint, the plaintiff is not entitled to produce any additional document
thereafter except with the leave of the Court. The freedom that the parties,
i.e., the plaintiff and the defendants had pre-2002 amendment, to produce all
documentary evidence of every description or possession of their power on
which they intend to rely and which has not already been filed in Court is no
more available post-amendment. Under the old Order VII, Rule 1(2) of
CPC, it says 'where he sues on any document in his possession, he shall
deliver the same in plaint and those not in his possession, he shall enter the
same in a list to be annexed to the plaint'. Under the old Order XIII, Rule 1,
parties could produce all the documentary evidence, on which they intended
to rely and which has not been filed in the Court, at or before the settlement
of issues. The amended Order XIII, Rule 1 says “.... where copies thereof
have been filed along with the plaint or written statement”. The words were
not there pre-amendment. Therefore, the parties were permitted to produce
those missed out documents by filing an affidavit of documents before or at
the time of settlement of issues. That freedom, as it appears from the
Commentary by Mulla on the Code of Civil Procedure (18th Edition), 2011,
to file documents in evidence at any subsequent stage of the suit stand
curtailed and this has been done to expedite the hearing of the suit and also
bar the litigants from taking the other party by surprise. Post-amendment, it
would appear, even the discretion the Court exercised relating to time when
the original documents have to be filed in a case is not left. It makes the
parties and pleaders to produce their original documents at the time the
plaint is filed and only those documents the originals whereof could not be
filed with the plaint and copies were filed, could be filed on or before the
settlement of issues. Or else at the time of the hearing, leave of the Court
has to be obtained to produce further documents.
12 The judgment of the Privy Council in Sulaiman Vs. Biyaththumma
and Ors. (supra) relied upon by the counsel for the plaintiff does not
anywhere state that only crucial documents have to be annexed to the plaint.
13 In my view, all documents are crucial. Other than the 21 documents
copies of which were filed in the compilation of documents filed when the
arrest application was moved, the remaining 135 documents appear to be all
emails and correspondence exchanged between persons who are not parties
to the suit or only one party is party to the suit. The plaintiff wants to rely
on those emails only because they are crucial to prove the plaintiff's case.
Certainly these emails were available at the time when the plaint was
presented and even before the amendment to the plaint was carried out. In
fact, the Privy Council, referring to Section 59 of the CPC of 1882 (Order
VII, Rule 14 of CPC 1908) in the Sulaiman Vs. Biyaththumma and Ors.
(supra) also states that a document referred to or sought to be enforced in a
suit must be produced in Court when the plaint was presented or a copy
thereof must be filed with the plaint. Therefore, it does not help the
plaintiff's case at all.
14 Even the judgment passed by this Court in the case of Mohanraj
Rupchand Jain Vs. Kewalchand Hastimal Jain & Ors. (supra) which was
in a writ petition challenging the order passed by the revisional bench of the
Small Causes Court, Mumbai, in paragraphs 5, 6 and 8 which are
reproduced herein, confirms the fact that Order VII Rule 14 provides that a
document which ought to be produced by the plaintiff when the plaint is
presented or to be entered in the list annexed to the plaint but is not
produced or entered and if the plaintiff wants to produce the same later, it
can be done only with the leave of the Court. Paragraph 5, 6 and 8 read as
under :
5. Perusal of the order passed by the trial Judge discloses
that the petitioner had taken out the notice for rejecting the
documents which were filed along with the affidavit under
Order XVIII, Rule 4 of the Code as also for rejection of the
suit. The learned Judge, after hearing the parties and on
consideration of the Order VII, Rule 14 of the Code, held that
though in terms of the Order VII, Rule 14 of the Code it is
necessary for the parties to produce documents on which the
suit is based as also to submit a copy of the list of documents
which are relied upon, the petitioner having failed to make out
any case of prejudice on account of admission in evidence, the
documents which are sought to be produced by the respondents
along with the affidavit under Order XVIII, Rule 4 of the
Code, while reserving the right of the petitioner to lead
necessary evidence in rebuttal, has rejected the said application
filed by the petitioner. As far as the order of the Revisional
Bench is concerned, it discloses that the revision application
has been dismissed as not maintainable after taking into
consideration the decision in Sukhdev Prasad Raghubir's case
(supra).
6. It cannot be disputed that in terms of Order VII, Rule 14
of the Code, where a plaintiff sues upon a document in his
possession or power in support of his claim, he shall enter such
document in a list, and shall produce it in Court when the
plaint is presented by him and shall, at the same time deliver
the document and a copy thereof to be filed with the plaint.
Sub-rule (3) of Rule 14 thereof clearly provides that a
document which ought to be produced in Court by the plaintiff
when the plaint is presented, or to be entered in the list to be
added or annexed to the plaint but is not produced or entered
accordingly, shall not, without the leave of the Court, be
received in evidence on his behalf at the hearing of the suit.
Sub-rule (4) thereof provides that nothing in the said rule shall
apply to document produced for the cross-examination of the
plaintiffs witnesses, or, handed over to a witness merely to
refresh his memory. Similar is the provision under the Subclause
(3) of Rule 1 of the Order XIII of the Code. Being so, it
cannot be disputed that if the plaintiff fails to mention the
documents in the list annexed to the plaint and to place on
record a copy of such document, which is required to be
produced under the law at the time of filing of the plaint, the
plaintiff is not entitled to produce any additional document
thereafter, without the leave of the Court. The contention of the
learned advocate for the petitioner, however, is that such leave
has necessarily to be obtained prior to the documents being
placed on record. The contention cannot be found fault with.
But, at the same time, it is also to be noted that nothing
prevents the Court in its discretion to grant leave subsequent to
the documents being produced before the Court even though
such documents were not entered in the list annexed to the
plaint. It would depend upon the facts of each case.
Undoubtedly, the order of the Court in that regard will have to
be a speaking and reasoned order. In the case in hand, however,
the said issue does not arise at all.
[emphasis supplied]
7. ….......
8. It cannot be forgotten that the provision comprised under
Order VII, Rule 14 of the Code relates to the procedure to be
followed in the civil proceedings before the Court. The said
provision is essentially to assist the parties as well as the Court
in the matter of production of the documentary evidence of the
plaintiff while adjudicating the dispute raised before the Court.
Being so, it is essentially to assist the parties and the Court to
arrive at an appropriate decision on the matter in dispute.
Being so, the provision in that regard is necessarily to be
construed liberally, and no pedantic approach should be
adopted while enforcing the said provision of law. The
documentary evidence which is not disputed to be relevant and
material for the just and appropriate decision in the matter,
merely because the respondents had failed to enter the same in
the list annexed to the plaint, could not be ignored, unless it is
shown by the petitioner that there would be real prejudice
caused to the petitioner on account of the respondents being
allowed to produce such documents. A document which
pertains to the matter in issue cannot be said to cause prejudice
to either of the parties, merely because there is some delay in
production of such document. It is to be noted that the
deponent who has filed the affidavit on behalf of the
respondents along with the documents is yet to be crossexamined
and evidence in that regard by the petitioner is yet to
be led in the matter. Being so, there would be ample
opportunity to the petitioner to meet those documents in the
course of recording of evidence including the crossexamination
of the witness of the respondents.
15 The Court also says that nothing prevents the Court in its discretion to
grant leave subsequent to the documents being produced before the Court
even though such documents were not annexed to plaint or included in the
list annexed to the plaint and no pedantic approach should be adopted. At
the same time, this Court also says it would depend on the facts of each case
and the order of the Court in that regard will be speaking and reasoned
order. The Court cannot give a speaking and reasoned order unless an
application is made for leave to produce such documents that were not
presented with the plaint or entered in the list annexed to the plaint.
Therefore, the plaintiff will have to apply explaining as to why these
documents were not annexed to the plaint or included in the list of
documents and why leave should be granted. It is not for the defendants, as
submitted by Mr.Rajasekhar, to take out an application explaining what
prejudice will be caused if the document is accepted in evidence.
16 Coming to the affidavit of documents under Order XI, Rule 12 of the
CPC any party, may, without filing any affidavit, apply to the Court for an
order directing any other party to any suit to make discovery on oath of the
documents which are or have been in his possession or power, relating to
any matter in question therein and if the Court allows the application then
the party against whom such an order under Rule 12 is made, shall file an
affidavit of documents under Rule 13 of Order XI and specify which (if any)
of the documents therein mentioned he objects to produce. This has to be
read with Order VII, Rule 14 [and Order VIII, Rule 1-A(2)] of CPC which
says where any document is not in the possession or power of the plaintiff/
[defendant], he shall, where possible, state in whose possession or power it
is.
17 As regards the submission of Mr.Rajasekhar that this Court had
directed the plaintiff to file their affidavit of documents and hence the
plaintiff is filing the affidavit of documents, it is true that this Court had
directed filing the affidavit of documents and complete discovery and
inspection.
Mr.Rajasekhar may find support in Order XI, Rule 14 and High Court
(OS) Rule 172, which are reproduced earlier. Rule 12 and Rule 14 are
independent of each other and it is not necessary in every case that an
application has to be made only under Rule 12 first. Rule 13 is a result of
an order passed on an application made under rule 12. But under Rule 14,
no such application is necessary. The Court has the power to direct
production of documents without any application by any party and such
production of documents that the party has in his possession or power
relating to any matter in question in the suit, has to be made on oath. A
party can produce documents in his possession or power under oath only by
filing an affidavit of documents. It has been a practice of this Court, once
the pleadings are completed, to direct parties to file affidavit of documents
and also complete discovery and inspection within a fixed period. This
means that all parties are directed to produce on oath, by filing an affidavit
of documents, all documents in their possession or power, that they feel is
required relating to any matter in question in the suit. As and when they are
disclosed in the affidavit, the other party gets to take inspection and also
gets copies thereof. Just because a document which has not been referred to
at all in the plaint is disclosed for the first time in the affidavit also will not
cause any prejudice to the other party. Simple disclosure does not mean that
the document will be received in evidence and even if received and marked
as an exhibit, the other party may cross examine the witness.
In this case also directions have been passed to the parties to produce
upon oath all documents that it has in its possession or power relating to any
matter in this suit. Hence the affidavit of documents as being filed by the
plaintiff has to be accepted and taken on record.
18 Rule 157 of the High Court (OS) Rules also provides that the Court
for speedy determination of the suit and the avoidance of multiplicity of
interlocutory proceeding, shall give such directions with respect of
admission of facts and documents, discovery inspection and production of
documents etc.
19 Under Rule 164, it provides “at the time an affidavit of documents is
required to be filed, such affidavit may be …......”. So also Rule 165 that
provides, “if in the case provided for by the last preceding rule any party
desires to have such affidavit made.............” Therefore, under Rule 164, it
says “affidavit of documents is required to be filed, such affidavit” and Rule
165 says, “in the case provided for in the last preceding rule........... such
affidavit made”. “Such affidavit” could mean an affidavit of documents
required to be filed under Order XI, Rule 13 pursuant to an order passed
under Order XI, Rule 12 or as per directions passed under Rule 14. So in
cases where an affidavit of documents is required to be filed under Order
XI, Rule 13 or 14, then, when such an affidavit is required to be filed an
agent may do so as provided under Rule 164. Rule 165 only provides for
the procedure to be followed where such affidavit is required to be made by
the absent party personally.
20 It is well settled that the Bombay High Court (OS) Rules are like
special law and the rules will prevail. Rule 172 provides, no documentary
evidence in the possession or power of any party, which should have been
but has not been disclosed in the affidavit of documents, or which is
required to be disclosed in a supplementary affidavit of documents and has
not been disclosed shall be received at any subsequent stage unless good
cause is shown for non-disclosure thereof. Therefore, this affidavit of
documents being filed by the plaintiff can be accepted and only for those
documents that have not been annexed to the plaint and/or disclosed in the
affidavit of documents, leave of the Court is required at the hearing of the
suit to be received in evidence.
21 In this Court, there has been a practice where plaint is filed only with
photocopies of documents relied upon and such a plaint is admitted. There
has also been a practice of the Prothonotary and Senior Master and the
Courts herein directing the parties, after the pleadings are completed, to file
their affidavit of documents and complete discovery and inspection.
If the plaintiff/defendant wants any document, copies whereof are not
annexed to the plaint or written statement and/or not included in the list of
documents annexed to the plaint/written statement or in the affidavit of
documents, to be received in evidence at the hearing of the suit, the
plaintiff/defendant can always apply to the Court for leave.
22 In the circumstances, if the plaintiff wishes to rely upon any
document other than the 21 documents that were produced at the time of
arrest of the 1st defendant vessel and additional 135 documents referred to in
the affidavit of documents, the plaintiff may apply if so advised. Such leave
can be applied for, to reduce multiplicity of proceedings and to avoid delay
in beginning of trial, in the affidavit of evidence itself filed under Order
XVIII, Rule 4 of CPC.
23 I should also clarify that this order should not be construed as making
any observation on the admissibility of any of the 156 documents listed.
(K.R.SHRIRAM, J.)
Print Page
grant leave subsequent to the documents being produced before the Court
even though such documents were not annexed to plaint or included in the
list annexed to the plaint and no pedantic approach should be adopted. At
the same time, this Court also says it would depend on the facts of each case
and the order of the Court in that regard will be speaking and reasoned
order. The Court cannot give a speaking and reasoned order unless an
application is made for leave to produce such documents that were not
presented with the plaint or entered in the list annexed to the plaint.
Therefore, the plaintiff will have to apply explaining as to why these
documents were not annexed to the plaint or included in the list of
documents and why leave should be granted. It is not for the defendants, as
submitted by Mr.Rajasekhar, to take out an application explaining what
prejudice will be caused if the document is accepted in evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ADMIRALTY AND VICE ADMIRALTY JURISDICTION
ADMIRALTY SUIT NO. 33 OF 2010
Coromandel International Ltd. .. Plaintiff
Vs.
M.V. GLORY I & Ors. .. Defendants
CORAM : K.R.SHRIRAM, J.
PRONOUNCED ON : 30TH OCTOBER 2014
Citation;2015(1)ALLMR619
Read original judgment here;click here
1 The suit is listed today for framing of issues.
At the outset, the counsel for the plaintiff stated that the affidavit of
documents of the plaintiff is ready and the plaintiff is relying upon some
156 documents.
The counsel for the defendants objected to the affidavit of documents
being taken on record. Relying on Order VII Rule 14 and Order XIII Rule 1
of the Code of Civil Procedure (for brevity referred as 'CPC') he submitted
that the question of the plaintiff filing any affidavit of documents itself does
not arise as no application for discovery has been taken out by the
defendants.
The counsel further submitted that the plaint refers to about 21
documents and only those 21 documents can be accepted and nothing more
than that. He stated that the plaintiff cannot rely on any document that is not
annexed to the plaint. He submitted that as provided in the CPC all
documents relied upon by the plaintiff have to be annexed to the plaint with
a copy, together with a list thereof. And, the document that is referred in the
plaint and it is stated in the plaint that it is not in the possession of the
plaintiff and hence not produced and leave is craved to produce the same at
a later stage, originals of only such documents have to and can be produced
on or before the settlement of issues. Any other document, without the leave
of the Court cannot be received in evidence on behalf of the plaintiff at the
hearing of the suit. He submitted that hearing of the suit means when the
plaintiff files his affidavit in lieu of examination in chief and before that the
plaintiff has to take out an application for leave of the Court to receive those
documents in evidence.
He also expressed apprehension that, the written statement having
been filed and the defendants having stated in their written statement that
the plaint is based on fraudulent arrangements these contentious documents
could be even cooked up documents.
2 Mr.Rajashekhar, counsel for the plaintiff disagreed with the
submissions of Mr.Ramabhadran and submitted that only crucial documents
have to be annexed to the plaint and not the evidence. According to
Mr.Rajasekhar, a letter for example will be a crucial document on which a
right in favour of plaintiff is created but proof of service or receipt is only a
piece of evidence and can be brought in later. He relied upon a judgment of
the Privy Council in the matter of Sulaiman Vs. Biyaththumma and Ors1 in
in support of this submission.
He also submitted that under Rule 172 of the Bombay High Court
(OS) Rules, there is a provision for filing affidavit of documents and
supplementary affidavit of documents and therefore all documents including
those not referred to or annexed to in the plaint or not included in the list of
documents annexed to the plaint can be introduced through the affidavit of
documents and only if the same is missed out in the affidavit of documents,
should the leave of the Court be sought for receiving any such evidence. In
short he said all documents whatsoever on which the parties rely can be
introduced even for the first time in the affidavit of documents.
1 AIR 1916 PC 217
He also submitted that Bombay High Court (OS) Rules will prevail
over the CPC since it is settled law that Bombay High Court (OS) Rules are
like special law.
3 Mr. Rajasekhar also relied upon a judgment of this Court in the matter
of Mohanraj Rupchand Jain V.s Kewalchand Hastimal Jain & Ors.1 to
submit that the Court should not take a pedantic approach and the Court
should construe the same liberally and so long as no prejudice is caused to
the defendants, the Court should allow each and every document in
evidence. He also submitted that the onus is on the defendants to prove that
they are prejudiced and the onus is not on the plaintiff to prove why the
documents which were not included in the plaint should be allowed to be
taken on record. He also relied upon an unreported order of this Court in
the matter of Global Fuels and Lubricants INC V/s. m.v. BOS ANGLER &
Ors. (BOS ANGLER) to submit that the Court accepted a document on
record on the basis that no prejudice will be caused to the plaintiff, if leave
was granted.
He also submitted that CPC expects a plaint not to be verbose but
give only facts and if the Court was to accept Mr.Ramabhadran’s
1 2007 A I H C 1015
2 Admiralty Suit No.26 of 2011
submission in a case like the present case, the plaint will be in excess of 300
pages.
4 Bos Angler (supra) is relied upon by Mr.Rajasekhar is not relevant
inasmuch as the document in that case was a Power of the Attorney in
favour of the plaintiff's witness. The leave was granted because the plaint
has been signed and verified and the affidavit in lieu of examination in chief
was affirmed based on the said Power of Attorney. A notation of the Power
of Attorney being in existence and having been sighted by the Associate of
the Court is also made in the plaint. A copy of the Power of Attorney was
also annexed to the plaint. Therefore, Bos Anger (supra) is not relevant to
the present case.
5 Mr. Rajasekhar further submitted that if Rule 14 of Order 7 of CPC
does not apply to a document produced for the cross-examination of the
plaintiff’s witness, then it means that only crucial documents are required to
be annexed and not all the documents.
6 Before I consider the Code of Civil Procedure on this, the admitted
position is apart from the 21 documents, none of the other 135 documents,
majority of which are e-mails, find a mention even in the plaint and the list
of documents annexed to the plaint let alone a copy being annexed to the
plaint or produced with the compilation of documents filed while applying
for the arrest of the first defendant vessel.
7 CPC as amended with effect from 1.07.2002, reads as under :
ORDER VII, RULE 14 :
Production of document on which plaintiff sues or relies:
(1) Where a plaintiff sues upon a document or relies upon
document in his possession or power in support of his claim,
he shall enter such documents in a list, and shall produce it in
Court when the plaint is presented, and shall at the same time
deliver the document and a copy thereof, to be filed with the
plaint.
(2) Where any such document is not in the possession or
power of the plaintiff, he shall, if possible, state in whose
possession or power it is.
(3) A document which ought to be produced in Court by the
plaintiff when the plaint is presented, or to be entered in the list
to be added or annexed to the plaint, but is not produced or
entered accordingly, shall not, without the leave of the Court,
be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule apply to documents produced for
cross-examination of the plaintiff's witnesses, or, handed to a
witness merely to refresh his memory.
ORDER XIII, RULE 1 reads as under :
Original documents to be produced at or before the settlement
issues
(1) The parties or their pleaders shall produce on or before
the settlement of issues, all the documentary evidence in
original where the copies thereof have been filed along with
plaint or written statement.
(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.
(3) Nothing in sub-rule (1) shall apply to documents-
(a) produced for the cross-examination of the witness of the
other party, or
(b) Handed over to a witness merely to refresh his memory.
For the purpose of this matter, even order XI, Rule 12, 13 and 14 have to be
reproduced as under :
ORDER XI-DISCOVERY AND INSPECTION
….
12. Application for discovery of documents— Any party may,
without filing any affidavit, apply to the Court for an order
directing any other party to any suit to make discovery on oath
of the documents which are or have been in his possession or
power, relating to any matter in question therein. On the
hearing of such application the Court may either refuse or
adjourn the same, if satisfied that such discovery is not
necessary, or not necessary at that stage of the suit, or make
such order, either generally or limited to certain classes of
documents, as may, in its discretion be thought fit :
Provided that discovery shall not be ordered when and so far as
the Court shall be of opinion that it is not necessary either for
disposing fairly of the suit or for saving costs.
13. Affidavit of documents— The affidavit to be made by a
party against whom such order as is mentioned in the last
preceding rule has been made, shall specify which (if any) of
the documents therein mentioned he objects to produce, and it
shall be in Form No. 5 in Appendix C, with such variations as
circumstances may require.
14. Production of documents— It shall be lawful for the
Court, at any time during the pendency of any suit, to
order the production by any party thereto, upon oath of such of
the documents in his possession or power,
relating to any matter in question in such suit, as the Court
shall think right; and the Court may deal with such
documents, when produced, in such manner as shall appear
just.
Even Rule 157, 158, 164, 165 and 172 in Chapter XI - 'Matters arising
pending suit' of the Bombay High Court (OS) Rules are relevant. The same
read as under :
150 to 156.…........
157. Directions to be given :- When a suit appears on the
board of the Judge in Chambers for directions, the Judge shall,
for the speedy determination of the suit and the avoidance of
multiplicity of interlocutory proceedings, give such directions
with respect to pleadings, interrogatories, particulars,
admission of facts and documents, examination of witnesses,
discovery, inspection and production of documents, fixing a
date for settling issues and for trial of any issues as preliminary
issues, fixing a date for hearing of the suit and such other
matters, as he may think fit.
158. No affidavit to be made : - No affidavit shall be made or
used by any party when the suit is on board for directions,
except by leave of the Judge.
Discovery and Inspection
164. Agent may make affidavit of documents when a party is
not residing in Greater Bombay:- Where the transactions which
form the subject-matter of a suit have been carried on wholly
or principally in Greater Bombay and any party is not residing
in Greater Bombay at the time an affidavit of documents is
required to be filed, such affidavit may be made on behalf of
such absent party by his agent in Greater Bombay. For the
purpose of this rule, a resident partner in Greater Bombay shall
be the agent of his non-resident partner.
165. Procedure where the affidavit is required to be made
by absent party personally :- If in the case provided for by
the last preceding rule any party desires to have such affidavit
made by all or any of the absent parties personally, he shall be
at liberty to apply on summons for an order to that effect to the
Judge in Chambers, setting forth the grounds for making such
order, and the Judge after hearing the opposite party may make
such order; but the party obtaining it shall, before serving the
same, deposit a sum of rupees one hundred in Court for the
cost of the opposite party of such order and affidavit which
costs shall be dealt with by the Judge who tries the case.
172. Effect of non-disclosure of documents :-
No documentary evidence in the possession or power of any
party, which should have been but has not been disclosed in the
affidavit of documents, or which is required to be disclosed in
a supplementary affidavit of documents and has not been
disclosed shall be received at any subsequent stage of the
proceedings, unless good cause is shown to the satisfaction of
the Court for the non-disclosure thereof; and the Court
receiving any such evidence shall record the reasons for so
doing.
[emphasis supplied]
8 Under Order VII, Rule 14 of the CPC where a plaintiff is suing upon a
document or relies upon document in his possession or power in support of
its claim, such document has to be entered by the plaintiff in a list to be
annexed to the plaint and the plaintiff shall also produce it in Court when the
plaint is presented. The plaintiff shall also at the time the plaint is presented
produce the documents and copies thereof.Where any such document is not
in the possession or power of the plaintiff, then the plaintiff, where possible,
shall state in whose possession or power, the document is. If any such
document ought to be produced with the plaint or entered in the list to be
added or annexed to the plaint is not so produced or entered accordingly, the
plaintiff may still produce the document and the Court may receive the same
in evidence provided the plaintiff obtains leave of the Court at the hearing of
the suit. This Rule is not applicable to documents produced for the cross
examination of the ‘defendant’s witness’ not ‘plaintiff’s witness’ as the Rule
reads. I am reading as ‘defendant’s witness’ and not ‘plaintiff’s witness’ in
view of the judgment of the Apex Court in the matter of Salem Advocate
Bar Association, T.N. V/s. Union of India1 in which the Apex Court has
observed that the Legislature by mistake has used the words “plaintiff’s
witnesses” instead of “defendant’s witnesses”. Paragraph 34 and 35 of the
said judgment read as under:
1 (2005) 6 SCC 344
34 Order VII Rule 14 deals with production of documents
which are the basis of the suit or the documents in plaintiff's
possession or power. These documents are to be entered in the
list of documents and produced in the Court with plaint. Order
VII Rule 14(3) requires leave of Court to be obtained for
production of the documents later. Order VII Rule 14(4) reads
as under:
"14. (4) Nothing in this rule shall apply to
document produced for the cross examination of the
plaintiff's witnesses, or, handed over to a witness
merely to refresh his memory."
In the aforesaid Rule, it is evident that the words 'plaintiff's
witnesses' have been mentioned as a result of mistake seems to
have been committed by the legislature. The words ought to be
'defendant's witnesses'. There is a similar provision in Order
VIII Rule 1A(4) which applies to a defendant. It reads as
under:
"1-A. (4) Nothing in this rule shall apply to
documents --
(a) produced for the cross-examination of the
plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his
memory."
35 Order VII relates to the production of documents by the
plaintiff whereas Order VIII relates to production of documents
by the defendant. Under Order VIII Rule 1A(4) a document not
produced by defendant can be confronted to the plaintiff's
witness during cross-examination. Similarly, the plaintiff can
also confront the defendant's witness with a document during
cross-examination. By mistake, instead of 'defendant's
witnesses', the words 'plaintiff's witnesses' have been
mentioned in Order VII Rule (4). To avoid any confusion, we
direct that till the legislature corrects the mistake, the words
'plaintiff's witnesses, would be read as 'defendant's witnesses'
in Order VII Rule 4. We, however, hope that the mistake would
be expeditiously corrected by the legislature.
[emphasis supplied]
9 Therefore, the Rule 14 of Order VII of the CPC is very clear that the
plaintiff shall produce all the documents with a copy thereof and also enter
all the documents in a list annexed to the plaint and if any document is not
produced when the plaint is presented should state, if possible, in whose
possession the document is. If the plaintiff wishes any document other than
those documents produced with the plaint and not entered in the list at the
hearing of the suit to be received in evidence on his behalf, the plaintiff has
to obtain leave of the Court. Sub-rule, (1) is a blend of old sub-rule (1) and
(2) of Rule 14, sub-rule (2) is from old Rule 15 and sub-rules 3 and 4 were
originally part of Rule 18 of Order VII. Therefore, in Order VII, the new
Rule 14 is a mixture of old Rules 14, 15 and 18. You will find similar
provision in Order VIII, Rule, 1-A regarding written statement and
counterclaim. Rule 6A (4) says for a counterclaim rules of plaint shall
apply.
10 Moving to Rule 1 of Order XIII, it provides that the parties or the
pleader shall produce on or before the settlement of issues, all the
documentary evidence in original where copies thereof have been filed
along with the plaint or written statement and the Court shall receive the
documents so produced. A precondition to receive those documents is in the
Proviso, i.e., the documents should be accompanied by an accurate list
thereof prepared in such form as the High Court directs. Sub-rule 1 does not
apply to documents produced for the cross-examination of the witnesses of
the other party or handed over to the witnesses merely to refresh his
memory.
11 Therefore, it cannot be disputed that if the plaintiff fails to mention
the documents in the list annexed to the plaint and place the originals and a
copy on record of such documents which are required to be produced with
the plaint, the plaintiff is not entitled to produce any additional document
thereafter except with the leave of the Court. The freedom that the parties,
i.e., the plaintiff and the defendants had pre-2002 amendment, to produce all
documentary evidence of every description or possession of their power on
which they intend to rely and which has not already been filed in Court is no
more available post-amendment. Under the old Order VII, Rule 1(2) of
CPC, it says 'where he sues on any document in his possession, he shall
deliver the same in plaint and those not in his possession, he shall enter the
same in a list to be annexed to the plaint'. Under the old Order XIII, Rule 1,
parties could produce all the documentary evidence, on which they intended
to rely and which has not been filed in the Court, at or before the settlement
of issues. The amended Order XIII, Rule 1 says “.... where copies thereof
have been filed along with the plaint or written statement”. The words were
not there pre-amendment. Therefore, the parties were permitted to produce
those missed out documents by filing an affidavit of documents before or at
the time of settlement of issues. That freedom, as it appears from the
Commentary by Mulla on the Code of Civil Procedure (18th Edition), 2011,
to file documents in evidence at any subsequent stage of the suit stand
curtailed and this has been done to expedite the hearing of the suit and also
bar the litigants from taking the other party by surprise. Post-amendment, it
would appear, even the discretion the Court exercised relating to time when
the original documents have to be filed in a case is not left. It makes the
parties and pleaders to produce their original documents at the time the
plaint is filed and only those documents the originals whereof could not be
filed with the plaint and copies were filed, could be filed on or before the
settlement of issues. Or else at the time of the hearing, leave of the Court
has to be obtained to produce further documents.
12 The judgment of the Privy Council in Sulaiman Vs. Biyaththumma
and Ors. (supra) relied upon by the counsel for the plaintiff does not
anywhere state that only crucial documents have to be annexed to the plaint.
13 In my view, all documents are crucial. Other than the 21 documents
copies of which were filed in the compilation of documents filed when the
arrest application was moved, the remaining 135 documents appear to be all
emails and correspondence exchanged between persons who are not parties
to the suit or only one party is party to the suit. The plaintiff wants to rely
on those emails only because they are crucial to prove the plaintiff's case.
Certainly these emails were available at the time when the plaint was
presented and even before the amendment to the plaint was carried out. In
fact, the Privy Council, referring to Section 59 of the CPC of 1882 (Order
VII, Rule 14 of CPC 1908) in the Sulaiman Vs. Biyaththumma and Ors.
(supra) also states that a document referred to or sought to be enforced in a
suit must be produced in Court when the plaint was presented or a copy
thereof must be filed with the plaint. Therefore, it does not help the
plaintiff's case at all.
14 Even the judgment passed by this Court in the case of Mohanraj
Rupchand Jain Vs. Kewalchand Hastimal Jain & Ors. (supra) which was
in a writ petition challenging the order passed by the revisional bench of the
Small Causes Court, Mumbai, in paragraphs 5, 6 and 8 which are
reproduced herein, confirms the fact that Order VII Rule 14 provides that a
document which ought to be produced by the plaintiff when the plaint is
presented or to be entered in the list annexed to the plaint but is not
produced or entered and if the plaintiff wants to produce the same later, it
can be done only with the leave of the Court. Paragraph 5, 6 and 8 read as
under :
5. Perusal of the order passed by the trial Judge discloses
that the petitioner had taken out the notice for rejecting the
documents which were filed along with the affidavit under
Order XVIII, Rule 4 of the Code as also for rejection of the
suit. The learned Judge, after hearing the parties and on
consideration of the Order VII, Rule 14 of the Code, held that
though in terms of the Order VII, Rule 14 of the Code it is
necessary for the parties to produce documents on which the
suit is based as also to submit a copy of the list of documents
which are relied upon, the petitioner having failed to make out
any case of prejudice on account of admission in evidence, the
documents which are sought to be produced by the respondents
along with the affidavit under Order XVIII, Rule 4 of the
Code, while reserving the right of the petitioner to lead
necessary evidence in rebuttal, has rejected the said application
filed by the petitioner. As far as the order of the Revisional
Bench is concerned, it discloses that the revision application
has been dismissed as not maintainable after taking into
consideration the decision in Sukhdev Prasad Raghubir's case
(supra).
6. It cannot be disputed that in terms of Order VII, Rule 14
of the Code, where a plaintiff sues upon a document in his
possession or power in support of his claim, he shall enter such
document in a list, and shall produce it in Court when the
plaint is presented by him and shall, at the same time deliver
the document and a copy thereof to be filed with the plaint.
Sub-rule (3) of Rule 14 thereof clearly provides that a
document which ought to be produced in Court by the plaintiff
when the plaint is presented, or to be entered in the list to be
added or annexed to the plaint but is not produced or entered
accordingly, shall not, without the leave of the Court, be
received in evidence on his behalf at the hearing of the suit.
Sub-rule (4) thereof provides that nothing in the said rule shall
apply to document produced for the cross-examination of the
plaintiffs witnesses, or, handed over to a witness merely to
refresh his memory. Similar is the provision under the Subclause
(3) of Rule 1 of the Order XIII of the Code. Being so, it
cannot be disputed that if the plaintiff fails to mention the
documents in the list annexed to the plaint and to place on
record a copy of such document, which is required to be
produced under the law at the time of filing of the plaint, the
plaintiff is not entitled to produce any additional document
thereafter, without the leave of the Court. The contention of the
learned advocate for the petitioner, however, is that such leave
has necessarily to be obtained prior to the documents being
placed on record. The contention cannot be found fault with.
But, at the same time, it is also to be noted that nothing
prevents the Court in its discretion to grant leave subsequent to
the documents being produced before the Court even though
such documents were not entered in the list annexed to the
plaint. It would depend upon the facts of each case.
Undoubtedly, the order of the Court in that regard will have to
be a speaking and reasoned order. In the case in hand, however,
the said issue does not arise at all.
[emphasis supplied]
7. ….......
8. It cannot be forgotten that the provision comprised under
Order VII, Rule 14 of the Code relates to the procedure to be
followed in the civil proceedings before the Court. The said
provision is essentially to assist the parties as well as the Court
in the matter of production of the documentary evidence of the
plaintiff while adjudicating the dispute raised before the Court.
Being so, it is essentially to assist the parties and the Court to
arrive at an appropriate decision on the matter in dispute.
Being so, the provision in that regard is necessarily to be
construed liberally, and no pedantic approach should be
adopted while enforcing the said provision of law. The
documentary evidence which is not disputed to be relevant and
material for the just and appropriate decision in the matter,
merely because the respondents had failed to enter the same in
the list annexed to the plaint, could not be ignored, unless it is
shown by the petitioner that there would be real prejudice
caused to the petitioner on account of the respondents being
allowed to produce such documents. A document which
pertains to the matter in issue cannot be said to cause prejudice
to either of the parties, merely because there is some delay in
production of such document. It is to be noted that the
deponent who has filed the affidavit on behalf of the
respondents along with the documents is yet to be crossexamined
and evidence in that regard by the petitioner is yet to
be led in the matter. Being so, there would be ample
opportunity to the petitioner to meet those documents in the
course of recording of evidence including the crossexamination
of the witness of the respondents.
15 The Court also says that nothing prevents the Court in its discretion to
grant leave subsequent to the documents being produced before the Court
even though such documents were not annexed to plaint or included in the
list annexed to the plaint and no pedantic approach should be adopted. At
the same time, this Court also says it would depend on the facts of each case
and the order of the Court in that regard will be speaking and reasoned
order. The Court cannot give a speaking and reasoned order unless an
application is made for leave to produce such documents that were not
presented with the plaint or entered in the list annexed to the plaint.
Therefore, the plaintiff will have to apply explaining as to why these
documents were not annexed to the plaint or included in the list of
documents and why leave should be granted. It is not for the defendants, as
submitted by Mr.Rajasekhar, to take out an application explaining what
prejudice will be caused if the document is accepted in evidence.
16 Coming to the affidavit of documents under Order XI, Rule 12 of the
CPC any party, may, without filing any affidavit, apply to the Court for an
order directing any other party to any suit to make discovery on oath of the
documents which are or have been in his possession or power, relating to
any matter in question therein and if the Court allows the application then
the party against whom such an order under Rule 12 is made, shall file an
affidavit of documents under Rule 13 of Order XI and specify which (if any)
of the documents therein mentioned he objects to produce. This has to be
read with Order VII, Rule 14 [and Order VIII, Rule 1-A(2)] of CPC which
says where any document is not in the possession or power of the plaintiff/
[defendant], he shall, where possible, state in whose possession or power it
is.
17 As regards the submission of Mr.Rajasekhar that this Court had
directed the plaintiff to file their affidavit of documents and hence the
plaintiff is filing the affidavit of documents, it is true that this Court had
directed filing the affidavit of documents and complete discovery and
inspection.
Mr.Rajasekhar may find support in Order XI, Rule 14 and High Court
(OS) Rule 172, which are reproduced earlier. Rule 12 and Rule 14 are
independent of each other and it is not necessary in every case that an
application has to be made only under Rule 12 first. Rule 13 is a result of
an order passed on an application made under rule 12. But under Rule 14,
no such application is necessary. The Court has the power to direct
production of documents without any application by any party and such
production of documents that the party has in his possession or power
relating to any matter in question in the suit, has to be made on oath. A
party can produce documents in his possession or power under oath only by
filing an affidavit of documents. It has been a practice of this Court, once
the pleadings are completed, to direct parties to file affidavit of documents
and also complete discovery and inspection within a fixed period. This
means that all parties are directed to produce on oath, by filing an affidavit
of documents, all documents in their possession or power, that they feel is
required relating to any matter in question in the suit. As and when they are
disclosed in the affidavit, the other party gets to take inspection and also
gets copies thereof. Just because a document which has not been referred to
at all in the plaint is disclosed for the first time in the affidavit also will not
cause any prejudice to the other party. Simple disclosure does not mean that
the document will be received in evidence and even if received and marked
as an exhibit, the other party may cross examine the witness.
In this case also directions have been passed to the parties to produce
upon oath all documents that it has in its possession or power relating to any
matter in this suit. Hence the affidavit of documents as being filed by the
plaintiff has to be accepted and taken on record.
18 Rule 157 of the High Court (OS) Rules also provides that the Court
for speedy determination of the suit and the avoidance of multiplicity of
interlocutory proceeding, shall give such directions with respect of
admission of facts and documents, discovery inspection and production of
documents etc.
19 Under Rule 164, it provides “at the time an affidavit of documents is
required to be filed, such affidavit may be …......”. So also Rule 165 that
provides, “if in the case provided for by the last preceding rule any party
desires to have such affidavit made.............” Therefore, under Rule 164, it
says “affidavit of documents is required to be filed, such affidavit” and Rule
165 says, “in the case provided for in the last preceding rule........... such
affidavit made”. “Such affidavit” could mean an affidavit of documents
required to be filed under Order XI, Rule 13 pursuant to an order passed
under Order XI, Rule 12 or as per directions passed under Rule 14. So in
cases where an affidavit of documents is required to be filed under Order
XI, Rule 13 or 14, then, when such an affidavit is required to be filed an
agent may do so as provided under Rule 164. Rule 165 only provides for
the procedure to be followed where such affidavit is required to be made by
the absent party personally.
20 It is well settled that the Bombay High Court (OS) Rules are like
special law and the rules will prevail. Rule 172 provides, no documentary
evidence in the possession or power of any party, which should have been
but has not been disclosed in the affidavit of documents, or which is
required to be disclosed in a supplementary affidavit of documents and has
not been disclosed shall be received at any subsequent stage unless good
cause is shown for non-disclosure thereof. Therefore, this affidavit of
documents being filed by the plaintiff can be accepted and only for those
documents that have not been annexed to the plaint and/or disclosed in the
affidavit of documents, leave of the Court is required at the hearing of the
suit to be received in evidence.
21 In this Court, there has been a practice where plaint is filed only with
photocopies of documents relied upon and such a plaint is admitted. There
has also been a practice of the Prothonotary and Senior Master and the
Courts herein directing the parties, after the pleadings are completed, to file
their affidavit of documents and complete discovery and inspection.
If the plaintiff/defendant wants any document, copies whereof are not
annexed to the plaint or written statement and/or not included in the list of
documents annexed to the plaint/written statement or in the affidavit of
documents, to be received in evidence at the hearing of the suit, the
plaintiff/defendant can always apply to the Court for leave.
22 In the circumstances, if the plaintiff wishes to rely upon any
document other than the 21 documents that were produced at the time of
arrest of the 1st defendant vessel and additional 135 documents referred to in
the affidavit of documents, the plaintiff may apply if so advised. Such leave
can be applied for, to reduce multiplicity of proceedings and to avoid delay
in beginning of trial, in the affidavit of evidence itself filed under Order
XVIII, Rule 4 of CPC.
23 I should also clarify that this order should not be construed as making
any observation on the admissibility of any of the 156 documents listed.
(K.R.SHRIRAM, J.)
No comments:
Post a Comment