Says the Supreme Court, that it would be proper to encourage the belief in litigants that the imperative of Order 8, Rule 1, must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. The provisions of Sub-rule (3), of Rule 14, of Order 7 is an exception to the provisions of Sub-rule (1), of Rule 14, of Order 7 and Sub-rule (1), of Rule 1 of Order XIII. The provision of Sub-rule (3), of Rule 14, cannot be followed as a rule. In my humble view Order 13, Rule1, as well as Order 7, Rule 14, Sub-rule (1) and (3) are required to be read together harmoniously so that Rule 14(1), of Order 7, and, Rule 1, of Order 13, are not rendered nugatory. Reading together, what leads one to the conclusion is that if the plaintiff applies for seeking for leave to produce documents to be received in evidence at the hearing of the suit which documents were not produced on or before settlement of issue or at the time of production of the plaint, the Court will have to exercise sound discretion having regard to facts and circumstances of each case. True, mere non mention of the documents in the plaint does not affect the power of the Court to grant leave to produce the document/s at the subsequent stage. Leave of the Court is condition precedent under Sub-rule (3), of Rule 14, of Order 7 read with Sub-rule (1), of Order 13. Order 7, Rule 14(3) being an exception under Order 7 Rule 14(1) as well as Order 13, Rule 1(1) the powers to grant leave have got to be exercised in rare cases and not in a routine manner, and, that in my view would be correct position of law in the matter of granting leave.
IN THE HIGH COURT OF BOMBAY AT GOA
Writ Petition No. 418/2010
Decided On: 02.07.2010
Vitorino Rodrigues and Ors. Vs. Smt. Nirmalabai Shivajirao Dessai (deceased) through L.R's and Ors.
Hon'ble Judges/Coram:
N.A. Britto, J.
Citation: 2010 (6) ALLMR 208
1. Rule. By consent heard forthwith.
2. The Petitioners are the defendant Nos. 1, 2, 5(a), 5(b) and 6 in Regular Civil Suit No. 196/2000. In this writ petition they have challenged the order dated 24.5.2010 by which the plaintiffs have been allowed to produce certain documents including a judgment in Special Civil Suit No. 9/1995 which was delivered on 28.8.2001 much after filing of the suit and list of documents by the plaintiffs which list was filed on 24.10.1997.
3. There is no dispute that all the documents sought to be produced are in connection with the subject matter of this suit as well as civil suit which was decided by judgment dated 28.8.2001. The application was filed after both the parties have led evidence and the case was fixed for final arguments. Earlier the plaintiff had filed an application on 22.8.2003 which was disposed off by order dated 16.1.2004.
4. Special Civil Suit No. 9/95, decided on 28.8.2001 was filed by plaintiffs against one M/s Shantilal Kushaldas & Brothers for their eviction from the suit property but was decreed only as regards the recovery of arrears of rent of mesne profits up to October, 1995 as it appears that, by then the said M/s Shantilal Kushaldas & Brothers had surrendered the suit property.
5. The application dated 5.5.2010 was filed under Order 7, produced were found in the old files which were seen at the time of preparing written arguments to be filed in the said civil suit. The application was contested by the defendants stating that the application was filed with the sole intention of delaying the suit in as much as documents were not relevant as the said defendants were not parties to the said civil suit.
6. The learned trial Court came to the conclusion that all the documents sought to be produced by the plaintiffs are relevant to decide the present suit as they are related to grant of lease, vacating of the plot and payment of rent, in the light of pleadings of para Nos. 6 and 9 of the plaint and issue No. 4. The learned trial Court also took note of the fact that the said defendants were granted opportunity to produce additional documents after completion of the evidence of the plaintiffs and therefore it was necessary to give equal opportunity to the plaintiffs as well. Rs. 200/- were granted by way of costs to the defendants.
7. Shri D'Souza, learned Counsel appearing on behalf of the petitioners/defendants submits that the suit was initially filed in the year 1997 before it came to be given Regular Civil Suit No. 196/2000. Learned Counsel further submits that list of documents was filed by the plaintiffs on 29.10.1997. Shri D'Souza concedes that the judgment sought to be produced was delivered on 19.9.2001 but submits that nothing prevented the plaintiffs from producing the same when the plaintiffs filed their application to produce additional documents on 22.8.2003 which was disposed of by order dated 16.1.2004 since the plaintiffs as well as their Advocate was the same. Learned Counsel further submits that by producing the said documents, the plaintiffs are only indulging dilatory tactics. Learned Counsel also submits that the other documents sought to be produced were available with the plaintiffs prior to the filing of the suit. Shri D'Souza has placed reliance on AIR 1994 Rajasthan 110 and AIR 2003 Rajasthan 1.
8. Shri Usgaonkar, learned Counsel appearing on behalf of the plaintiffs, submits that the said order has been passed in discretionary jurisdiction and ought not to be interfered with in writ jurisdiction. He further submits that there is no perversity as regards the same to call for interference by this Court in certiorari jurisdiction which is akin to revisional jurisdiction.
9. Shri Usagaonkar, has submitted that granting an application for production of documents would not be case decided for the court to exercise revisional jurisdiction and in this regard has placed reliance on United India Insurance Company Pvt. Ltd. case 1995 (1) GLT 1 wherein the learned single judge of this Court has held that acceptance of documents when the opposite side has ample opportunity to test the veracity or genuineness is not a case decided. Shri Usgaonkar, has placed reliance on Tirumala Tirupati Devasthanams case MANU/SC/0173/1998 : (1998) 3 SCC 331 to contend that a judgment sought to be produced need not necessarily be inter partes. Indeed the Apex Court in the said decision has held that a judgment rendered in the earlier suit declaring a title of a party in respect of same land would be admissible even though the other party was not a party to the earlier suit. Shri Usgaonkar has also placed reliance on decision of this Court in the case of Real Estate Agencies 2007(1) GLR 57 : 2006 (5) ALL MR 438. Learned Counsel has also placed reliance on the case of Essen Deinki MANU/SC/0894/2002 : (2002) 8 SCC 400 and has submitted that jurisdiction of this Court under Article 227 of the Constitution is revisional in nature and therefore cannot extend to correct all errors but only errors of law patently on record. Indeed the Apex Court has held in the said case, that even wrong decisions made by the lower Court, cannot be interfered with under Article 227, if such decision is made within the jurisdiction of the lower Court. At this stage reference could be made to some other decisions of the Apex Court. It is consistent view of the Apex Court from Surya Devi Rai case MANU/SC/0559/2003 : 2003 (6) SCC 675 and Abdul Razak case MANU/SC/0027/2010 : (2010) 2 SCC 432 that under Article 227 this Court will interfere in supervisory jurisdiction only in cases where the subordinate Court has acted without jurisdiction----by assuming jurisdiction where their exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice and that certiorari jurisdiction none is available to correct mere errors of fact or of law unless(i) error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and (ii) a grave injustice or gross failure of justice has occasioned thereby.
10. Admittedly the application was filed by the plaintiffs in terms of Order 7, Rule 14(3), C.P.C. As regards this provision it has been held by this Court in Smt. Chitrakala Fal Dessai (supra) that while persuading the court to grant leave, a party has to show cause why the documents could not be produced earlier, not a very strict, restricted and pedantic view can be taken of this provision. Ultimately the court will have to ensure that all documents which assist it to resolve the controversy before it, in an efficient manner are available for its perusal. Unless the Court comes to a conclusion that the facts are so gross that the only inference that can be drawn from the conduct of the party is that the documents which are sought to be produced are manufactured, the Court should not generally deny leave to produce documents because ultimately it is always open to the other side to cross examine the party who produced the documents to establish that the said documents are not relevant or that the case based on the said documents is not true.
11. In M/s Real Estate Agencies (supra) the learned single Judge has held that in so far as production of documents is concerned, no doubt the requirement is that the party should produce documents on which they rely in support of their claim at the initial stage, but there is no bar on the part of the party to tender documents during the proceeding till the proceedings are finally concluded. In a given and exceptional case, parties are even permitted to tender documents at the stage of appeal. Therefore, depriving the party of tendering evidence by way of documents in support of their claim, would be depriving them of an opportunity to substantiate their claim.
12. Reverting to Gopal case AIR 1994 Rajasthan 110, this case was rendered with reference to Order 13 Rule 2 as it was then existing. The documents were sought to be introduced at later stage and no satisfactory explanation was given for inordinate delay and as such application was rejected by the trial Court and up held by the High Court with a further observation that jurisdiction under Section 115 of C.P.C. of revisional Court to interfere with was not so unlimited.
13. Likewise in Mohan Raj case AIR 2003 Rajasthan 1 the applicants had failed to furnish good cause for delay and therefore application was rejected by trial court and that decision was upheld by the High Court with further observation that documents would not have any bearing on evidence already on record.
14. The Calcutta High Court in Kejriwal Enterprises case AIR 2004 Calcutta 225 has held that the documents, which have not been presented alongwith the plaint and also have not been entered in the list that have been added or annexed to the plaint as per provision 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.
15. Formerly, prior to the amendment brought about with effect from 1.7.2002, documents which were not produced with the plaint or list alongwith it or not produced at or before settlement of issues could have been produced, good cause being shown to the satisfaction of the Court, for their non production. Presently, leave of the court is required to be taken before a document is received in evidence. Does that mean that the plaintiff can get leave to produce documents which are not produced earlier as matter of course?. In fact, Sub-rule (3) of Rule 14, of Order 7, states 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. Certain observations of the Apex Court, though with reference to Order 8, Rule 1, can be taken note of. Says the Supreme Court, that it would be proper to encourage the belief in litigants that the imperative of Order 8, Rule 1, must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. The provisions of Sub-rule (3), of Rule 14, of Order 7 is an exception to the provisions of Sub-rule (1), of Rule 14, of Order 7 and Sub-rule (1), of Rule 1 of Order XIII. The provision of Sub-rule (3), of Rule 14, cannot be followed as a rule. In my humble view Order 13, Rule1, as well as Order 7, Rule 14, Sub-rule (1) and (3) are required to be read together harmoniously so that Rule 14(1), of Order 7, and, Rule 1, of Order 13, are not rendered nugatory. Reading together, what leads one to the conclusion is that if the plaintiff applies for seeking for leave to produce documents to be received in evidence at the hearing of the suit which documents were not produced on or before settlement of issue or at the time of production of the plaint, the Court will have to exercise sound discretion having regard to facts and circumstances of each case. True, mere non mention of the documents in the plaint does not affect the power of the Court to grant leave to produce the document/s at the subsequent stage. Leave of the Court is condition precedent under Sub-rule (3), of Rule 14, of Order 7 read with Sub-rule (1), of Order 13. Order 7, Rule 14(3) being an exception under Order 7 Rule 14(1) as well as Order 13, Rule 1(1) the powers to grant leave have got to be exercised in rare cases and not in a routine manner, and, that in my view would be correct position of law in the matter of granting leave.
16. Considering the facts of the case, the reasons assigned by the plaintiffs have been accepted by the learned trial Court and leave has been granted to plaintiffs to produce the said additional documents. No prejudice can be cause to the defendants as they would be entitled to cross examine the plaintiffs on the said documents.
17. The question has been only of costs. Counsel appearing on behalf of the plaintiffs fairly concedes that costs of Rs. 200/- were inadequate. Learned Counsel has no objection in case they are increased. It is interesting to note that application dated 22.8.2003 was granted with costs of Rs. 500/-. Costs have to be realistic to some extent, therefore, the costs which have been fixed by the learned trial Court are increased to Rs. 2500/-. The same shall be deposited by the plaintiffs before the trial Court at the first date they appear before it.
18. Consequently, subject to the above modification of the appear before learned trial Court on the date which learned Counsel inform has already been fixed. Interim relief if any shall stand vacated. Learned trial court is expected to expedite the trial and give preference to the suit, considering that it was filed in the year 1997 and the petitioners are senior citizens.
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