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Birla Corporation Ltd. v/s Bhupen Halder


Company & Directors' Information:- BIRLA CORPORATION LIMITED [Active] CIN = L01132WB1919PLC003334

    C.O. No. 358 of 2014

    Decided On, 25 June 2015

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUISTICE SHIVAKANT PRASAD

    For the Petitioner: Arnab Das, Sreyash Basu Dasgupta, Advocate. For the Respondent: Asit Kumar Bhattacharya, Advocate.



Judgment Text

1. Learned counsel for both the parties are present. Heard the matter.

2. The instant application is directed against Order No. 15 dated January 9, 2014 passed by the learned Civil Judge(Senior Division) First Court, Alipore, on the ground that the learned Judge of the court below has illegally and with material irregularity permitted marking of those documents which are not made part of the plaint or formed the part of the documents sought to be relied upon by the plaintiff as exhibits in contravention of Order 7, Rule 14 of the Code of Civil Procedure.

3. It is contended that under Order 7, Rule 14 of the Code where a plaintiff sues upon a document or relied upon a document in his possession or power in support of his claim he is supposed to enter such documents in a list and to produce it before the court when the plaint is presented by the plaintiff with a copy of the same to be delivered to the opposite party. It is, further, submitted that the learned court below by passing the order impugned has failed to exercise his jurisdiction vested in law and not taking into consideration that under the provision of Order 7, Rule 14 (3) of the Code, any document which is sought to be produced by the plaintiff when the plaint is presented or sought to be entered in the list appended to the plaint, such document cannot be tendered or be received in evidence without the leave of the court.

4. In support of such contention, the learned counsel for the petitioner has pressed in service a decision of Abdul Khader alias Abdul Rauf and others v. Aktharunnisa Begum (died) by LRs. And others reported in AIR 2004 AP 214 wherein it has been held that admission of documents produced without seeking leave under the provision of Order 7, Rule 14 (3) of the Code is invalid and impugned order cannot be sustained.

5. Yet another decision of S. Rathinaswamy and others v. S. Bhanumathi and others reported in AIR 2006 Mad 221 has been referred to in support of the case of the petitioner wherein the District Munsif dismissed the applications filed by the plaintiffs after finding that C.P.C.(Amendment) Act 2002, Order 18, Rule 17 C.P.C. had been deleted and hence P.W. 2 could not be recalled. The question was whether the impugned order declined to reopen case to recall P.W. 2 and to receive documents was sustainable. The Hon’ble Court observed that trial had commenced after coming into force of amendment Act. However, plaintiffs had stated reasons under Order 7, Rule 14 (3) of the Code that the documents were not earlier traceable that village plan and survey plan were public documents. In that set of facts, it was held that the court below ought to have permitted the plaintiffs to produce documents and exercising its discretion under Order 7, Rule 14 (3).

6. I have respectfully gone through the above cited decisions. I am of the view that no leave of the Court has been taken as per the provision of Order 7, Rule 14 (3) of the Code, by the opposite party/plaintiff.

7. Learned counsel for the opposite party in support of his case has referred to a decision of Bipin Shantilal Panchal v. State of Gujarat and another reported in (2001) 3 Supreme Court Cases 1 wherein it has been held thus:-

"It is an archaic practise that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. Such practices when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.

When so recast, the practise which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. There is no illegality in adopting such a course."

8. I have respectfully gone through the decision which is in connection with the criminal trial and in my humble opinion, the principle laid is not applicable in the instant case of a civil trial where there is specific provision under the Code of Civil Procedure as per Order 7, Rule 14 (3) that it is incumbent and expedient on the part of the plaintiff to have taken out an application for leave of the court to press in service the documents subsequently to be relied upon by the plaintiff/opposite party.

9. Thus, in the context of the above, this Court finds

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that there is merit in this revisional application. Accordingly, it is allowed without any order as to costs. 10. However, the plaintiff/opposite is at liberty to file application for leave under the provision of Order 7, Rule 14 (3) of the Code of Civil Procedure with liberty to the petitioner/defendant to contest the application, if there be any objection. 11. The office is directed to supply photostat certified copy of this order to the applicant, if applied for, on urgent basis. Revisional application is allowed.
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