1. This is a petition filed under article 227 of the Constitution of India against the order dated 17.3.2011 passed by the Munsiff No.2, Kamrup, Guwahati in Title Suit No. 198 of 2009.
2. The impugned order as passed by the Munsiff No.2, Kamrup, Guwahati, the prayer of the defendants Nos.5 and 6, in the Title Suit No.198 of 2009 for leave to produce some documents, marked by them as Ext.B, Ext.C, Ext.D and Ext.E was rejected. The petitioners made attempt to explain the non-production in the appropriate stage by stating that the Principal, Central Training Institute, Civil Defence and Home Guards, i.e., the defendant No.6 could not locate documents. Therefore, when those documents on discovery were handed over to the counsel along with the examination-in-chief under order XVIII, rule 4 of the CPC. The Munsiff No.2, Kamrup, Guwahati held that the defendants had not filed the documents marked as Exts. B, C, D and E along with the pleadings. Even the defendant Nos.5 and 6 did not seek any leave of the court to allow them to introduce those documents and as such those documents were not received in the records but one document as marked Ext.A was received, for the reason that the said document came into being in the pendency of the suit and the defendants obviously could not have produced it. As such the four documents were not received in the records. In the said order, it is recorded that those documents were not accepted for filing without seeking leave of the court. The defendant Nos.5 and 6 thereafter filed a petition under order VIII, rule 1A read with section 151 of the CPCseeking leave for filing the documents, i.e., B, C, D and E stating, inter alia, that the respondent No.6 had assumed the office in the month of May 2000. He was not abreast of the progress of the case and accordingly in a belated stage those documents were filed. The former Principal had retired after filing of the Written Statement and there was a dislocation in the administration. On discovery of the documents, the respondent No.6 placed those documents for production in the court. It is further stated that if those documents were not allowed to produce in the records, it would cause miscarriage of justice.
3. Mr. B. Chakraborty, learned counsel appearing for the petitioners submitted that the impugned order has been passed by the Munsiff No.2, Kamrup mechanically, not considering the aspect that those documents would enable the court in determining the real question in the controversy between the parties. The due diligence shall not come in the way of accepting the documents in view of the circumstances as narrated in the petition. Learned counsel for the petitioners also submitted that in the Written Statement the references of the documents have been elaborately made, but those were not catalogued as required. He submitted that the provisions of order VIII, rule 1A of the CPC provide that:
'[W]here the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, larger interest of the force and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.'
The said provisions cannot be read as mandatory, rather it has to be constructed as directory in nature and for that purpose by the Code of Civil Procedure (Amendment) Act, 2002. Rule 3A of order VIII of the CPC has been engrafted.
'(3) A document which ought to be produced in court by the defendant under this rule, but, is not so produced shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit.'
4. On scrutiny of the grounds such leave for receiving the documents in the records was not considered. The documents not filed earlier or not catalogued in the Written Statement cannot be allowed to form the part of the records. The fundamental principle which is required to be taken care of is the element of prejudice to the other side.
In support of his contention Mr. B. Chakraborty, learned counsel for the petitioners relied on a decision in Zolba v. Keshao and Others, (2008) 11 SCC 769 where the Apex Court held that:
"14. In Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344 it has been clearly held that the provisions including the proviso to order 8, rule 1, CPC are not mandatory but directory. It has been held in that decision that the delay can be condoned and the written statement can be accepted even after the expiry of 90 days from the date of service of summons in exceptionally hard cases. It has also been held in that decision that the use of the work ‘shall’ in order 8, rule 1, CPC by itself is not conclusive to determine whether the provision is mandatory or directory. The use of the work ‘shall’ is ordinarily indicative of mandatory nature of the provision but having regard to the decision in that case, the same can be construed as directory."
It has been further held in the said decision that:
"[I]t cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity in participating in the process of justice dispensation."
5. Mr. B. Chakraborty, learned counsel for the petitioners further submits that for purpose of leave ‘sufficient cause’ should be construed as to serve the ends of justice. To buttress his contention, a decision of the High Court of Andhra Pradesh in Kancherla Saradha Devi v. Saripella Sivaramaraju and Others, AIR 1995 AP 291, the Andhra Pradesh High Court held that:
"7. In addition to the legal implication stated above, this court feels that they may be further amplified. In the nature of the true implication of order 13, rules 1 and 2 of CPC the work ‘shall’ used therein may be difficult to be read as mandatory. In the Code of Civil Procedure there are various stages at which documents can be produced for the perusal of the court and for various other purposes."
Finally, the said decision concluded that if it is found that an order of refusing the leave to receive the documents would occasion of failure of justice or cause irreparable injury against him. It was made that such order should be allowed to stay.
6. Similarly, the Madras High Court in S. Mahimaidoss v. Vanathayya and Others,AIR 2000 Mad. 289 held that:
"Order 13, rule 4 speaks about documentary evidence to be produced at or before the settlement of issues and rule 2 speaks about effect of non-production of documents.
Order XIII, rule 1. Documentary evidence to be produced at or before the settlement of issues. (1) The parties or their pleaders shall produce at or before the settlement of issues, at the documentary evidence of everydescription in their possession or power, on which they intended to rely, and which has not already been filed in court, and all documents which the court has ordered to be produced.
(2) The court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
(2) Effect of non-production of documents: (1) no documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the court for the non-production thereof and the Court receiving any such evidence shall record the reasons for so doing.
(2) Nothing in sub-rule (1) shall apply to document, (a) produced for the cross-examination of the witnesses of the other party, or (b) handed over to a witness merely to refresh his memory.
As per rule, 2 unless good cause is shown to the satisfaction of the court for non-production of a particular document, the party cannot be permitted to file any document at a later date after settling of issues. Here, we have to consider whether the petitioner herein had furnished good cause for non-production of documents in time or not. I have already stated that necessary averments had been made in para 7 of the written statement regarding the legal notice of the plaintiff dated 29.4.1977. Admittedly, the plaintiff did not file reply statement disputing the said averment made in the written statement. No doubt, PW1 was examined and closed his evidence. However, 2nd defendant is yet to be examined. In such a circumstances I am of the view that the petitioner herein has made out a case for reception of the list of documents. Even if the said document is marked through the 2nd defendant, it is open to the first respondent- plaintiff to cross-examine him regarding the said document. The said opportunity is available to him even now.'
7. Mr. B. Chakraborty, learned counsel for the petitioners further submits that the provisions of order XIII, rules 1 and 2 are almost similar to the provisions of order VIII, rule 1 of the CPC. Hence, the principle as laid down for order XIII, rules 1 and 2 of the CPC can be applied to the provisions of order VIII, rule 1 of CPC. He also referred a decision of Orissa High Court in Bhikari Charan Patra v. Basanti Bewa and Others,AIR 1985 Ori. 49 where it has been held that -
'8. The technical ground on which the learned Munsif has rejected the petition is not sustainable. The learned Munsif rejected the first petitionas no particulars showing good cause to the satisfaction of the Court for the late filing had been furnished in the petition. The rejection was, therefore, not on merits, i.e. after taking the cause shown into consideration and holding the same unsatisfactory. The rejection was not due to the learned Munsif not being satisfied with the cause shown. The second petition with reasons was therefore maintainable.'
This decision has been referred for obvious purpose that even if by the order dated 17.3.2011, the trial court stated that for absence of any petition seeking leave the documents cannot be received. The said order dated 17.3.2011 cannot create any bar in filing the subsequent petition by the defendant Nos.5 and 6 seeking leave to file the same documents.
8. Mr. B. Chakraborty, learned counsel appearing for the petitioners submitted that the reasons assigned for rejecting the prayer for leave to receive the documents is not based on the principles of natural justice. The trial court has failed to measure up the consequences of the said order. If the said order is allowed to stay, it would cause the miscarriage of justice.
9. On the other hand, Mr. N.N. Jha, learned counsel appearing for the respondents submitted that it cannot be believed that respondent No.6 being the party in the suit and documents having been in his custody could not produce those documents at the time of filing the written statement. Such conduct only creates serious suspicion to impounding of documents and causes an adverse impact on the judicial proceeding. He submitted that the defendant Nos.5 and 6 with an oblique purpose did not deposit the documents so as to deprive the plaintiffs from giving the proper evidence of rebuttal, so far the contents of those documents are concerned. He further submitted that after the documents are filed, the plaintiffs got a right to inspect those documents and to insist the court for framing the appropriate issues. Moreover, the petitioner has got right to lead the evidence on consideration of the records. Belated acceptance of the documents would deprive the plaintiffs of those rights as safeguarded by the procedural law.
In support of his contention Mr. N.N. Jha, leaned counsel relied on a decision of this court in Nepal Das and Another v. Aditi Deori and Others, 2011 (2) GLT 336 where this court held as under:
'51. When the question of leave arises, the court has to see that the purpose of producing the documents at the pre-trial stage is not defeated. The leave has to be, therefore, granted bearing in mind the three conditions precedents, namely, (i) the petitioner must disclose whether the document, sought to be introduced, was in his ‘possession or power’ or not at the time of presentation of the plaint; (ii) In either case, whether the document was in his ‘possession or power’ or not, the reasons, why the documents was not produced along with the plaint, or reasons why the document was not entered in the list, as the case may be; and (iii) why it was not disclosed, at the time of the presentation of the plaint as to where the document and how he has come to know in whose ‘possession or power’ the document is or was.
52. The reasons for granting leave may vary from case to case; hence, no formula can be laid down on the principles on which the leave is to be granted. The granting of leave would depend on the given set of facts and circumstances in a case. Consequences of not filing of documents, where pleadings are presented without any list of documents as well as fall out of documents not being filed on or before settlement of issues and when production of document is not sought."
10. Mr. N.N. Jha, learned counsel appearing for the respondents further submitted that the contingencies has been formulated in the said decision. Nobody can escape the rigours of the procedural law which are designed to ensure the justice. This court finds that the following documents were sought to be introduced in the proceeding by the defendant Nos. 5 and 6:
(i) Certified copy of the revenue authorities showing allotment of land to defendants (petitioners); (Exhibit-B).
(ii) File No.CTI204/97 in original along with the copy of the letter dated 01.09.1981 showing handing over land on 21.05.1981; (Exhibit-C).
(iii) Communication dated 15.12.1987 as made to Director General Home Guards, Assam of function of the CTI; (Exhibit-D).
(iv) Certified copy of the Writ Petition (C) No.4850/08 (Exhibit-E).
11. It appears that all the documents are in the nature of the public documents within the meaning of section 74 of the Evidence Act. No doubt, the leave petition does not all the time persuade to grant leave unless the causes are demonstrated satisfactorily. The defendant Nos. 5 and 6 have committed latches by not giving the catalogue of documents in the written statement or by a separate sheet even though there is references of those documents in the written statement but mere reference cannot be treated sufficient. A catalogue of documents is either to be incorporated in the written statement or be produced along with written
Please Login To View The Full Judgment!
statement. If the documents are not available, in that case the defendants must indicate in the written statement about the possible custody for compelling production by the court. It appears that even after hearing, those documents were not introduced whereas the law has created a deadline for production of all the documents by the parties. On consideration of the nature of the documents and the explanation that was provided that the documents could not be filedbefore the settlement of the issues for change of the head of the institute namely, the Principal, Central Training Institute (CIT) cannot be discarded on the face. But to balance with the interest of justice, the court is bound to be liberal for achieving the ends of justice. As such the four documents as marked by the defendant Nos.5 and 6 as Ext.B, Ext.C, Ext.D and Ext.E shall be allowed to be introduced in the evidence by the defendant Nos.5 and 6 subject to condition that the defendant-petitioners shall pay a cost of Rs. 10,000 to the plaintiff-petitioner within a period of 15 days from today and for that purpose leave is granted to the defendant-petitioner Nos.5 and 6 under order VIII, rule 3A of the CPC. It is further directed that if the plaintiff-respondents intend to re-examine their witnesses in view of the documents as allowed to be introduced in the records, the trial court shall allow them the said opportunity. If the cost is not paid within 15 days, the trial court shall proceed with the suit in accordance with law without receiving those documents Ext.B, Ext.C, Ext.D and Ext.E in the records. For the aforesaid reasons, the petition stands allowed.