At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE SUBRAMANIAN
For the Appearing Parties: ---------
1. Pleadings are complete in C.S.No.452 of 2016. The matter was posted for filing of affidavit of admission/ denial. The learned counsel for the defendant has filed the affidavit of admission/ denial. In C.S.No.829 of 2009, the learned counsel for the defendants have not filed their affidavit of admission/ denial.
2. Mr.K.S.V.Prasad, learned counsel appearing for the defendant in C.S.No.452 of 2016 and the plaintiffs in C.S.No.829 of 2009 would submit that all the three suits stem out of the same Joint Venture Agreement between the parties viz., an agreement for production of a film 'MARMAYOGI'. Therefore, according to Mr.K.S.V.Prasad, all the suits have been directed to be tried together, though the trial in C.S.No.821 of 2009 is almost complete.
3. Coming to the question of filing of affidavit of admission/ denial, it is the contention of Mr.K.S.V.Prasad that such an exercise is unnecessary, in as much as, the documents that have been filed along with the plaint in the other two suits viz., C.S.No.829 of 2009 and C.S.No.452 of 2016 are same as the documents that had already been filed in C.S.No.821 of 2009, where the evidence is almost complete and the parties have either admitted or denied those documents in the evidence already. Therefore, according to Mr.K.S.V.Prasad, the exercise of filing of affidavit of admission/ denial need not be carried out in C.S.Nos.452 of 2016 and 829 of 2009. He would also make it clear that the affidavit of admission/ denial shall be filed in respect of the documents which are not already made part of the evidence in C.S.No.821 of 2009.
4. It is the argument of Mr.K.S.V.Prasad, that though Rule 4 of Order XI of the Code of Civil Procedure as amended by the Commercial Courts Act, 2015 uses the word 'shall', being a procedural law, it should be construed as 'may', since it does not prescribe any penal consequences upon failure of compliance.
5. Drawing an analogy to Order VI Rule 15A of the Code of Civil Procedure as amended by the Commercial Courts Act, 2015 and pointing out that non-compliance with the provisions of Order VI Rule 15A lead to a very serious consequence of the party not being permitted to rely upon the pleadings, if the affidavit contemplated under sub-rule 1 of Rule 15A of Order VI is not filed, Mr.K.S.V.Prasad would submit that the legislature has consciously not prescribed any penal consequences for non-compliance with Rule 4 of Order XI. Therefore, it can only be treated as directory and not mandatory in respect of cases in which some of the documents have already been marked in evidence or in cases where there is clubbing of two or more suits, where documents have been made part in one suit or the other.
6. He would also draw my attention to the judgment of the Hon'ble Supreme Court in Mannalal Khetan & others Vs. Kedar Nath Khetan & others reported in AIR 1977 SC 536, wherein, the Hon'ble Supreme Court has reiterated the settled position of law that, the provision of procedural law which do not prescribe a consequence on failure of compliance, need not be treated as mandatory, even if the word 'shall' is used.
7. Reliance is also placed on the judgment of the Hon'ble Supreme Court in Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh & Another reported in AIR 2006 SC 269. The above principle of law that a provision in procedural enactment which does not contain a consequence for noncompliance need not be treated as mandatory even though the language used is mandatory, is too well settled.
8. In the case on hand, as already pointed out, the evidence in C.S.No.821 of 2009 is complete and the suit is at the stage of arguments. Of course, in the other suits the evidence has to be let in, most of the documents are common to all the three suits. Therefore, as rightly pointed out by Mr.K.S.V.Prasad, filing of an affidavit of admission/ denial for documen
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ts which are already subject matter of evidence in C.S.No.821 of 2009 will be an exercise in futility. 9. I am inclined to accept the submissions of Mr.K.S.V.Prasad and conclude that the parties can file their affidavits of admission/ denial only in respect of those documents which are not already been made part of the evidence in C.S.No.821 of 2009. 10. For filing such an affidavit, post on 22.09.2021.