M/S GOLD ROCK WORLD TRADE LTD Vs. M/S VEEJAY LAKSHMI ENGINEERING WORKS LTD.
HIGH COURT OF DELHI
M/S Gold Rock World Trade Ltd
M/S Veejay Lakshmi Engineering Works Ltd.
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BADAR DURREZ AHMED, J. -
(1.) THE first application (IA 6388/2006) has been filed under Order 7 Rule 14, Order 16 Rule 1, read with Section 151 of the Code of Civil
Procedure 1908, (hereinafter referred to as 'the CPC') for production of
additional documents and for filing an additional affidavit. The second
application (IA 9770/2006) has been filed under Section 151 CPC for
summoning a witness from the Indian Overseas Bank, Defence Colony, New
Delhi for the production of certain documents mentioned in the said
application. Essentially, the question relates to the production of documents
by the plaintiff.
(2.) THE suit is at the stage where the plaintiff has closed its evidence in affirmative. The plaintiff's witnesses have been cross -examined and now
the defendant's witnesses have to be cross -examined. Both these applications
were filed prior to the defendant's witnesses having filed their affidavits by
way of evidence. The learned counsel for the plaintiff/applicant submitted
that these documents, which are to be produced at this stage, were
inadvertantly left out by the plaintiff and the plaintiff's attention was drawn to
them only in the course of the cross -examination of PW2 by the defendant
wherein specific questions regarding the settlement of the claims of the
foreign buyer COGETEX and also of the filing of the suit in Switzerland
against the plaintiff were raised.
(3.) ORDER 7 Rule 14 reads as under: -
"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 by him 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, where 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 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."
A plain reading of Order 7 Rule 14 (3) makes it clear 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. The learned
counsel for the plaintiff submits that leave of the Court ought to be granted to
the plaintiff for producing the additional documents referred to in the
application under Order 7 Rule 14 and as also for calling the witness for
producing the documents mentioned in the other application. The learned
counsel for the plaintiff referred to the decision of the Supreme Court in the
case of Salem Advocate Bar Association, Tamil Nadu v. Union of India:
(2005) 6 SCC 344. With reference to paragraph 13 thereof, the learned
counsel submitted that the Court may permit leading of such evidence even at
a later stage subject to any terms that may be imposed upon by the Court
which may be just and proper.
I have heard counsel for the parties. The Supreme Court decision in Salem Advocate Bar Association (supra) was in the context of additional
evidence. By virtue of the 1976 amendment, Rule 17 -A had been introduced
in Order 18. The said Rule 17 -A granted discretion to the Court to permit
production of evidence not previously known or which could not be produced
despite due diligence. Rule 17 -A of Order 18 was deleted by the Code of
Civil Procedure (Amendment) Act, 1999 which took effect on 1.7.2002.
While considering the effect of this deletion the Supreme Court observed: -
"13. In Salem Advocate Bar Assn. (I) v. Union of India, (2003) 1 SCC 49, it has been clarified that on deletion of Order 18 Rule 17 - A which provided for leading of additional evidence, the law existing before the introduction of the amendment i.e. 1 -7 -2002, would stand restored. The Rule was deleted by Amendment Act of 2002. Even before insertion of Order 18 Rule 17 -A, the court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order 18 Rule 17 -A did not create any new right but only clarified the position. Therefore, deletion of Order 18 Rule 17 -A does not disentitle production of evidence at a later stage. On a party satisfying the court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the court may permit leading of such evidence at a later stage on such terms as may appear to be just."
Thus, the Supreme Court held that the insertion of Rule 17 -A was only
clarificatory of the in -built power of the Court to permit parties to produce
evidence not known to them earlier or which could not be produced in spite
of due diligence. The learned counsel for the plaintiff sought to invoke this
in -built power of the court even in respect of Order 7 Rule 14 (3) which
relates to production of documents at a belated stage. There would be no
difficulty in holding that the in -built power referred to in the said Supreme
Court decision could also be invoked when the question of granting leave
arises in the context of Rule 14 (3) of Order 7. Consequently, before leave of
the Court can be granted for receiving documents in evidence at a belated
stage, the party seeking to produce the documents must satisfy the Court that
the said documents were earlier not within the party's knowledge or could not
be produced at the appropriate time in spite of due diligence. It has been
submitted by the learned counsel for the defendant that the documents pertain
to a settlement between the plaintiff and a foreign party (COGETEX). The
settlement was arrived at, as per the statement recorded in the cross -
examination of PW1, on 7.10.1996. However, there is not a whisper of this
statement even in the replication which was filed on 11.9.1997. In fact, the
affidavit by way of evidence was filed by the plaintiff in the year 2003 and
even in that affidavit, there is no reference to the documents which are now
sought to be introduced. In my view, these circumstances clearly show that
the conditions necessary before leave of the Court can be granted have not
been satisfied. It cannot be said that the plaintiff was not aware of the
documents earlier, or that the same could not be produced in spite of due
diligence on the part of the plaintiff. All the material now sought to be
introduced, was well within the knowledge of the plaintiff at least in the year
2003. As the plaintiff was not diligent enough at that point of time, this Court is left with no alternative but to reject its request.
These applications are dismissed without prejudice to the rights
and contentions of the parties which they may otherwise have in law.;
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