- (1.) THIS is an appeal by Balkishan who was plaintiff in the suit against the judgment and decree of the Additional Civil Judge, Jodhpur.
(2.) THE plaintiff filed a suit for recovery of a sum of Rs. 10,000/- against the defendants respondents. THE claim was based on certain amounts said to be due to the father of Balkishan, named Ranchhordas. THEre was nothing in the plaint to suggest that the plaintiff was the adopted son of Ranchhordas. THE plaint proceeded on the assumption that the plaintiff was the son of Ranchhordas and therefore entitled to recover the amounts due to Ranchhor Dass from his debtors. The suit was resisted by the defendants who filed the written statement in May, 1949. One of the points raised in the written statement was that the plaintiff had no right to sue as he was not the son of Ranchhordas. It was also said that the plaintiff's adoption by Ranchhordas was not admitted by the defendants. Though, therefore, the question of adoption was not raised by the plaintiff, it was definitely raised by the defendants in their written statement. The replication to this written statement was filed on the 16th of July, 1949, in which a curious position was taken on behalf of the plaintiff in paragraph 2. It was said in that paragraph that paragraph 11 of the defendants, written statement was incorrect, and that the plaintiff was the son of Ranchhordas. Nothing was said even at this stage about the plaintiff begin the adopted son of Ranchhordas. Issues were framed on 22nd of November, 1949, and the sixth issue was whether the plaintiff was the adopted son of Ranchhordas. But the adoption deed said to have been executed by Ranchhordas in favour of the plaintiff was not produced even up to the 17th of January, 1950, when one issue relating to misjoinder of causes of action was heard and decided. It was, for the first time, on the 13th February, 1950, that an application was made for admission of a number of documents including a copy of the deed of adoption. That application was headed under O. XIII, r. 1, and sec. 151 C. P. C. It was rejected by the then Civil Judge on the 12th April, 1950. Thereafter, another application was made to the successor Civil Judge on the 25th May, 1950. That application was allowed on payment of costs, and certain documents including a copy of the deed of adoption were allowed to be produced. Thereupon, there were two revisions to the High Court - one by the plaintiff against the order allowing costs, and the other by the defendants against the order admitting the documents on payment of costs. These revisions came up for hearing before a learned Single Judge of this Court, and the revision of the defendants was allowed, and the order of the Civil Judge, dated 29th of September, 1950, allowing the filing of a copy of the adoption deed and other documents was set aside. Thus the earlier order of 12th April, 1950 rejecting these documents including a copy of the adoption deed stood. When the case went back to the Civil Judge, he dismissed the suit holding that under the law then in force in the former state of Marwar no adoption could be proved without a registered deed, that no such deed had been produced, and that by then it was not disputed that the plaintiff was not the natural son of Ranchhordas. The plaintiff has come in appeal, and his contention is that the order of the Civil Judge, dated the 12th of April, 1950, is incorrect, and the plaintiff should have been allowed an opportunity of producing the adoption deed. Two points arise for determination in this appeal, namely (I) whether after the order of the learned Single Judge of this Court, dated the 16th of April, 1951, it is open to the appellant to challenge the order of the 12th of April, 1950? (2) If the order of 12th April, 1951, refusing admission of certain documents including a copy of the adoption been can be challenged, should this court interfere now in appeal with this order? So far as the first point is concerned, it can, in our opinion, be shortly disposed of. The revision in this court was against the order of the 29th September, 1950. Of course, it was open to this court to consider the order of the 12th April, 1950, also if it so desired. But the order of the learned Single Judge shows that he confined himself to the consideration of the order of the 29th September, 1950, though a few remarks appear in the judgment about the order of 12th April, 1950, also. The learned Judge said in his order that in the view which he was proposing to take it was not necessary to go into the question of the negligence of the plaintiff. So he did not consider the merits of the order of the 12th April, 1950, and merely confined himself to setting aside the order of the 29th September, 1950, with the result that the order of the 12th April, 1950, stood. We are of opinion that on these facts it is open to us on appeal to consider the merits of the order of the 12th April, 1950, as those merits were not considered by the learned Single Judge who disposed of the revisions. Then we come to the merits of the order of the 15th of April, 1950. Under O. 7, r. 14 it is the duty of the plaintiff to produce in court the document on the basis of which he sues, provided it is in his possession or power. Further, it is his duty where be relies on any other documents (whether in his possession or power or not) as evidence in support of his claim to produce a list of such documents along with the plaint. Assuming that the adoption deed was not the document on which he was suing, it was still a document on which the plaintiff would have to rely, for it is now not in dispute that he was not the natural son of Ranchhordas, and claimed the right to collect debts due to Ranchhordas because of adoption. Therefore, the plaintiff should have mentioned the deed of adoption in a list which he should have produced along with the plaint. This he did not do. The failure of the plaintiff to produce a list meant that O. 7, r. 14 was not complied with, and he could not produce any document on the hearing of the suit without the leave of the court. Under O. 13, r. 1, it is the duty of the parties to produce all documents on which they rely, and which have not already been filed in court, on the first date of hearing. The plaintiff, however, did produce the deed of adoption on the date of issues, namely the 22nd of November, 1949, on the first date of hearing which was the 17th January, 1950. Thereafter, the only remedy left to the plaintiff, if he wanted to produce any further documents, (in view of O. 7, r. 18 (1), and O. XIII, r. 1), was to apply under O. XIII, r. 2, and if the court was satisfied that there was good cause for earlier non-production, it might have admitted the documents after recording reasons therefor. What the plaintiff however did was to apply on the 13th of February, 1950, for leave to produce certain documents including a copy of deed of adoption. No reason was given why the documents were not produced at an earlier stage. The production of the documents was opposed by the defendants, and the Civil Judge refused to allow their production on the 12th of April, 1950. It appears from the order of the Civil Judge that originally no provision of law under which the application was made on the 13th February, 1950, was entered on the application. As we now find that O. XIII. r. 1, and sec. 151 C. P. C. are entered in that application, it appears that this was done when arguments in court were heard. At the time, learned counsel for the plaintiff seems to have justified his application under O. XIII, r. 1, and sec. 151. The court was, however, right in pointing out that no such application under O. XIII, r. 1, could be made at that stage. It also pointed out that these was a specific provision under O. XIII, r. 2 for making such an application, and therefore sec. 151 would not apply. These remarks of the court in its order of the 12th of April, 1950, are correct, and cannot be objected to. It also pointed out that the application had not been filed under O. XIII, r. 2, and no good cause had been shown for the delay in the production of the documents. It, therefore, dismissed the application for production of these documents. It is urged that the Civil Judge was wrong in rejecting this application. There is nothing, however, to show that on that day the plaintiff asked for time to file an affidavit to show cause for the delay in the production of the documents. As a matter of fact, we find that even in the later application of the 25th of May, 1950, the only reason given for not producing the adoption deed in time was that the plaintiff's adoption was an established fact, and. that it became necessary to produce the deed only because the defendants denied such an established fact. We are of opinion that this is no reason at all. The defendants, in their written statement of May, 1949, had already put the plaintiff to proof of the adoption, even though the plaintiff in hi plaint had completely hidden the fact that he was an adopted son and ha 1 come to court making it appear as if be was the natural son of Ranchhordas. After that denial of the defendants in May, 1949, the plaintiff should have known long before that his adoption was not accepted as an established fact by the defendants, and should have produced the deed of adoption soon after May, 1949. In any case, if the deed was not produced before the first date of hearing, the plaintiff had to show good cause for its non-production. Eve up to today practically no cause has been shown for non-production, and to say that the deed was not produced because the plaintiff's adoption was a established fact is an absurdity in view of the denial of the defendants. So even now there is no good cause for the non-production of the deed of adoption. The order of the Civil Judge, therefore, appears to us to be correct. It may be that if we were sitting as a court of first instance, we might have handled the matter differently, though it is curious that the original was never produced in the trial court at any stage and was in the possession of learned counsel for the appellant, and was shown to us when we tried to find out whether the original deed of adoption was on the record. However, the question now is whether the trial court having exercised its discretion, and having refused the document, and that refused not being wrong, should the appellate court interfere with such exercise of discretion. Out attention has been drawn in this connection to Kumar Gopika Raman Ray vs. Atal Singh (1) (A. I. R. 1929 P. C. , 99.), where their Lordships of the Privy Council observed that even whether the rule of exclusion applied and the documents could not be filed without the leave of the court, that leave should not ordinarily be refused where the documents are official records of undoubted authenticity and may assist the court to decide rightly the issues before it. Relying on these observations it is urged that the deed of adoption was a registered document and should have been accepted as there could hardly be any doubt its authenticity and it would certainly have assisted the court in the disposal of the issues before it. This case was considered by their Lordships of the Privy Council in Kanda vs. Waghu (2) (A. I. R. 1950 P. C. ,), and it was remarked that it was erroneous to read these observations as implying that there was no discretion left in a trial court when it was a matter of admitting public records at a late stage. It was added that the court had a discretion and while generally speaking it would be a wise exercise of the discretion to admit such evidence, the question must be decided in each case in the light of the particular circumstances. Their Lordships refused to interfere in that case when the courts in India held that the trial court had exercised a wise discretion in refusing to admit additional evidence. The principles on which appellate court should interfere with the exercise of discretion in such cases by the trial court have been laid down in a number of cases to which we may briefly refer. In Madhu Sudan Sinha vs. Kali Charan Sinha (3) (A. L. R. 1919 Cal, 800.), it has been held that the trial court has discretion under O. XIII, r. 2. C. P. C. to refuse to accept documents produced at a late stage, and an appellate court will not interfere with the exercise of such discretion unless it is satisfied that the discretion has been improperly or capriciously exercised. In Nrisinha Charan Nandi Choudhari vs. Batasi Dashi (4) (A. I. R. 1926 Cal. 106.), the Calcutta High Court has held that the High Court will not in second appeal interfere with an order of the court rejecting admission of documents when no reason has been shown for their non-production at the time they were rejected.
(3.) IN Idu vs. Kanwar (1) (AIR 1933 Lah. 892.) the Lahore High Court has held that the acceptance or rejection of a document produced at a late stage is a matter entirely within the discretion of the court. Hence where the trial court rejected a document, which was produced at a late stage, the High Court should not interfere with the exercise of the discretion unless it is satisfied that the discretion has been exercised capriciously, in an arbitrary manner and contrary to well-recognised judicial principles. In Kanda vs. Waghu (2) (AIR 1950 P. C. 68.) their Lordships of the Privy Council pointed out that it would be a wise discretion to admit in evidence copies of official records of undoubted authenticity, but added that the question must be decided in the light of the circumstances of each case. What then are circumstances such that we should interfere with the discretion of the trial court when the order if passed cannot be said to be wrong? The circumstances are that the plaintiff was negligent throughout, and did not produce the document when he should have produced it. Further, no reason was given for non-production at an earlier stage up to the time when the order of the 12th of April, 1950 was passed. Even in the application of 25th May, 1950, no reason is given for non-production of the document except that the plaintiff believed that his adoption was an established fact, the absurdity of which is clear from the defendants' denial of the adoption as far back as May, 1949. Then, though the plaintiff calls the copy of the deed of adoption, which he produced, as copy of a judicial record, it is really not so. The deed of adoption is a private document. Though it is registered, its authenticity is not so undoubted. It is said to have been executed in 1948, only a few months before the suit was filed, and above all the original was never produced at any stage in the trial court. It is true that by the time the application was made on the 13th February, 1950 evidence had not begun. But taking all these circumstances into account, it can hardly be said that the trial court did not exercise its discretion wisely in refusing to accept the copy of the adoption deed which was produced, when no reason is forthcoming even up to to-day for non-production earlier. In this view of the matter, we are not prepared to interfere with the discretion exercised by the trial court in rejecting certain documents including the copy of the deed of adoption. In the absence of such deed the suit must fail in view of the law prevalent in Marwar at the time the adoption was made. We therefore, dismiss the appeal with costs to the respondents. .;