Uday Pratap vs Digamber Singh
2013 Latest Caselaw 6234 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.2
 
Civil Misc. Writ Petition No. 53890 of  2013
 

 
Uday Pratap				   ........	   Petitioner	
 
Vs.
 
Digamber Singh			      	   ........           Respondent
 
 
 

 
******************
 

 
Hon'ble Tarun Agarwala,J.

The petitioner is the elected Pramukh of the Kshetra Panchayat. The sole respondent, being aggrieved by the election of the petitioner as Pramukh of the Kshetra Panchayat, filed an election petition. Amongst other documents, the petitioner had also filed various photographs along with the election petition which is alleged to depict the irregularities in the election. On 2nd July, 2013 the Election Tribunal framed issues and on 19th August, 2013 a list of witnesses was filed by the respondent. On 11th September, 2013, the respondent filed an application 51-C2 seeking permission to file a chip, which contained the negatives of the photographs already filed in the election petition. In this application the respondent contended that the chip had been misplaced and, therefore, could not be filed at the time of the presentation of the election petitioner but now it has been discovered and, therefore, the respondent was filing the same without any undue delay and seeking permission to bring it on record.

The petitioner filed objections stating that there has been an unreasonable delay in filing the chip and that no reasons has been indicated for condoning the delay. It was also submitted that the chip containing the negatives as well as the photographs already filed had nothing to do with the controversy involved in the petition and, therefore, the application of the respondent should be rejected.

The Tribunal, after considering the matter, allowed the application and accepted the explanation given by the respondent, being plausible. The Tribunal further held that the stage of accepting the chip as admissible evidence had not as yet been arrived at and that the admissibility of the evidence would be considered at the stage when evidence was being led. The Tribunal further found that the issues were framed on 2nd July, 2013 and the application was filed on 11th September, 2013 and, therefore, there was no undue delay on the part of the respondent in filing the said application. The elected Pramukh, being aggrieved by the order of the Tribunal, has filed the present writ petition.

Heard Sri V.C. Tripathi, the learned counsel for the petitioner and Sri Ashok Kumar Singh, the learned counsel for the respondent.

The submission of the learned counsel for the petitioner is that all the original documents was required to be filed at the time of the presentation of the plaint as contemplated under Order 13, Rule 1 of the Code of Civil Procedure, which provision is mandatory. The learned counsel contended that since the original chip, which included the negatives of the photographs were not filed, the Tribunal could not allow the application and permit the respondent to bring it on record.

Order 13, Rule 1 was amended by the Code of Civil Procedure Amendment Act No.46 of 1999 w.e.f. 1st July, 2002. Prior to the amendment, the provision of Order 13, Rule 1 is extracted hereunder:-

R.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 all the documentary evidence of every description in their possession or power, on which they intend 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.

R.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 r 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 documents.--

(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."

After the amendment, the provision has become as extracted hereunder:

"R.1. Original documents to be produced at or before the settlement of issues.- (1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with the plaint or written statement.

(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.

(3) Nothing in sub-rule (1) shall apply to documents--

(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.]

The present sub-Rule (1) of Order 13 provides that original documents shall be submitted in court on or before the settlement of issues where copies have been filed along with the plaint and the written statement. Sub-Rule (2) of the old Rule has been retained in the present Rule. The present sub-Rule (3) is the verbatim reproduction of sub-Rule (2) of the old Rule 2. Thus, Rule 1 and 2 of the old Rules have been clubbed together to make the new Rule 1 and the provisions of old Rule 2(1) have been left out. The effect of omission of Rule 2 would be that the power of the court to receive documents in evidence at any subsequent stage of the suit stands curtailed. The amendment in Rule 1 creates an obligation to produce the original documents before the settlement of the issues.

The contention that the provision of Order 13, Rule 1 is mandatory and that if the original document was not filed on or before the settlement of the issues, such original documents could not be accepted by the court by a later stage is patently misconceived.

Order 7, Rule 14 (3) was amended by the Code of Civil Procedure Amendment Act 22 of 2002, which is extracted hereunder-

"R.14. Production of document on which plaintiff sues or relies.--

(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."

Sub-Rule (3) of Rule 14 of Order 7 makes it necessary to obtain the leave of the court for allowing a document to be filed in a court, which was not filed along with the plaint or annexed in a list. Sub-Rule (3) of Rule 14 of Order 7 permits the plaintiff to file a document, which he intends to rely upon only with the leave of the court.

The reason is not far to see. The Law Commission was of the view that the plaintiff should not be compelled to file original documents at the time when the plaint was being filed as there was an apprehension that the original documents could be tampered while it was in the custody of the court and, consequently, the amendment was made permitting the plaintiff to file photostat copies of those documents but was under an obligation to produce the same at the trial or as and when called upon by the court.

From a perusal of Order 13, Rule 1 read with Order 7, Rule 14(3) of the Code of Civil Procedure it is clear that these provisions are procedural in nature and, consequently, it is not a mandatory provision. The word "shall" depicted in Order 13, Rule 1 is not mandatory and that the plaintiff can file the original document even after the settlement of the issues but after obtaining liberty from the court. The amendments made in Order 13, Rule 1 and Order 7, Rule 14(3) was done in order to remove the delay taken in the procedural aspects. Now, the plaintiff is required to file the original documents at the time of the settlement of issues and in case he fails to do so, the same would not be taken in evidence without the leave of the court. Before the amendment, the documents were only required to be filed after the framing of the issues. This has been done away by the present amendment in order to save time.

The Court finds from the 163rd report of the Law Commission that the Commission recommended that the production of the original record should be left to the discretion of the court and that the original documents could even be filed at the time of the trial. However, by the present amendment no discretion was given to the court but even though Order 13, Rule 1 gave a mandate that the original documents must be filed on or before the settlement of the issues, the said provision gets diluted by Order 7, Rule 14(3) of the Code of Civil Procedure wherein a document can be produced in the court subsequently with the leave of the court.

The Court finds that by such interpretation, the provisions of Order 13, Rule 1 and Order 7, R 14(3) can be harmoniously construed. The Court has wide power to permit a party to bring on record a document in the interest of justice and in relation to the suit as it thinks fit.

The Supreme Court in Vidyawati Gupta and others Vs. Bhakti Hari Nayak and others, AIR 2006 SC 1194 has held that the provisions of Order 7 is procedural in nature. The Supreme Court held that the intention of the legislature in bringing about the various amendments in the Code of Civil Procedure w.e.f. 1.7.2002 were aimed at eliminating the procedural delays in the disposal of the civil matters. The amendments made in Order 13, Rule 1 and Order 7 Rule 14(3) was also geared to achieve such object and, therefore, the provision being procedural, is only directory in nature.

For the reasons stated aforesaid, the Court does not find any error in the impugned order.

The writ petition is dismissed.

Date:3.10.2013

Bhaskar

(Tarun Agarwala, J.)