Bhimrao Baswantrao Patil Through ... vs Sicom Limited Through Its ...
2016 Latest Caselaw 2767 Bom

                                        1                   WP No.2984/2016

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                      
                       BENCH AT AURANGABAD

                          WRIT PETITION NO.2984 OF 2016




                                              
      Bhimrao s/o Baswantrao Patil
      Age: 54 Years, Occupation: Business,




                                             
      R/o.Shirpur, Madnur Mandal,
      District Nizamabad,
      Telangana State,
      At present 119, Shastrinagar,
      Garkheda, Aurangabad,




                                     
      through its power of attorney holder
      Shri Sidhling s/o Ramling Kore,
                             
      Age: 45 Yars, Occupation: Business,
      R/o Laxmi Chowk, Mukundwadi,
      Aurangabad.                          ..PETITIONER
                            
                                        (Orig.PLAINTIFF) 
           VERSUS

      1.  SICOM Limited,
      

          Through its Regional Officer,
          Anand Bhawan, Plot No.166,
   



          N-5, South Cidco, Aurangabad.

      2.  Anoop s/o Prakashchandra Garg,
          Age: Major, Occupation: Business,





          R/o. Rajnagar, Station Road,
          Aurangabad.

      3.  Satyanarayan s/o Madanlal Chandak,
          Age: Major, Occupation: Business,
          R/o. Shardhanand, Ajabnagar,





          Aurangabad.

      4.  Vinod s/o Premchand Surana.
          Age: Major, Occupation: Business,
          R/o. 15, New Samarthnagar,
          Aurangabad.

      5.  Santosh s/o Shantilal Muthiyan,
          Age: Major, Occupation: Business,




    ::: Uploaded on - 13/06/2016              ::: Downloaded on - 30/07/2016 05:16:54 :::
                                          2                   WP No.2984/2016

          R/o. Shanti, Khadkeshwar,
          Aurangabad.




                                                                       
      6.  Jugalkishor s/o Chhaganlal Tapadia,




                                               
          Age: Major, Occupation: Business,
          R/o. Pink Palace, Samarthnagar,
          Aurangabad.




                                              
      7.  Harinarayan s/o Bhikchand Chinchani,
          Age: Major, Occupation: Business,
          R/o.Raja Bazar, Aurangabad.
                                          ..RESPONDENTS
                                      (Orig.DEFENDANTS)




                                      
                                       -----
                             
      Mr. Ameet R. Vaidya, Advocate for Petitioner;
      Mr. S.D.Tawshikar, Advocate for Respondent No.1.
                                       -----
                            
                                   CORAM :  P.R.BORA, J.

       
      DATE OF RESERVING JUDGMENT  : 8
                                      th
                                          JUNE 2016
                                                   
      


       
      DATE OF PRONOUNCING JUDGMENT:13
                                      th
                                          JUNE,2016
                                                   
   



                                                         
      JUDGMENT:

1) Heard. Rule. Rule made returnable

forthwith with consent of the learned Counsel

appearing for the respective parties.

2) By filing the present petition, the

petitioner has challenged order dated 7.11.2015

passed by Civil Judge, Senior Division,

Aurangabad in Regular Civil Suit No.718/2015

below Exhibit-34. Defendant No.1 in the

aforesaid suit, who is Respondent no.1 in the

present petition, had filed the aforesaid

application at Exh.34 seeking directions against

the plaintiff in the said civil suit, i.e.

present petitioner to furnish the copies of the

documents as enlisted and described in Para 5 of

the said application. The present petitioner is

hereinafter referred to as the plaintiff and

Respondent no.1 is referred to as deft.no.1.

. It was the contention of deft.no.1 in

the application at Exh.34 that under Order VII

rule 14 of Code of Civil Procedure, 1908 (for

short, C.P.C.) it was incumbent on part of the

plaintiff to furnish on record the documents

referred to in the plaint and relied upon by him

in support of his claim. It was the further

contention of deft.no.1 that for filing the

written statement in the matter, it was necessary

for deft.no.1 to look into the documents relied

upon by the plaintiff in support of his claim.

The plaintiff filed his say to the said

application, stating that the application so

filed was false and frivolous and was liable to

be dismissed in limine. It was the further

contention of the plaintiff that the said

application was not supported by any law and the

Order VII Rule 14 of C.P.C. was inapplicable.

The plaintiff, therefore, had prayed for

rejection of the said application with costs.

3) The learned Civil Judge, after having

heard the learned counsel appearing for the

parties, passed an order thereby directing the

plaintiff to produce the documents as asked for

by the defendant No.1. In the said order the

learned Civil Judge has also clarified that non-

compliance of the Order would amount to non-

registration of the plaintiff in view of the

provision under Order IV Rule 1(2) of C.P.C.

Aggrieved thereby, the plaintiff has preferred

the present petition.

4) Shri Ameet Vaidya, learned Counsel

appearing for the petitioner, assailed the

impugned order as an illegal exercise of

jurisdiction by the learned trial Judge. The

learned Counsel further submitted that the

learned Civil Judge has failed in not considering

that the documents required to be produced by

deft.no.1 by filing the application at Exh.34,

are neither the documents that are relied upon by

the plaintiff nor the claim of the plaintiff is

based on the said documents. The learned counsel

further submitted that the mode, manner, volume

and nature of evidence oral as well as

documentary, is the domain of the plaintiff or

the party litigant. The learned Counsel further

submitted that it is alien to the rule of

procedure and power of the Court to direct or

dictate the mode or manner of evidence. The

learned Counsel, therefore, prayed for setting

aside the impugned order.

5) Shri Tawshikar, learned Counsel

appearing for Respondent No.1, opposed the

submissions advanced on behalf of the petitioner.

The learned Counsel submitted that in the

application at Exh.34 submitted by deft.no.1

before the trial court, it has been specifically

averred by him that the plaintiff has referred to

and relied upon the documents enlisted in Para 5

of the said application. The learned counsel

further submitted that it is also stated in the

application that it was not possible for

deft.no.1 to file its written statement without

knowing the contents of the documents referred to

and relied upon by the plaintiff in support of

his claim.

. The learned counsel further submitted

that in the say filed by the plaintiff to the

said application, he has nowhere contended that

the documents, production of which was sought for

by deft.No.1, are not relied upon by the

plaintiff or that the claim of the plaintiff is

not based on the said documents or that the said

documents were not in his possession, but were in

possession of somebody else. In the

circumstances, according to learned Counsel, the

learned Civil Judge has rightly directed the

plaintiff to produce the said documents on record

as asked by deft.No.1 in his aforesaid

application. The learned Counsel further

submitted that after passing of the impugned

order the plaintiff has sought time at least on

five occasions to comply the order passed below

Exh.34. In the circumstances, according to

learned Counsel, the plaintiff is estopped from

challenging the impugned order. The learned

Counsel, therefore, prayed for dismissal of the

petition.

6) After having heard the learned Counsel

appearing for the respective parties and on

perusal of the impugned order and the documents

placed on record, apparently it does not appear

to me that any interference is required in the

impugned order.

. Order VII Rule 14 of C.P.C. reads thus,

"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, wherever

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."

The aforesaid Rule directs the plaintiff to file

the documents, which he intends to rely and which

are in his power and possession along with the

plaint. All such documents should also be

entered in the list of documents and where a

document entered in the list of documents is not

produced along with the plaint, it shall not be

received in evidence without the leave of the

Court.

7) The object of Rule 14 is to apprise the

defendant regarding the foundation of plaintiff's

claim and also to exclude production of document

of a doubtful nature at a belated state.

8) As mentioned earlier, defendant no.1 in

the application filed by him at Exh.34, has

categorically stated that to enable deft.no.1 for

filing his written statement, the production of

the documents referred to and relied upon by the

plaintiff in support of his claim was must.

Defendant No.1 was thus fully justified in making

such application and seeking production of the

concerned documents. Moreover, it was further

specifically averred by defendant No.1 in the

said application that the documents, production

of which was sought by him, are referred to and

relied upon by the plaintiff in support of his

claim. In the say filed by the plaintiff to the

said application, the plaintiff has not denied or

disputed the averments made or the contentions

raised by deft.no.1 in the said application. A

vague reply is given by the plaintiff stating

that the application was false and frivolous and

that it was not supported by any law and that the

provisions of Order VII Rule 14 were inapplicable

to the said application. Though the plaintiff

has alleged the impugned order to be cryptic, in

fact the say filed by the plaintiff to the

application at Exh.34 appears cryptic. The

plaintiff has not explained as to how the said

application can be said to be false and

frivolous. It has also not been explained as to

how the provisions of order VII Rule 14 were not

applicable. Even in the present petition,

nothing has been stated in regard to the

aforesaid objection as about falsity of the

application and non-applicability of order VII

Rule 14.

9) It is the contention of the

petitioner/plaintiff that the court below ought

to have considered that the documents referred to

in the application at Exh.34 are neither the

documents that are relied upon by the plaintiff

nor the plaintiff claimed to be in possession or

power of the said documents nor the plaintiff has

sued upon the said documents. The contention so

raised by the petitioner is apparently

unacceptable. As mentioned earlier, it was the

specific contention of deft.no.1 in the

application at Exh.34 that the plaintiff has

referred to and relied upon the documents

enlisted and described in Para 5 of the said

application. If it is the contention of the

plaintiff that the averment so made in the

application was incorrect and false, the

plaintiff must have submitted a specific reply to

the said averments and ought to have specifically

denied the said fact. It was incumbent on the

part of the plaintiff to disclose whether he was

relying on the said documents and whether the

said documents were in his possession. In

absence of any such explanation from the

plaintiff, there was no reason for the learned

Civil Court to disbelieve the averments made by

deft.no.1 in the application at Exh.34. It was

the duty of the plaintiff to explain whether he

was relying on the documents concerned and not of

the Court to see whether the plaintiff is relying

on the documents, in question, and whether the

said documents were in his possession or not.

10) Further, the plaintiff has failed in

substantiating his contentions that the

application submitted by deft.no.1 at Exh.34 was

false and frivolous and that the provisions of

Order VII Rule 14 were not applicable in the

present case. On the contrary, as mentioned

herein above, Rule 14 directs the plaintiff to

file the documents which he intends to rely on

and which are in his possession and power along

with the plaint. The provision as to the

production of documents is based on sound reasons

and non compliance thereof cannot be treated

lightly particularly when the production is

insisted by the defendant.

11) Secondly, as is revealed from the

material on record the plaintiff did seek time

from the civil court to comply the order passed

by the court below at Exh. 34 at lease on five

occasions. Nothing is brought to my notice

showing that at any point of time, the

petitioner/plaintiff has disclosed to the civil

court that he intends to challenge the said order

or that the documents directed to be produced on

record were not in his possession. As such, the

petitioner is in fact, estopped from raising any

objection to the impugned order. Even otherwise,

as discussed herein above, there is no merit in

the objection raised by the petitioner. I do not

find any error in the impugned order. No

interference is, therefore called for in the said

order. The writ petition is devoid of any

substance and deserves to be dismissed. It is

accordingly dismissed with costs. Rule

discharged.

sd/-

(P.R.BORA,J.)

bdv/

fldr8.6.2016