IA No. GA-COM/5/2026
In CS-COM/12/2024
A.R., J.
4. While disposing of the said application filed by the defendant,
witness of the plaintiff was also concluded by the defendant.
preliminary issue at the time of final hearing of the suit.
Accordingly, IA GA-COM/4/2025 was disposed of. No appeal
was preferred. The said order dated December 1, 2025 has
5. Through the instant application, the defendant has made the
"a) It is therefore most humbly and respectively
prayed that this Hon'ble Court may please allow the
present application and take on record these three
documents as confronted during cross examination of
plaintiff witness and to allow the defendant to further
IA No. GA-COM/5/2026
In CS-COM/12/2024
A.R., J.
cross examine the plaintiff witness in the interest of
Justice.
b) And further pass such order and orders as your
Lordships may deem fit and proper."
SUBMISSIONS:
6. Mr. Rajesh Tandon, learned Advocate appearing for the
defendant refers to the provisions laid down under Rule 14 to
Order VII of CPC and submits that 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.
Nothing in this rule shall apply to document produced for
cross-examination of the plaintiffs witnesses, or handed over
to a witness merely to refresh his memory.
7. Learned Advocate then refers to Rule 1A to Order VIII of
CPC and submits that where the defendant bases his defence
upon a document or relies upon any document in his
possession or power, in support of his defence or claim for
set-off or counter-claim, he shall enter such document in a
list, and shall produce it in Court when the written statement
is presented by him and shall, at the same time, deliver the
document and a copy thereof, to be filed with the written
statement. However, nothing in this rule shall apply to
IA No. GA-COM/5/2026
In CS-COM/12/2024
A.R., J.
document produced for the cross-examination of the plaintiffs
witnesses, or handed over to a witness merely to refresh his
memory.
8. Referring to the statements made in paragraph 2 and the
sub-paragraphs therein from the plaint, learned Advocate for
the defendant submits that plaintiff has pleaded two work
orders dated May 5, 2017 and May 12, 2016. These
documents have also been mentioned in the list of documents
submitted by the plaintiff at page 29 to the plaint against
serial Nos. a and b. He also submits that the third document
being an alleged Memorandum of Settlement of claims along
with the account statement dated September 4, 2019
wherein the claim of the plaintiff allegedly settled by and
between the parties, had not been disclosed with the plaint.
9. Learned advocate submits that the documents disclosed by
the plaintiff are not whole of deed and/or whole of the
agreement between the parties. He submits that if whole of
the agreement has been disclosed by the plaintiff, the plaint
would not have been maintained before this Court due to lack
of territorial jurisdiction.
10. Learned Advocate for the defendant submits that in course of
cross-examination of the witness of the plaintiff, the said
documents were shown to the witness of the plaintiff but
since the defendant has not been allowed to produce those
IA No. GA-COM/5/2026
In CS-COM/12/2024
A.R., J.
documents as part of the record, the defendant would suffer
immense prejudice in this proceeding.
11. With regard to the third document being the said alleged
settlement of accounts dated September 4, 2019, it is
submitted on behalf of the defendant that neither the plaintiff
has pleaded this document or settlement of accounts between
the parties nor the said document has been disclosed with the
plaint. However, this document was also shown to the
plaintiff's witness during cross-examination. Therefore, if this
document is not allowed to be brought on record, defendant
would suffer immense hardship and prejudice as the plaint
claim has already been settled by and between the parties.
12. In support of its contention, learned advocate for the
defendant has relied upon a decision of the Hon'ble Supreme
Court In the matter of: Mohammed Abdul Wahid -Vs-
Nilofer & Anr reported at 2023 (16) SCALE 642.
13. The defendant accordingly prays for leave to disclose those
documents and to bring those in the suit record.
14. Mr. Suddhasatva Banerjee, learned advocate appearing for the
plaintiff has vehemently opposed this application. At the
threshold he submits that on the self same prayer this second
application made which has already been disposed of by this
Court by its order dated December 1, 2025.
IA No. GA-COM/5/2026
In CS-COM/12/2024
A.R., J.
15. Referring to the said order of the Co-ordinate Bench dated
September 9, 2025, Mr. Banerjee submits that opportunity
of cross-examination of the witness of the plaintiff by the
defendant had also been closed and there is no further scope
for cross-examination to confront the witness of the plaintiff
by bringing any further document on record.
16. Mr. Suddhasatva Banerjee, learned Counsel appearing for
the plaintiff, has placed reliance upon Sub-Rule 10 to Rule 1 of
amended Order XI of C.P.C and submits that save and except
for Sub-Rule 7(c)(iii), the defendant shall not be allowed to rely
on documents, which were not in the defendants power,
possession, control or custody and not disclosed along with the
written statement or counter-claim, save and except by leave of
Court and such leave shall be granted only upon the defendant
establishing reasonable cause for non-disclosure along with the
written statement or counter-claim. He then submits that since
the defendant has forfeited its rights to file written statement in
the instant suit, the question of filing written statement by the
defendant did not and could not arise. Therefore, this Court has
no opportunity to grant any leave to the defendant to disclose
any further documents in the facts and situation of this case.
17. While distinguishing the judgment In the matter of:
Mohammed Abdul Wahid (Supra), Mr. Banerjee submits that
this was not a Commercial Suit. The rigours enacted after
IA No. GA-COM/5/2026
In CS-COM/12/2024
A.R., J.
promulgation of the Commercial Courts Act could not apply in a
Non-Commercial Suit. Therefore, the ratio decided in the
judgment has no application in the facts of this case.
18. In the light of the above, Mr. Suddhasatva Banerjee,
learned Advocate appearing for the plaintiff prays for dismissal
of this application.
DECISION:
19. After hearing the rival contentions of the parties and upon
perusal of the materials on record, at the threshold, it appears
to this Court that previously, the defendant had applied
through IA NO. GA-COM/4/2025 which has already been
disposed of by this Court under order dated December 1, 2025
and the order has attained its finality. Inasmuch as, the
opportunity of cross-examination or further examination by the
defendant stood closed by the Co-ordinate Bench in its said
order dated September 9, 2025 which has also attained its
finality. Hence, there is no scope for re-opening of or further
cross-examination by the defendant to the witness of the
plaintiff in any manner.
20. On reading of the provisions and on harmonious
construction of the provisions laid down under Sub-Rule 10 to
Rule 1 of amended Order XI of C.P.C., this Court is of the firm
view that filing of written statement is a condition precedent.
IA No. GA-COM/5/2026
In CS-COM/12/2024
A.R., J.
Then only, the question of disclosure of any document by the
defendant could arise. Admittedly, in the instant case, the
defendant has forfeited its right to file written statement under
the law. Therefore, there is no scope for granting any leave to
the defendant to disclose any further document, at this stage,
when the suit has been already marked as undefended.
21. Inasmuch as there is no scope left open for the defendant
to come within the exception laid down under Sub-Rule 7(c)(iii)
of amended Order XI of C.P.C, as the opportunity of cross-
examination of the defendant has already been closed by the
Co-ordinate Bench under the said order dated September 9,
2025. Inasmuch as, if during the cross-examination any
document has been shown to the witness of the plaintiff to
confront the witness or to jog the memory of the plaintiff's
witness, the result will follow in the trial on the basis of the
answer already given by the witness of the plaintiff in cross-
examination.
22. Parties cannot travel beyond the pleadings filed by them.
Similarly, the evidence of the parties can also not travel beyond
the case made out by the parties in their pleadings. In the
instant case, the plaintiff must stand by the case and the
statements made in the plaint and not beyond that. Since it is
an undefended suit and the defendant has already cross-
examined the witness of the plaintiff, the result of the final trial
IA No. GA-COM/5/2026
In CS-COM/12/2024
A.R., J.
will be on the basis of the case made out in the plaint and the
evidence of the witness of the plaintiff, both in chief and cross,
which had already happened. Therefore, there is no
requirement of the defendant neither the defendant is eligible in
law to disclose any further document.
23. In the Matter of: Mohammed Abdul Wahid, the judgment
was rendered in a Non-Commercial matter. The rigour laid
down under the amended Order XI of C.P.C was not required
to be considered in that case, as the amended provision under
Order XI of C.P.C has been introduced in the light of the
promulgation of the Commercial Courts Act. The rigour under
amended Order XI(1)(10) of C.P.C would not apply in case of a
Non-Commercial Suit. Hence, the ratio laid down in the said
judgment would not apply in the facts and circumstances of
this case.
24. In view of the foregoing reasons and discussions, this Court
is of the considered view that this application must fail, as
devoid of any merit.
25. Accordingly, IA NO. GA-COM/5/2026 stands dismissed
without any order as to costs.
(ANIRUDDHA ROY, J.)
Sbghosh/R.Bhar/R.D.Barua
IA No. GA-COM/5/2026
In CS-COM/12/2024
A.R., J.
