Delhi High Court
Faridabad Spinning And Woollen ... vs Janta Builders on 4 February, 1988
Author: L Seth
Bench: L Seth
JUDGMENT
Leila Seth, J.
1. This civil revision is directed against the order dated April 22, 1985, passed by Ms. Aruna Suresh, Commercial Sub-judge, Delhi, dismissing the application, under Order xviii, rule 17A, civil Procedure code, read with section 151, Civil Procedure Code, for summoning a clerk from the office of the Registrar of Companies, Calcutta, to prove the certificate of incorporation of the plaintiff-company, issued by the Registrar of companies under section 35 of the Companies Act, 1956, and/or producing a certified copy of the said certificate.
2. The facts in brief are that the plaintiff, the Faridabad Spinning and Woollen Mills Pvt. Ltd., filed a suit against the defendant on November 30, 1983, for recovery of Rs. 24,372.40. A photostat copy of the certificate of incorporation was filed along with the plaint. On April 22, 1985, when the plaintiff was leading its evidence, it sought to prove this certificate. However, the defendant objected to the admissibility of the document since only a photostat copy had been filed. Consequently the photostat copy was not marked as an exhibit but was marked "A" for identification.
3. It is averred that it was due to inadvertence that a certified copy had not been filed and only a photostat copy of the certificate of incorporation had been filed. The mistake was discovered when the opposite counsel raised the objection at the time the statement of the plaintiff's witness Mr. Prem Prakash Dalmia, director of the plaintiff-company, was being recorded. Thereafter, the plaintiff's counsel, instead of reserving his right to file a certified copy of the certificate of incorporation inadvertently closed the evidence on the morning of April 22, 1985. As such, the trial court fixed the matter for pronouncement of the judgment the same after noon. immediately, thereafter, the plaintiff's counsel Realizing his mistake, filed an application under Order xviii, rule 17A, requesting that the plaintiff be given permission to summon a clerk from the office of the registrar of companies and/or be allowed to produce a certified copy of the certificate of incorporation of the company. He further prayed that the pronouncement of judgment be deferred till the making of the decision on the application.
4. The learned judge, after examining the matter, and relying on a decision in T. Ramachandra Murthy v. K. Rama Murthy, AIR 1980 AP 265, dismissed the application as she felt that the application was nothing but an effort, on the part of the plaintiff, to fill up a lacuna and even otherwise the application was filed " after arguments were heard", and "there were no proceedings pending before the court'. Consequently, she proceeded to pronounce the judgment.
5. It is no doubt true that the plaintiff should have filed a certified copy of the certificate of incorporation and not a photostat copy. It is also true that the plaintiff should have kept its option open to file a certified copy, when it became aware of its mistake. But this is not a case where the defendant has been taken by surprise. Nor is it a case of filling up a lacuna. It is a case of rectifying an omission which has inadvertently occurred.
6. The plaintiff's counsel should in the first instance have ensured that a certified copy was filed. When he discovered the mistake, he should not have closed the evidence but should have asked for permission to do so. However, within a few hours of closing the evidence, he realised his mistake and immediately moved the application. Just because the application was made after arguments had been heard though before judgment, it is not a conclusive reason for not entertaining it Laws of procedure are meant to be hand-maidens of justice and not stumbling blocks.
7. In Suresh Kumar v. Baldev Raj, , hon'ble Mr. Justice J. D. Jain, while dealing with a matter under Order xviii, rule 17, civil Procedure code, opined that a court is entitled to exercise its discretion even after the evidence has been concluded. He further observed that the fact that the case had reached the stage of its final conclusion was not a factor which should weigh with the court to such an extent as to overshadow any other aspect of the matter. In fact, he specifically dissented from the contrary view taken by the Andhra Pradesh High Court in T. Ramachandra Murthy's case, AIR 1980 AP 265, on which Ms. Arua Suresh has relied.
8. Consequently, it would appear to me that, in the facts and circumstances of the present case, the plaintiff should be allowed to file a certified copy of the certificate of incorporation, and the respondent can be sufficiently compensated by being given costs which are a panacea for such problems.
9. Accordingly, I allow this civil revision petition, set aside the impugned order and direct the trial court to permit the plaintiff to produce a certified copy of the certificate of incorporation of a the company. However, this is subject to payment of costs of Rs. 500. The respondent will, naturally, be at liberty to adduce evidence in rebuttal if it so wishes.
10. Parties are directed to appear before the trial court on March 3, 1987, by or on which date the costs must be paid.
11. The record of the trial court should be sent back forthwith.
