Sehgal Puri Pvt. Ltd. vs The National Newsprint And Paper ...
2001 Latest Caselaw 716 Del

ORDER

Devinder Gupta J. (Oral)

1. Order passed on 18.8.2000 dismissing the application (IA.7252/2000) filed under Order 13 Rule 2 C.P.C. and declining the plaintiff/appellant permission to produce original documents is under challenge in this appeal.

2. We have heard learned counsel for the parties and also gone through the suit record.

3. The Plaintiff/appellant filed suit No. 875/78 against the defendant for recovery of Rs. 1,60,000/-. The suit is based not he allegation that the defendant during July/August, 1975 dispatched News Print Paper to various customers, but on account of slump in the market the defendant refused to take delivery as a result of which large quantity of goods were lying at various stations and on that account huge demurrage was accruing thereupon, the defendant prevailed upon the plaintiff to deal with the Railway Authorities and to take delivery of the goods. On account of heavy rains the paper reels lying at various stations lost its utility to certain extent and on the request of the defendant those were taken out form the Railway Station. Huge amount was spent by the plaintiff thereupon. In addition to these damages, the plaintiff also claimed more amount alleging that the plaintiff suffered loss on the supplies of certain paper cutting and supplying to various Government Departments. Along with the plaint, the plaintiff instead of producing original documents filed photostat copies of the same saying the originals will be produced later on. After the defendant had filed written statement the case was posted for admission/denial of document. Admission and denial also took place in the absence of original documents. Opportunity was thereafter allowed to the plaintiff to produce original documents subject to costs of rs. 1,000/-. Documents were not produced. Ultimately when the suit was posted for trial and plaintiff's first witness was in witness box, the plaintiff applied under Order 13 rule 2 C.P.C. seeking permission of the Court to produce the originals, the photostat copies of which were already filed along with the plaint. This prayer was vehemently opposed by the defendant and by the impugned order learned Single Judge dismissed the application primarily on the ground of delay and negligence saying that opportunity was allowed to the plaintiff by order 23.7.1996 for producing original, which was not availed of. Four years had passed. Original documents were not produced, therefore, permission cannot be granted when the suit was already fixed for trial.

4. Learned counsel for the defendant urged that it was a gross and negligent act on the part of the plaintiff in not producing the originals. Discretion has rightly been exercised by learned Single Judge and no ground had been made out to interfere with the discretion permitting the plaintiff to produce original documents.

5. Rule 1 of Order 13 of the Code of Civil Procedure enjoins upon the parties to produce all documentary evidence of every description in their possession or power at the earliest possible opportunity. The requirement as to production of document at the earliest is intended to secure speedy conduct of the suit. The parties cannot be permitted to produce documentary evidence as and when they like merely because they are willing to pay costs to the other side. Rule 2 of order 13 is an enabling provision, which enables the Court to exercise discretion to received documents at a latter stage. Sub-rule (1) of Rule 2 of Order 13 reads:-

"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 rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing."

6. The aforementioned sub rule cloths the Court with discretion to allow production of documents, if good cause is shown to its satisfaction for non-production of the documents at the earliest opportunity. Discretion has to be exercised judicially. Sub-rule (1) of Rule 2 of Order 13 of the Code deserves to be liberally construed so as to advance the cause of justice and it is well settled proposition in law that no documents whether public or private, which are above suspicion should be excluded if they are necessary for the proper decision of the case. In Madan Gopal Knaodia v. Mamraj Maniram and others order allowing late production of original documents was upheld holding since it was found that the defendants were not taken by surprise or no prejudice was occasioned to them by late production of the documents. The Court held:-

"Order 13 Rule 2 of the Code of Civil Procedure does not provide for any particular ritualistic formal in which the order of the Court has to be passed. The object of Order 13 Rule 2 is merely to prevent belated production of documents so that it may not work injustice to the defendants."

7. It is not denied that the documents sought to be produced are relevant documents and that photostat copies of the same were produced on record along with the plaint and copies thereof were duly supplied to the defendant before the defendant filed written statement. Photo copies were also put for admission and denial. Therefore, it was not a case where the plaintiff had come forward to produce original documents for the first time. Photostats of the documents were already on record. Therefore, there is no question of likelihood of those documents having been tempered with after the photostat copies were placed on record. Moreover, the suit is still at the stage of trial. Plaintiff's first witness is under cross examination. Plaintiff has yet to produce its remaining evidence. Defendant has yet to produce its evidence and thus will have full opportunity to disprove the correctness or genuineness of the documents by leading such evidence as may be found necessary after plaintiff's evidence is over. Thus is our view, learned Single Judge failed to exercise discretion properly. The grounds that the plaintiff had been negligent or there was considerable delay alone would not be sufficient not to exercise discretion in plaintiff's favor. For the inconvenience if any to the defendant, grant of cost should have sufficed.

8. We are of the view that because of the plaintiff's conduct in not producing the originals in time and despite opportunity discretion, if any, for receiving the documents on record ought to be exercised subject only on the plaintiff compensating the defendant for the inconvenience caused to the defendant.

9. Accordingly, the appeal is allowed. Impugned order is set aside. We direct the documents to be taken on record, subject to the plaintiff paying costs of s. 10,000/- in addition to the costs already imposed, which will be paid before the next date fixed before learned Single Judge.