K.L.J. Resourses Ltd. vs Jaguar Overseas Ltd.
2014 Latest Caselaw 7004 Del

$~ 5
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 2388/2007

       K.L.J. RESOURSES LTD.                     ..... Plaintiff
                   Through:    Mr.G.L. Rawal, Sr. Advocate with
                   Mr.Kuljeet Rawat, Advocate

                         versus

       JAGUAR OVERSEAS LTD.                 ..... Defendant
                 Through:   Mr.Amit S. Chadha, Sr. Advocate
                 With Mr.Abhishek Sharma and Mr.Karan, Advs

       CORAM:
             HON'BLE MR. JUSTICE G.S.SISTANI
                   ORDER

%                  19.12.2014

O.A. 245/2014

1. Plaintiff has filed the present appeal in Chamber assailing the order of

the Joint Registrar dated 17.10.2014, by which an application filed by

the plaintiff under Order 7 Rule 14 Code of Civil Procedure

(IA.No.13851/2014) for placing additional document i.e. copy of lease

deed dated 01.12.2006, on record, was dismissed.

2. Mr.Rawal, learned senior counsel for the plaintiff / applicant, at the

outset points out that the evidence of the plaintiff had not concluded

on the date when the application (IA.No.13851/2014) was filed.

Counsel further submits that the document sought to be relied upon

by the applicant is necessary for determination of the issues between

the parties and further the said document was not in possession and

power of the plaintiff and once the document was procured by the

plaintiff, no time was wasted and application (IA.No.13851/2014) was

filed.

3. The appeal is opposed by Mr.Chadha, learned senior counsel for the

defendant on the ground that the application is highly belated. It is

submitted that the issues were framed in this matter as far back as on

16.2.2009 and an additional issue was framed on 25.1.2010 and since

then the matter is being adjourned for recording of evidence. Counsel

further submits that when the application was filed, the plaintiff had

concluded the evidence.

4. Mr.Rawal, learned senior counsel for the plaintiff has clarified that he

has not concluded his evidence and no statement in this regard was

made. Mr.Rawal has relied upon Vijay Kumar Goel Vs. Delhi

Development Authority & Anr. reported at 163 (2009) DLT 372,

where the Court had permitted the documents to be taken on record

at a belated stage as the documents were relevant for the proper and

final adjudication of the case on merits.

5. Mr.Chadha, learned senior counsel for the defendant submits that the

document sought to be filed pertains to the year 2006 and the said

document is a copy of the registered lease deed executed between

the son of one of the directors of the plaintiff company and the ICICI

Lombard General Insurance Co. Ltd. and thus to say that this

document was not in the power and possession of the plaintiff, is

factually incorrect.

6. Mr.Chadha, learned senior counsel for the defendant also submits

that KLJ Resources Limited is a company of Sh.Kanhaiya Lal Jain and

the applicant/ plaintiff cannot hide behind the technicalities when in

fact the lease sought to be relied upon was executed by the son of

Sh.Kanhaiya Lal Jain in favour of the ICICI Lombard General Insurance

Co. Ltd.

7. While opposing this application, counsel for the defendant has placed

reliance on two decisions of this Court [Asia Pacific Breweries Vs.

Superior Industries 2009 (109) DRJ 497 and Gold Rock World

Trade Ltd. Vs. Veejay Lakshmi Engineering Works Ltd. reported

at 143 (2007) DLT 113].

8. I have heard counsel for the parties and given my thoughtful

consideration to the matter.

9. The reasons for delay in filing the document in question has been

given in paragraph 3 of the IA.No.13851/2014, which is that the

person concerned, who was looking after the litigation had left the

plaintiff company and the lease deed could not be traced and filed in

time and a certified copy was applied in June, 2014.

10. In the case of Gold Rock World Trade Ltd. (Supra) this court has

held as under:

4. I have heard counsel for the parties. The Supreme Court decision in Salem Advocate Bar Association (supra) was in the context of additional evidence. By virtue of the 1976 amendment, Rule 17-A had been introduced in Order 18. The said Rule 17-A granted discretion to the Court to permit production of evidence not previously known or which could not be produced despite due diligence. Rule 17-A of Order 18 was deleted by the Code of Civil Procedure (Amendment) Act, 1999 which took effect on 1.7.2002. While considering the effect of this deletion the Supreme Court observed:-

"13. In Salem Advocate Bar Assn. (I) v. Union of India,

(2003) 1 SCC 49, it has been clarified that on deletion of Order 18 Rule 17- A which provided for leading of additional evidence, the law existing before the introduction of the amendment i.e. 1-7-2002, would stand restored. The Rule was deleted by Amendment Act of 2002. Even before insertion of Order 18 Rule 17-A, the court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order 18 Rule 17- A did not create any new right but only clarified the position. Therefore, deletion of Order 18 Rule 17-A does not disentitle production of evidence at a later stage. On a party satisfying the court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the court may permit leading of such evidence at a later stage on such terms as may appear to be just."

Thus, the Supreme Court held that the insertion of Rule 17-A was only clarificatory of the in-built power of the Court to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. The learned counsel for the plaintiff sought to invoke this in-built power of the court even in respect of Order 7 Rule 14 (3) which relates to production of documents at a belated stage. There would be no difficulty in holding that the in-built power referred to in the said Supreme Court decision could also be invoked when the question of granting leave arises in the context of Rule 14 (3) of Order 7. Consequently, before leave of the Court can be granted for receiving documents in evidence at a belated stage, the party seeking to produce the documents must satisfy the Court that the said documents were earlier not within the party's knowledge or could not be produced at the appropriate time in spite of due diligence. It has been submitted by the learned counsel for the defendant that the documents pertain to a settlement between the plaintiff and a foreign party (COGETEX). The settlement was arrived at, as per the statement recorded in the cross- examination of PW1, on 7.10.1996. However, there is not a whisper of this statement even in the replication which was filed on 11.9.1997. In fact, the affidavit by way of evidence was filed by the plaintiff in the year 2003 and even in that affidavit, there is no reference to the documents which are now sought to be introduced. In my view, these circumstances clearly show that the conditions necessary before leave of the Court can be granted have not been satisfied. It cannot be said that the plaintiff was not aware of the documents earlier, or that the same could not be produced in spite of due diligence

on the part of the plaintiff. All the material now sought to be introduced, was well within the knowledge of the plaintiff at least in the year 2003. As the plaintiff was not diligent enough at that point of time, this Court is left with no alternative but to reject its request."

11. In the case of Asia Pacific Breweries (Supra) it was held:

"8. The sole purpose of asking the plaintiff to file all documents in his power and possession and to file list of those documents which are not in his power and possession is that the defendant while filing written statement should not only respond to the pleadings in the plaint but should suitably respond to those documents which are relied upon by the plaintiff and should file its own documents, if any, in order to defend the claim of the plaintiff. The documents are to be filed by the plaintiff and the defendant at the preliminary stage i.e at the time of pleadings and thereafter parties have to admit or deny the documents and then issues are framed. The issues are not only framed out of the pleadings but also out of the documents relied upon by the parties. The sole purpose of this provision stands defeated if the majority of documents are withheld by either of the parties and the documents are sought to be sneaked into at the time of evidence. If new documents are allowed to be filed by one party, again a de novo trial has to be started since in response to the documents filed by one party, the other party is to be given a chance to file documents in rebuttal and this leads to a fresh trial. The amendments in Civil Procedure Code in 1976, 1999 and 2002 were carried out by the legislature with the sole purpose that the trial should finish early and the trial should not be prolonged. Parties were put on notice by the legislature that they should file all documents in their power and possession at the time of filing of the suit. Only those documents can be allowed by the Court to be filed later on which were either not in the knowledge of the plaintiff or the plaintiff despite due diligence could not have procured them but mentioned them in the list of reliance giving information as to in whose power and possession the documents were to seek help of the Court to procure the documents. Where the plaintiff has not filed a list of documents relied on and the documents are those such that same were within the knowledge and power and possession of the plaintiff, the Court cannot allow those documents to be filed at the stage of evidence. All the documents which are mentioned by the plaintiff in the list are those which were within the power and possession of the plaintiff. Plaintiff before coming to the Court and filing the suit was under an obligation to get certified

copies or notarized copies or photographs and photocopies of those materials which the plaintiff now wants to place on record in support of his case. The plaintiff cannot be allowed to keep on filing fresh material and documents with the progress of the case or along with affidavits of the witnesses. No just and reasonable grounds are made out by the plaintiff as to why the documents were not filed by the plaintiff with the plaint."

12. In the case at hand, the plaintiff wishes to place on record a copy of

the lease deed. The application filed by the plaintiff

(IA.No.13851/2014) is completely devoid of any particulars as to what

is the relationship between the lessor and the plaintiff company. This

question becomes relevant for the reason that in case the lessor with

respect to property of which, lease is sought to be relied upon is an

outsider, then obviously the lease deed could not be available in the

office of the plaintiff. Reading of paragraph 3 of the application

(IA.No.13851/2014) would certainly give an impression that the lessor

of the said lease had some connection with the plaintiff only then a

copy of the lease would be available in the office of the plaintiff. The

lease also pertains to the year 2006 i.e. even prior to filing of the suit.

In case the plaintiff was desirous of relying on this lease or any lease,

it would have been open for the plaintiff to have included the name of

the lessor in the list of witnesses, as provided for, which has not been

done and neither there is any reason or justification offered for the

same.

13. I am of the view that the applicant has miserably failed to give cogent

reasons as to why a lease of 2006, sought to be relied upon, could not

have been placed on record at the earliest opportunity available.

14. The legislature in its wisdom has carried out the amendments in the

Code of Civil Procedure. The aim and object of the amendments is to

ensure that matters are not delayed endlessly for placing documents

on record. Delay in filing written statement, documents have now

become a story of the past, as litigants are becoming more and more

conscious of their rights and there is pressing noise for speedy justice

and rightly so.

15. In the absence of any justification or reasons in the application why

the document could not be filed at an earlier stage, the reasons given

by the Joint Registrar cannot be faulted. Resultantly the present O.A.

is dismissed.

CS(OS) 2388/2007

16. List on 17.3.2015.

G.S.SISTANI, J DECEMBER 19, 2014 ssn /pdf