Madras High Court
The Managing Director vs M/S. Art Ply And Veneers on 20 October, 2021
C.R.P.(PD).Nos.417 to 419 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.10.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD).Nos.417 to 419 of 2017
and
C.M.P.No.1896 of 2017
The Managing Director,
Celebrity Corporate Club of City Center,
No.3, Anna Salai,
Chennai – 600 002. .. Petitioner
(in all the cases)
Vs.
M/s. Art Ply and Veneers,
Represented by its Partner Mr.Mithesh,
No.168/463, Sydenhams Road,
Periyamet,
Chennai – 600 003. .. Respondent
(in all the cases)
Common Prayer: These Civil Revision Petitions are filed under Article 227
of the Constitution of India against the fair and decretal orders dated
22.11.2016 passed in I.A.Nos.13071, 13545 & 13546 of 2016 in
O.S.No.4864 of 2014 on the file of the XIII Assistant City Civil Court,
Chennai.
In all the cases:
For Petitioner : Mr.A.Ilangovan
For Respondents : Mr.R.Karthikeyan
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C.R.P.(PD).Nos.417 to 419 of 2017
COMMON ORDER
(These matters are heard through “Video Conferencing/Hybrid Mode”.)
These Civil Revision Petitions are filed against the fair and decretal
orders dated 22.11.2016 passed in I.A.Nos.13071, 13545 & 13546 of 2016 in
O.S.No.4864 of 2014 on the file of the XIII Assistant City Civil Court,
Chennai.
2.The issues involved in all these Civil Revision Petitions are one and
the same and hence, these Civil Revision Petitions are disposed of by this
common order.
3.The petitioner is the defendant and the respondent / plaintiff filed the
suit in O.S.No.4864 of 2014 against the petitioner for recovery of money. The
petitioner filed written statement and is contesting the suit. Trial commenced.
The partner of the plaintiff viz., Mithesh was examined as P.W.1. The
counsel for the petitioner herein cross examined P.W.1. The evidence of
respondent was closed and the suit was posted for evidence on behalf of the
petitioner. The respondent, at that stage filed three applications viz.,
I.A.No.13071 of 2016 to condone the delay in filing the additional
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documents, I.A.No.13545 of 2016 to re-open the case for further evidence
and I.A.No.13546 of 2016 to recall P.W.1 for further evidence and to mark
the documents filed on behalf of the plaintiff. According to respondent, the
documents now sought to be marked were omitted to be filed along with
plaint and the same were traced only now and the documents are vital to
prove the case of the respondent and prayed for condonation of delay. In
I.A.No.13546 of 2016, the respondent has sought to mark the document and
recall P.W.1. The respondent filed two documents and hence, prayed to re-
open the case in I.A.No.13545 of 2016.
4.The petitioner filed common counter affidavit and contended that
P.W.1 was examined and cross examined and he admitted that the respondent
firm was not registered before the competent authority and the Xerox copy of
the Registration Certificate of the firm marked are cooked up document and
xerox copy of the document cannot be marked. The respondent has come out
with these applications only to fill up the lacuna and the same cannot be
permitted.
5.The learned Judge considering the averments in the affidavit, counter
affidavit, allowed all the three I.As, holding that merits of the case cannot be
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decided at present. The Court is satisfied with the reasons given by the
respondent and the respondent has right to mark the document and the same
cannot be denied. The learned Judge permitted the respondent to mark the
document subject to proof and relevancy of documents.
6.Against the said common order dated 22.11.2016 made in
I.A.Nos.13071, 13545 & 13546 of 2016, the present Civil Revision Petitions
are filed.
7.The learned counsel appearing for the petitioner contended that the
learned Judge committed an irregularity in allowing the applications for
condoning the delay in filing the additional documents, re-open the case and
to recall P.W.1 for further evidence. The learned Judge failed to see that
P.W.1 in cross examination admitted that firm was not registered and now the
documents produced are cooked up documents for the purpose of the case.
The learned Judge failed to see that P.W.1 was examined and cross examined
on several dates and the respondent took several adjournments and
subsequently, evidence on the side of the respondent was closed and the suit
was posted for evidence of the petitioner. At that stage, the respondent filed
three applications. The suit was filed in the year 2014 and if firm was
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registered, the respondent ought to have filed the Registration Certificate
along with the plaint. The said three applications are filed only to fill up
lacuna and the respondent cannot be permitted to mark the xerox copy of the
documents, which are not relevant to the issue in the suit. The learned Judge
failed to properly appreciate the provisions of Order VII Rule 14 and Order
XVIII Rule 17 of C.P.C. In support of his contention, the learned counsel
relied on the following judgments and prayed for setting aside the common
order passed in I.A.Nos.13071, 13545 & 13546 of 2016 and allowing the
Civil Revision Petitions:
(i) The judgment of the Hon'ble Apex Court reported in (2007) 5 SCC
730, (J.Yashoda Vs. K.Shobha Rani), wherein, the Hon'ble Apex Court, at
paragraph Nos.7 to 9, has held as follows:
“...7. Secondary evidence, as a general rule
is admissible only in the absence of primary
evidence. If the original itself is found to be
inadmissible through failure of the party, who files
it to prove it to be valid, the same party is not
entitled to introduce secondary evidence of its
contents.
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8. Essentially, secondary evidence is an
evidence which may be given in the absence of
that better evidence which law requires to be
given first, when a proper explanation of its
absence is given. The definition in Section 63 is
exhaustive as the Section declares that secondary
evidence "means and includes" and then follow
the five kinds of secondary evidence.
9. The rule which is the most universal,
namely that the best evidence the nature of the
case will admit shall be produced, decides this
objection that rule only means that, so long as the
higher or superior evidence is within your
possession or may be reached by you, you shall
give no inferior proof in relation to it. Section 65
deals with the proof of the contents of the
documents tendered in evidence. In order to
enable a party to produce secondary evidence it is
necessary for the party to prove existence and
execution of the original document. Under Section
64, documents are to be provided by primary
evidence. Section 65, however permits secondary
evidence to be given of the existence, condition or
contents of documents under the circumstances
mentioned. The conditions laid down in the said
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Section must be fulfilled before secondary
evidence can be admitted. Secondary evidence of
the contents of a document cannot be admitted
without non-production of the original being first
accounted for in such a manner as to bring it
within one or other of the cases provided for in the
Section.”
(ii) The judgment of the Hon'ble Apex Court reported in (2009) 4 SCC
410, (Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand
Prabhakar Gogate), wherein, the Hon'ble Apex Court, at paragraph Nos.22,
25 & 29, has held as follows:
“... 22. In support of his submissions, Mr.
Jadhav referred to a Single Bench decision of the
Allahabad High Court in Sunder Theaters Vs.
Allahabad Bank, Jhansi (AIR 1999 All. 14), where
a similar question arose and the Court observed
that the power of the Court under Order 18 Rule
17 CPC is discretionary and has to be exercised
with the greatest care and only in exceptional
circumstances. It was further observed that under
the garb of this rule, the Court ought not to recall
a witness at the instance of a party in order to fill
up a lacuna in the evidence already led.
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25. In our view, though the provisions of
Order 18 Rule 17 CPC have been interpreted to
include applications to be filed by the parties for
recall of witnesses, the main purpose of the said
rule is to enable the Court, while trying a suit, to
clarify any doubts which it may have with regard
to the evidence led by the parties. The said
provisions are not intended to be used to fill up
omissions in the evidence of a witness who has
already been examined.
29. It is now well settled that the power to
recall any witness under Order 18 Rule 17 CPC
can be exercised by the Court either on its own
motion or on an application filed by any of the
parties to the suit, but as indicated hereinabove,
such power is to be invoked not to fill up the
lacunae in the evidence of the witness which has
already been recorded but to clear any ambiguity
that may have arisen during the course of his
examination.”
(iii) The judgment of the Hon'ble Apex Court reported in (2010) 8
SCC 423, [Shalimar Chemical Works Limited Vs. Surendra Oil and Dal
Mills (Refineris) and others], wherein, the Hon'ble Apex Court, at paragraph
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No.15, has held as follows:
“...15. On a careful consideration of the
whole matter, we feel that serious mistakes were
committed in the case at all stages. The trial court
should not have "marked" as exhibits the Xerox
copies of the certificates of registration of trade
mark in face of the objection raised by the
defendants. It should have declined to take them
on record as evidence and left the plaintiff to
support its case by whatever means it proposed
rather than leaving the issue of admissibility of
those copies open and hanging, by marking them
as exhibits subject to objection of proof and
admissibility The appellant, therefore, had a
legitimate grievance in appeal about the way the
trial proceeded.”
(iv) The judgment of the Hon'ble Apex Court reported in (2013) 14
SCC 1, [Bagai Construction Thr. Its Proprietor Mr.Lalit Bagai Vs. Gupta
Building Material Store], wherein, the Hon'ble Apex Court, at paragraph
Nos.11 & 12, has held as follows:
“...11. ... we are of the view that the plaintiff
cannot be permitted to file such applications to fill
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the lacunae in its pleadings and evidence led by
him. As rightly observed by the trial Court, there
is no acceptable reason or cause which has been
shown by the plaintiff as to why these documents
were not placed on record by the plaintiff during
the entire trial.
...
12. After change of various provisions by
way of amendment in the CPC, it is desirable that
the recording of evidence should be continuous
and followed by arguments and decision thereon
within a reasonable time. This Court has
repeatedly held that courts should constantly
endeavour to follow such a time schedule. If the
same is not followed, the purpose of amending
several provisions in the Code would get defeated.
In fact, applications for adjournments, reopening
and recalling are interim measures, could be as
far as possible avoided and only in compelling
and acceptable reasons, those applications are to
be considered. We are satisfied that the plaintiff
has filed those two applications before the trial
Court in order to overcome the lacunae in the
plaint, pleadings and evidence.”
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8.Per contra, the learned counsel appearing for the respondent
submitted that the respondent firm was a registered one and at the time of
filing of the suit, the documents now sought to be marked were misplaced
and could not be filed at the time of filing of the suit. Only after completion
of evidence on behalf of the respondent, the documents were traced and
applications are filed to permit the respondent to mark those documents by
condoning the delay, by re-opening and recalling P.W.1. The respondent has
given reason for not filing the documents along with the plaint. The suit has
not reached the stage of marking the document after re-opening the evidence
of respondent and at the time of marking the documents, the respondent will
produce the original or produce the certified copy of the document as
secondary evidence. The contention of the learned counsel appearing of the
petitioner that xerox copy of the documents cannot be marked is premature
and untenable. The petitioner has original documents and petitioner will file
the original documents at the time of marking. The documents produced by
the respondent cannot be rejected to be marked as exhibits. The Court has to
mark the documents subject to objection and decide the admissibility and
relevancy at the time of delivering judgments. In support of his contention,
the learned counsel appearing for the respondent relied on the following
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C.R.P.(PD).Nos.417 to 419 of 2017
judgments and prayed for dismissal of the Civil Revision Petition.
(i) The Full Bench judgment of the Hon'ble Apex Court reported in
(2001) 3 SCC 1, [Bipin Shantilal Panchal Vs. State of Gujarat and
another], wherein, the Hon'ble Apex Court, at paragraph No.14, has held as
follows:
“...14. When so recast, the practice which
can be a better substitute is this: Whenever an
objection is raised during evidence taking stage
regarding the admissibility of any material or
item of oral evidence the trial court can make a
note of such objection and mark the objected
document tentatively as an exhibit in the case (or
record the objected part of the oral evidence)
subject to such objections to be decided at the last
stage in the final judgment. If the court finds at
the final stage that the objection so raised is
sustainable the judge or magistrate can keep such
evidence excluded from consideration. In our view
there is no illegality in adopting such a course.
(However, we make it clear that if the objection
relates to deficiency of stamp duty of a document
the court has to decide the objection before
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proceeding further. For all other objections the
procedure suggested above can be followed.)”
(ii) An order of this Court reported in 2006 (2) CTC 491,
(S.Rathinaswamy and others Vs. S.Bhanumathi and others), wherein this
Court at paragraph No.18, has held as follows:
“...18. The main object of Order 7, Rule
14(3), C.P.C., conferring the power upon the
Court to receive the documents in genuine cases is
to receive the documents if good cause is shown to
the satisfaction of the Court for the non-
production of the documents at the earlier stage.
The Courts are expected to receive the documents
and give an opportunity to the parties. The
Revenue Records like Village Plan and Survey
Numbers which were not within the knowledge of
the Plaintiffs and whose authenticity cannot be
doubted are to be received and the Court may
grant permission to receive those documents.
Case of the Plaintiffs is that there is no other
Cremation Ground in Thenkarai Velankudi
Village. Hence, the Village Plan is a document of
vital importance. That document stated to be not
traceable earlier. Permission may not be withheld
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due to the delay in production. Similarly, the
are Public Documents, which are to be received in
evidence to afford an opportunity to the Plaintiffs.
The reason stated by the Plaintiffs that those plans
were not traceable is genuine reason. In the
circumstances of the case, this Court is of the view
that the Trial Court ought to have exercised its
discretion under Order 7, Rule 14(3), C.P.C.
allowing the Plaintiff to produce the documents.
The Court below has not taken note of the fact
that the documents produced are the public
documents/Revenue Records and the reasons
stated by the Plaintiffs is that the Survey Plans
were earlier not traceable.”
(iii) The judgment of the Hon'ble Apex Court reported in (2009) 4
SCC 410, (Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand
Prabhakar Gogate), referred to above, the learned counsel appearing for the
respondent relied on paragraph Nos.16 & 17 of the said judgment relied on
by the learned counsel appearing for the petitioner.
(iv) An order of this Court dated 30.08.2017 in C.R.P.(PD).Nos.3309
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to 3312 of 2011 in the case of [Dharani Sugars and Chemicals Limited Vs.
T.M.N.Engineering Industries], wherein this Court at paragraph Nos.12 to
15, has held as follows:
“...12. The contention of the learned
counsel for the petitioner is that the respondent is
that the respondent is now seeking to file the
certified copy of the registration certificate in
Form A of the respondent firm issued by the
Registrar of Registration of Firms, Tiruchirapalli.
This document was available to the respondent at
the time of filing of the suit and when the evidence
on behalf of the respondent was re-opened, PW1
was recalled and respondent was permitted to file
additional document. The respondent did not avail
the said opportunity and failed to produce the
document now sought to be marked. The
respondent has not given any reason for not
producing the said document at the time of filing
of the suit or earlier. It only amounts to filing up
lacuna. These contentions are without any merits.
The Court has discretionary power to re-open the
evidence and to re-open any witness suo moto or
on submission by a party. The discretionary
power has to be exercised judicially, sparingly
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and in exceptional cases. The Court has to
consider whether re-opening of the evidence on
behalf of the parties and permission to mark a
document is necessary to decide the issue. The
Court has power to reopen, recall and permit
marking of documents, if the same is to clarify
certain ambiguity in the evidence let in by the
parties. Only when the intention of the party is to
fill up lacuna, drag on the proceedings and is
malafide or it will cause great prejudice and
prejudice to other party, the Court cannot allow
the request of the party for re-opening and let in
further evidence.
13. In the judgment reported in AIR 2009
(SC) 1604, cited supra, the Hon'ble Apex Court
has held that the Court can exercise discretionary
power to recall any witness to clear any ambiguity
that may have arisen during the course of his
examination and re-examination of a witness has
a bearing on the ultimate decision of the suit.
14. From the judgment referred to by the
learned counsel for the petitioner, it is seen that
the Court has discretion to recall the witness but
the said discretionary powers must be exercised
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sparingly and cautiously and should not be
exercised to allow the party to fill up lacuna. The
courts have power to reopen, recall and permit
further oral and documentary evidence if the same
has a bearing to decide the issues in the suit. In
the present case, the petitioner has raised the
issue of registration of respondent firm as well as
authority of person who has filed the suit on
behalf of the respondent during cross examination
and at the time of arguments. The respondent has
already filed certificate of registration of
respondent's firm, now the respondent seeks to file
certified copy of the registration certificate to
show the names of the partners. The respondent
has stated that certified copy of registration
certificate in Form 'A' maintained by Registrar of
Firm, Tiruchirapalli showing the names of
partners of the respondent is obtained and seek
permission to mark the said document. This will
not amount to filling up lacuna, as contended by
the learned counsel for the petitioner. On the
other hand, the names of the partners of
respondent's firm, as contained in the document
sought to be marked has a bearing to decide the
issue in the suit.
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15. The learned counsel for the respondent
contended that the Court cannot consider the plea
of the petitioner that respondent's firm is not a
registered firm, without raising the issue in the
written statement and relied on the judgment
reported in AIR (29) 1942 MADRAS 634, cited
supra. This judgment is not relevant to decide
these Civil Revision Petitions. It is open to the
respondent to raise this issue before the Trial
Court.”
9.Heard the learned counsel appearing for the petitioner as well as the
learned counsel appearing for the respondent and perused the entire materials
on record.
10.The respondent has filed three applications under Order XVIII Rule
17 and Section 151 of C.P.C. to recall P.W.1 for further evidence and to mark
the documents therein, under Section 151 of C.P.C. to re-open the case for
further evidence and also filed an application under Order VII Rule 14(3) and
Section 151 of C.P.C. to condone the delay in filing the documents mentioned
thereon and mark the same as exhibits on behalf of the plaintiff. As per Order
VII Rule 14(1), a plaintiff has to produce the documents on which he relies
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on to prove his case. The plaintiff has to file the list of documents relied on
by him along with the plaint. If certain document which the plaintiff relies on
is not available with him at the time of filing of the suit, he has to file the list
of documents along with plaint as per Order VII Rule 14(2) of C.P.C. When a
plaintiff has not included the list of documents along with plaint in the
documents relied on by him, he cannot file such document subsequently
without leave of the Court as per Order VII Rule 14(3) of C.P.C. Additional
document shown must be filed before commencement of cross examination,
mainly in order to avoid filling up lacuna in the cross examination of
witnesses. In the present case, the respondent has filed the said suit as a
partnership firm represented by its partner one Mithesh. The respondent did
not file the certificate of registration of respondent as partnership firm. The
petitioner in the written statement did not take a plea that the respondent firm
is not a registered partnership firm and the suit as framed is not maintainable.
Without raising such a plea in the written statement, during cross examination
of P.W.1, the counsel for petitioner has put questions with regard to
registration of respondent as partnership firm. Whether a firm is registered as
partnership firm or not, is a mixed question of fact and law. Without
pleading, the defendant, petitioner herein is not entitled to raise the said plea
during cross examination or during arguments. The counsel for petitioner
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without taking such a plea, put questions with regard to registration of
respondent firm to P.W.1 during cross examination. In such circumstances,
the respondent has filed the present three applications. As per Order XVIII
Rule 17, the Court has power to recall the witness on his own motion or on by
application filed by any one of the parties to the suit. From the judgment
relied on by both the learned counsel appearing for petitioner as well learned
counsel appearing for respondent, the ratio in the judgements are as follows:
(i) Recalling a witness is the discretionary power of the Court. The
discretionary power has to be exercised sparingly. A witness cannot be
recalled to fill up lacuna in the evidence let in by the parties. Similarly the
Court cannot permit a party to file additional document to fill up the lacuna.
(ii) The Court has power to reopen, recall and permit further oral and
documentary evidence if the same has a bearing to decide the issue in the suit
and necessary to decide the issue.
(iii) For clarification of certain ambiguity in the evidence let in by the
parties, the Court can reopen, recall and permit marking documents.
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(iv) Only when great prejudice to the other parties or intention of the
party is to fill up lacuna or to drag on the proceedings.
11. In the present case, the learned counsel appearing for the petitioner
has put certain questions with regard to non-registration of respondent firm.
A reading of the written statement shows that petitioner has not taken such a
stand in the written statement. In view of the same, the respondent is entitled
to recall P.W.1 and produce additional document to prove that the
respondent's firm is registered partnership firm. In view of the above, the
order of the learned Judge allowing all the three applications is valid and
legal.
12.The learned counsel appearing for the petitioner contended that the
learned Judge erred in permitting the respondent to mark the xerox copies of
the documents subject to proof and relevancy of the documents. According to
learned counsel appearing for the petitioner, the xerox copies of the
documents cannot be marked and it has to be rejected at the initial stage itself.
The learned counsel appearing for the petitioner relied on two judgments of
the Hon'ble Apex Court reported in (2010) 8 SCC 423 and (2007) 5 SCC 730,
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referred to above. In paragraph No.15 of the judgment of the Hon'ble Apex
Court reported in (2010) 8 SCC 423, referred to above, the Hon'ble Apex
Court has held that Trial Court should not have 'marked' as exhibits the xerox
copy of the certificates of registration of trade mark in the face of objection
raised by the defendants. The contention of the learned counsel appearing for
the petitioner that the learned Judge erred in permitting the marking of xerox
copy of the documents is rebutted by the learned counsel appearing for the
respondent on the ground that stage of the marking document has not been
reached in the suit and his contention is premature. The learned counsel
appearing for the respondent further contended that at the time of marking the
document, the respondent will produce either original or certified copies of
the document and mark the certified copy of the document as secondary
evidence by complying provisions of law. In view of the rival contentions, it
is open to the petitioner to object the marking of documents as per the finding
rendered in the judgment of the Hon'ble Apex Court reported in (2010) 8
SCC 423, referred to above. It is for the learned Judge to consider the nature
of documents and objections raised by the petitioner, either to mark the
documents with or without objections and subject to proof and relevancy or
straight away reject marking of the documents.
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13.With the above observations, all the Civil Revision Petitions are
dismissed. Consequently, the connected Miscellaneous Petition is closed. No
costs.
20.10.2021
krk
Index : Yes / No
Internet : Yes / No
To
The learned XIII Assistant Judge,
City Civil Court,
Chennai.
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C.R.P.(PD).Nos.417 to 419 of 2017
V.M.VELUMANI, J.
krk
C.R.P.(PD).Nos.417 to 419 of 2017
20.10.2021
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