Jyoti Mehta vs Sandeep Verma And Another
2021 Latest Caselaw 4449 UK

                                                         AFR

  IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

              Writ Petition (M/S) 2323 of 2021

Jyoti Mehta                          .................Petitioner

                         -versus-

Sandeep Verma and another                .........Respondents


     Date of hearing and Judgement : 09.11.2021


Advocates appeared in the case:-

For Appellant       : Mr.    Siddharth   Singh,     learned
counsel for the petitioner


For Respondents     :   Mr. Sagar Kothari,          learned
counsel for the respondent/caveator

Sri S.K.Mishra, J.

1. Heard Mr. Siddharth Singh, learned counsel for the petitioner and Mr. Sagar Kothari, learned counsel for the respondents.

2. In this writ application under Article 226/227 of the Constitution of India, the petitioner being defendant in O.S. No.277 of 2016, Sandeep Verma vs. Jyoti Mehta, has assailed the order passed by the learned Civil Judge (S/D), Dehradun on 23.02.2021 rejecting his application for acceptance of documents for the purpose of proving the same in support of the case of the defendant. The application was considered under Order 13 Rule 2 of the Code of Civil Procedure, which, if fact, has been omitted w.e.f. 01.07.2002 by

amending Act 46 of 1999. Prior to deletion of Order 13 Rule 2, it read as follows:

"2. (1) 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 the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing.

(2) Nothing in sub-rule (1) shall apply to documents,-

(a) produced for the cross-examination of the witnesses of the other party, or

(b) handed over to a witness merely to refresh his memory."

(underlined to emphasis)

Even if this provision is applied to a particular case, then also it is amply clear that there is no absolute bar created by the Code of Civil Procedure, 1908 for production of relevant and admissible documents which are necessary for just and proper judgement of the case at a later stage. Rather the court had the jurisdiction, if good cause is shown to the satisfaction of the court for non-production thereof.

3. Moreover, in this case, it is seen that by the time the application was considered, the amendment Act of 1999 has already come into force and a provision of Rule 1A were added to Order 8 of the Code, which is as under:

"1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.-- (1) 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 setoff or counterclaim, 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. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to document--"

************

4. This amendment came into force w.e.f. 01.07.2002.

In that view of he matter the documents which are largely revenue receipts showing payment of less tax and land revenue and also in previous family settlement should not even thrown out at the threshold only on the ground of delay, laches and being voluminous. The learned Civil Judge (S/D) has also held that once these documents have taken into consideration then the plaintiff will be highly prejudiced as he/she has no further opportunity of leading evidence against such materials. However, such reasoning is fallacious as the plaintiff has always the right of rebuttal evidence and in this case, the entire matter could have been set as fresh and the civil suit could have been disposed of on merits without the same being taken to the court of learned District Judge as well as this Court. The learned Civil Judge should have applied a judicious mind in a pragmatic manner rather than hiding behind technicalities.

5. Coming to the order passed by the learned District Judge in exercise of its revisional jurisdiction of the Code, it is seen that the ratio he has relied upon in the case of Sugandhi (dead) vs. P. Rajkumar, AIR 220 SCC 5486 militates against his own finding. It is in very clear terms the Hon'ble Supreme Court has held that whenever the technical or procedural considerations are pitted against cause of substantial justice, the second or later should be preferred, then to dismiss a meritorious claim of technical ground.

6. Considering the aforesaid, this Court is of the opinion that if the document is admitted the best that can happen is that the Civil Judge (S/D) will apply his mind on these documents, which have evidentiary value and give a final and conclusive judgment on it, which will obviate any further chance of remand by the appellate court only on the ground that relevant documents having bearing on the case were not considered. In that view of the matter we are of the considered view that the order passed by the learned Civil Judge (S/D) and the learned District Judge, Dehradun is not sustainable.

7. Hence, the writ application is allowed. Both the orders are hereby quashed. The matter is remitted back to the court of learned Civil Judge (S/D) for considering according to law after acceptance of the material documents filed by the defendant subject to proof and relevance.

8. The learned counsel appearing before the Court submits that the matter is pending before the learned Civil Judge (S/D) today for further arguments. We give liberty to the counsel for the defendant appearing therein, to bring it to the notice of the learned Judge Presiding, that such an order has been passed in this Court today and in such an event at least seven days time should be granted to them for production of certified copy of this order.

9. The writ application is accordingly allowed.

10. There shall be no order as to the costs.

11. Urgent certified copy of this order be granted on proper application.

(S.K.Mishra) Judge

KKS