Kejriwal Enterprises Vs. General Manager, Ordnance Factory and ors. - Court Judgment

Excerpt:
- orderp.k. samanta, j.1. the plaintiff/petitioner being a registered partnership firm has filed the commercial suit no. 219 of 1993 in the city civil court at calcutta praying for a decree for a sum of rs. 88,599.90 ps. along with the interest thereon at the rate of 24% p.a. from the date of filing of the suit till full realization from the defendant/opposite parties namely the ordnance factory, khanari, jabbalpur and other authorities of the central government. though the plaintiff/petitioner has filed the above suit as being the registered partnership firm but the firm, registration certificate in respect thereof was not filed while the plaint was presented. at the hearing of the suit, the plaintiff/petitioner made an application to adduce evidence as to the registration of its.....

Judgment:
ORDER

P.K. Samanta, J.

1. The plaintiff/petitioner being a registered partnership firm has filed the Commercial Suit No. 219 of 1993 in the City Civil Court at Calcutta praying for a decree for a sum of Rs. 88,599.90 ps. along with the interest thereon at the rate of 24% p.a. from the date of filing of the suit till full realization from the defendant/opposite parties namely the Ordnance Factory, Khanari, Jabbalpur and other authorities of the Central Government. Though the plaintiff/petitioner has filed the above suit as being the registered partnership firm but the Firm, Registration Certificate in respect thereof was not filed while the plaint was presented. At the hearing of the suit, the plaintiff/petitioner made an application to adduce evidence as to the registration of its partnership business by recalling P.W. 1. The said application has been rejected by the impugned order.

2. The learned trial Court is of the view that the Code of Civil Procedure, as amended which has come into force with effect from 1-7-2002 has not provided for production of evidence which has not been disclosed at the time of presentation of the plaint. In particular, the learned trial Court has proceeded on the basis that since Order 18, Rule 17-A of the Code has been omitted from the Code by Amendment Act 46 of 1999 having the effect from 1-7-2002, there is no scope for production of such evidence at the stage of trial which has not been disclosed at the time of presentation of the plaint as per the provisions of Order 7, Rule 14 of the Code.

3. Before amendment of the Code of Civil Procedure by Amendment Act 46 of 1999 which has taken effect from 1-7-2002, Rule 17-A of Order 18 of the Code was inserted into the Code by Act 104 of 1976 with effect from 1-2-1977. The said Rule read as under :

'Procedure of evidence previously known or which could not be produced despite due diligence.-- Where a party satisfies the Court that after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just.'

4. While Rule 17-A of Order 18 was introduced by Act 104 of 1976, the provisions of Order 7, rule 14 read as under :

'Production of document on which, plaintiff sues.-- (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.

(2) List of other documents.-- Where he relies on any other document (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.'

5. It is interesting to note that while by Amendment Act 46 of 1999 the provisions of Order 18, Rule 17-A of the Code has been omitted with effect from 1-7-2002, the Amendment Act 22 of 2002, has inserted Sub-rule (3) to Rule 14 of Order 7 with effect from the self-same date i.e. 1-7-2002 which reads as under :

'A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received incidence on his behalf at the hearing of the suit.'

6. Order 7, Rule 14 of the Code before its amendment by Act (46 of 1999 stood as under :

'Rule 14.-- Production of document on which plaintiff sues.--

(1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.

(2) List of other documents.-- Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.'

7. By the aforesaid amending Act, and before its amendment by Act 22 of 2002 the same read as under :

'14. Production of document on which plaintiff sues or relies.-- (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, 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 produced for the cross-examination of the plaintiffs witnesses, or, handed over to a witness merely to refresh his memory.'

8. Thus it is evident that while there was no insertion of Sub-rule (3) of Rule 14 of Order 7, or substitution of said sub-rule by amendment Act 22 of 2002 as above, there was a distinct provision under Order 18-A of Rule 17-A of the Code to cover the situation where the documents, which the plaintiff wants to tender in evidence, were either not presented along with the plaint or not entered in the list for being tendered in evidence. Because of substitution of Sub-rule (3) to Rule 14 of Order 7 of the Code as above by Amendment Act 22 of 2002 the legislature thought it necessary to omit the provisions of Rule 17-A of Order 18 which became redundant as the plaintiff would still be entitled to tender the documents, in evidence, even if the same have not been presented along with the plaint or entered in the list added or annexed to the plaint, for being tendered in evidence at the hearing of the suit. In such a situation, the leave of the Court, as required to be obtained under Order 18, Rule 17-A of the Code, is now to be obtained under Order 7, Rule 14, Sub-rule (3) of the Code.

9. Upon reasonable construction of the provisions of Order 7, Rule 14, Sub-rule (3) as amended by Amendment Act 22 of 2002 and amending Act 46 of 1999 whereby the provisions of Rule 17-A of Order 18 has been omitted from the Code, this Court is of the view that, the documents, which have not been presented along with the plaint and also have not been entered in the list that has been added or annexed to the plaint as per the provisions of Order 7, Rule 14 Sub-rule (1) of the Code could still be tendered in evidence with the leave of the Court which the Court may grant in exercise of jurisdiction under Sub-rule (3) of Rule 14 of Order 7 of the Code as amended by Amendment Act 22 of 2002.

10. In all such considerations, the impugned order, rejecting the petition of the plaintiff/petitioner purely on the ground, that since Rule 17-A of Order 18 of the Code has been omitted by Amending Act 46 of 1999, there is no scope for production of documentary evidence, which have not been presented along with the plaint, has been made in exercise of jurisdiction illegally and with material irregularity. The same is therefore set aside. The application as filed by the plaintiff/petitioner shall accordingly stand allowed. This revisional application is thus allowed..

11. If urgent Xerox certified copy of this order is applied for by the parties, the same should be given expeditiously.