Badar Durrez Ahmed, J. (Oral)— The first application (IA 6388/2006) has been filed under Order 7 Rule 14, Order 16 Rule 1, read with Section 151 of the Code of Civil Procedure 1908, (hereinafter referred to as ‘the CPC’) for production of additional documents and for filing an additional affidavit. The second application (IA 9770/2006) has been filed under Section 151, CPC for summoning a witness from the Indian Overseas Bank, Defence Colony, New Delhi for the production of certain documents mentioned in the said application. Essentially, the question relates to the production of documents by the plaintiff.
2. The suit is at the stage where the plaintiff has closed its evidence in affirmative. The plaintiff's witnesses have been cross-examined and now the defendant's witnesses have to be cross-examined. Both these applications were filed prior to the defendant's witnesses having filed their affidavits by way of evidence. The learned Counsel for the plaintiff/applicant submitted that these documents, which are to be produced at this stage, were inadvertently left out by the plaintiff and the plaintiff's attention was drawn to them only in the course of the cross-examination of PW2 by the defendant wherein specific questions regarding the settlement of the claims of the foreign buyer COGETEX and also of the filing of the suit in Switzerland against the plaintiff were raised.
3. Order 7 Rule 14 reads 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, where 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 plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.”
4. A plain reading of Order 7 Rule 14 (3) makes it clear that 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. The learned Counsel for the plaintiff submits that leave of the Court ought to be granted to the plaintiff for producing the additional documents referred to in the application under Order 7 Rule 14 and as also for calling the witness for producing the documents mentioned in the other application. The learned Counsel for the plaintiff referred to the decision of the Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2005) 6 SCC 344. With reference to paragraph 13 thereof, the learned Counsel submitted that the Court may permit leading of such evidence even at a later stage subject to any terms that may be imposed upon by the Court which may be just and proper.
5. 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.”
6. 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.
7. These applications are dismissed without prejudice to the rights and contentions of the parties which they may otherwise have in law.
Applications dismissed.