1. This rule, obtained by the judgment-debtors, raises a question of first impression. It involves the interpretation of R. 10, Sec. III, Chap. I, Part IV, at page 106, of the General Rules and Circular Orders of the High Court of Judicature at Patna, (Civil), 1954, Volume I, hereinafter referred to as the ‘G.R and C.O’ The facts are these. The decree-holder-opposite party obtained a decree for removal of certain encroachments against the petitioners. This decree was put into execution on the 28th November, 1957. A pleader commissioner was appointed,: as prayed for, on behalf of the decree-holder, to remove the encroachments and to carry out the other directions in the decree under execution.

2. On the 8th May, 1958, the petitioners filed an application, under Section 47 of the CPC, hereinafter referred to as ‘the Code’, which was registered as Miscellaneous Case No. 269 of 1958.

3. On the 22nd December, 1958, the opposite party, in this case, filed certain documents including a private report of a pleader-commissioner, in a closed cover. On the 10th June, 1960, the petitioners made an application for being permitted to inspect the documents, which the opposite party that filed in the closed cover earlier. This prayer of the petitioners was allowed. The documents, filed by the opposite party in the closed cover, were, thereafter, inspected by the petitioners' lawyer on the 23rd June, 1960.

4. The petitioners, then, made an application for a copy of the private report of the pleader commissioner, filed by the opposite party in the dosed cover. The copying department objected to its copy Being granted unless ordered by the Court. The petitioners, thereupon, filed a petition in Court, on the 12th July, 1960, stating therein the facts, mentioned above, and, praying that necessary Orders may be passed for granting a copy. This application, however, was rejected by the Court below on the same day, on the ground that the copy of the document will be made available after it is taken in evidence and marked as an exhibit.

5. It may be mentioned here that the hearing of the miscellaneous case, filed by the petitioners, Miscellaneous Case 269/58, had already started on the 6th December, 1958. The petitioners, then, moved this Court in revision against the aforesaid order of the Court below rejecting their application for a copy of the private report of the pleader commissioner filed in the closed cover by the opposite party.

6. This application is not opposed, as there is no appearance on behalf of the opposite party.

7. Mr. Sarwar Ali, who appeared, in support of the rule, contended that the Court below has put a wrong construction on the aforesaid Rule 10 of the G.R and C.O and, that, on a true interpretation of the same, the petitioners were entitled to a copy of the pleader commissioner's report, even though it had not been tendered in evidence and exhibited in the case, because the said document was a part ‘of the record of the suit’, within the meaning of the said Rule 10. He, further, submitted that the said report, filed on the 22nd December, 1958, by the opposite party, in the miscellaneous case, is covered by O. XIII of the Code, which is referred to in Note 2 to the said Rule 10, and, therefore, the petitioners were entitled, as a matter of right, to a copy of the said report.

8. Section III of Chapter I, Part IV, at page 106, of G.R and C, O., deals with granting of ‘Copies’. Rule 10, with Note 2, under S. III, just mentioned, which only is material for our purpose, is in these terms:—

“III-Copies.

10. A plaintiff or a defendant who has appeared in the suit is entitled at any stage, before or after decree, to obtain copies of the record of the suit including exhibits which have been put in and finally accepted by the Court as evidence.

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Note 2, This rule does not prohibit the giant to parties at any stage of copies of documents produced along with the plaint or under Order XIII of the CPC, in cases where they do not wish to take copies themselves under the provisions of Order XI, Rule 15.

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9. Note 3 of the said R. 10 of G.R and C.O, provides that the word ‘suit’ in Rule 10 and in Rules 11, 12 and 13 of the said section III shall include execution and miscellaneous cases. Rule 10, under consideration, therefore, will apply to the miscellaneous case, in the instant case, filed by the petitioners.

10. The first question, however, is: What is the meaning of the expression ‘record of the suit’ used in the said Rule 10?

11. There is no doubt that, under Rule 10, a party is entitled to copies of documents which have been accepted by the Court as evidence and marked as exhibits in the case. It is also plain from Note 2, to Rule 10, reproduced in extenso earlier that a party is entitled to copies of documents produced along with the plaint, or under Order XIII of the Code. Note 1, to Rule 10 of G.R and C.O, provides that a party, who has been ordered to file a written statement is not entitled to inspect or take a Copy of a written statement filed by another party until he has filed his own.

12. We are, however, not concerned, here, with Note 1. If Rule 10 is read along with its Note 2, then, it is manifest that the words ‘record of the suit’ contemplate and include three classes of documents, namely, (i) which have been exhibited as evidence in the case; (ii) which have been filed along with the plaint; and (iii) which have been produced under Order XIII of the Code. On the true construction and meaning of the said Rule 10, therefore, a party is entitled, at any stage, before or after decree, to off tain copies only of the above three classes of documents, which alone would be deemed to be ‘the record of the suit’ within the meaning of Rule 10.

13. The crucial question, therefore, is: Can the private pleader commissioner's report, there, filed by the opposite party, on the 22nd December,.1958, after the hearing of the case had started earlier on the 6th December, 1958, be considered to have been produced under Order XIII of the Code, as contemplated by Note 2 to Rule 10 of G.R and C.O?

14. Order XIII of the Code deals with ‘Production, Impounding and Return of Documents’. Rule 1 of Order XIII deals with production of documents and Rule 2 of Order XIII deals with the effect of non-production of documents.

15. Rule 1(1), as amended by the Patna High Court, and, Rule 2, of Order XIII of the Code, are to the following effect:

“Order XIII

L(1) The parties or their pleaders shall produce at the first hearing of the suit, or, where issues are framed, on the day when issues are framed or within such further time as the Court may permit, all the documentary evidence of every description in their possession or power on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.”

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“2. No documentary evidence in the possession car 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.”

16. Rule 1(1) of Order XIII of the Code, provides that all documentary evidence, on which the parties intend to rely, shall be produced at the first hearing of the suit, or where issues are framed, on the day when issues are framed, or within such further time as the Court may permit. This rule, however, does not exclude the discretion of the Court to receive documentary evidence at a subsequent stage of the proceeding.

17. Rule 2, therefore, enacts that, if any documentary evidence is in possession or power of any party, which should have been produced, but has not been produced, in accordance with the requirements of Rule 1, shall not be received at any subsequent stage of the proceeding, ‘unless good cause is shown’ for the non-production thereof. Rule 2 makes she satisfactory explanation for non-production at the first hearing a condition precedent for the reception of documents produced out of time. But his Rule 2 must be liberally construed so as to advance the cause of justice. As observed by Sir Lionel Leach, of the Privy Council, in Kanda v. Waghu, AIR 1950 PC 68 : 77 Ind App 15:

“The Court has a discretion and while generally speaking it will be a wise exercise of the discretion to admit such evidence, the question must be decided in each case in the light of the particular ciraimstances.”

18. The Court, therefore, may, in its discretion, admit other documents also in evidence at a subsequent stage of the proceeding, even if they have not been produced in accordance with the requirements of Rule 1.

19. The expression ‘record of the suit’, used in Rule 10 of G.R and C.O, occurs also in R. 7 of Order 13 of the Code.

20. Rule 7 of Order 13 reads thus:—

“(1) Every document which has been admitted in evidence, or a Copy thereof where a copy has been substituted for the original under Rule 5, shall form part of the record of the suit

(2) Documents not admitted in evidence shall act form part of the record and shall be returned 80 the persons respectively producing them.”

21. From Rule 7, above quoted, it is plain that documents admitted in evidence are the only documents that can legally be on record; and, other documents cannot be on record of the suit. The language of Rule 7 shows that the document must be either placed on the record or returned to the person producing it. There is no alternative. Rule 7(2) is explicit, and, therefore, a document not having been admitted in evidence, cannot be treated as forming part of the “record of the suit”, even though, in fact, it is found amongst the papers on the record. Such document has to be removed from the record of the suit and returned to the person producing it.

22. Rule 7 of Order 13 of the Code, therefore, gives a restricted meaning to the expression “record of the suit” used therein; but Rule 10, read with its Note 2 of G.R and C.O gives a wider meaning to the expression “record of the suit”, used in it, inasmuch as, Rule 10, read with Note 2, includes not only documents envisaged by Rule 7(1) of Order 13 of the Code, but also documents produced along with the plaint or under Order 13 of the Code, even though such documents have not yet been admitted in evidence and marked as exhibits in the suit.

23. That this is the true meaning and construction of the words, “record of the suit”, used in Rule 10 of G.R and C.O is borne out also by the language of the said Rule 10 itself. Rule 10 speaks of “copies of the record of the suit including exhibits”? The use of the word “including” in Rule 10 does indicate that the expression “record of the suit” has been used in Rule 10 in a wider sense.

24. It is well settled that the expression “including” is very generally used in interpretation Clauses in order to enlarge the meaning of words or phrases occurring in the body of the Statute; and when it is so used, these words or phrases must be construed as comprehending not only such things as they signify according to their natural import, but also those things which the interpretation Clause declares that they shall include. The word “including”, therefore, is a term of extension. It imports addition. It adds to the subject-matter already comprised in the definition.

25. Here, Note 2 to Rule 10 pin-points the above meaning of the word “including” used in Rule 10 of G.R and C.O Note 2 explains the scope of Rule 10 and it provides that Rule 10 does not prohibit the grant of Copies of documents produced along with the plaint or under Order XIII of the Code. The expression “record of the suit”, therefore, has been used in a wider sense in Rule 10 of G.R and C.O so as to include also the documents contemplated by Rule 7(1) of Order XIII of the Code.

26. The crux of the matter, therefore, is, can the private report of the pleader commissioner, in the instant case, be Considered to have been filed under Order XIII of the Code?

27. Let us, therefore, examine the position, here, along-side both Rule 1 and Rule 2 of Order XIII of the Code.

28. Rule 1 of Order XIII speaks of “first hearing of the suit”. There is no question here of framing issues or the like, spoken of in Rule I. The question, then, is, what was the date of first hearing of the case, here, within the meaning of Rule 1 of Order XIII of the Code read with Note 3 of Rule 10 of G.R and C.O?

29. It appears from Order No. 23, dated 21st May, 1958, of the Court below that the first date fixed for the hearing of the miscellaneous case was the 3rd of June, 1958, and, thereafter, it was adjourned from date to date. These documents were filed on the 22nd December, 1958, which was the date fixed for further hearing of the case. The documents filed by the opposite party on the 22nd December, 19581, after its hearing had already started on the 6th of December, 1958, and long after the date fixed for the first hearing of the case, were, therefore, not file in accordance with Rule 1 of Order XIII of the Code.

30. Rule 2 of Order XIII of the Code, however, gave discretion to the Court, on good cause being shown, to receive documents subsequently filed, when the document is tendered and before it is marked as an exhibit. The only reasonable construction of the words “unless good cause is shown for the non-production thereof”, occurring in R. 2 of Order XIII of the Code, is to construe them as meaning unless good cause is shown for reception in evidence in spite of such non-production.

31. The private report of the pleader commissioner having been filed at a subsequent stage, long after the first hearing of the case can, therefore, at best come under Rule 2 of Order XIII of the Code. But, admittedly, this private report of the pleader commissioner, of which a copy was asked for by the petitioners, has not yet been tendered in evidence nor has it yet been marked as an exhibit in the case, nor, has the Court yet been asked to exercise its discretion under Rule 2 of Order XIII of the Code, and, as a matter of fact, the stage for the application of Rule 2 of Order XIII, has not yet been reached.

32. It may be that the opposite party may not use this document at all and may not tender it in evidence on his behalf. The occasion for the exercise of its jurisdiction by the Court under R. 2 of Order XIII may not, therefore, Come at all. The Court, therefore, has not, as yet, exercised its discretion even under Rule 3 of Order XIII of the Code, which gives widest possible judicial discretion to the Court to reject any document which it considers irrelevant or otherwise inadmissible.

33. It is a document, which has only been filed by the opposite party, but the Court has not as yet received it within the meaning of Rule 2 of Order XIII of the Code so as to make it a part of “the record of the suit” and bring it within the purview of Rule 10 of G.R and C.O, under consideration. Simply because it has been filed and is amongst the papers on the record will not make it a part of ‘the record of the suit’ as contemplated by Rule 10, at page 106, of G.R and C.O Rule 2 of Order XIII, therefore, also does not apply to the present case.

34. For the above consideration, in my opinion, in the instant case, the private report of the pleader commissioner, filed by the opposite party, cannot be considered to have been produced under Order XIII of the Code as postulated by Note 2 of Rule 10 of G.R and C.O

35. In view of Rule 10, read with Note 2 of G.R and C.O, therefore, the petitioners are not entitled to have a copy of the said private report of the pleader commissioner, unless it is tendered and admitted in evidence and marked as an exhibit in the case.

36. For the reasons given above, I hold that the Court below has rightly rejected the application of the petitioners for a copy of the private report of the pleader commissioner, filed by the opposite party on the 22nd of December, 1958, and, accordingly, its order is affirmed. In the result, the application fails, and, is dismissed, and the rule is discharged; but, as there is no appearance on behalf of the opposite party, there will be no order for costs.

BE/K.S.B

37. Application dismissed.