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Preet Cold Storage And Another v. United Commercial Bank And Others

Punjab & Haryana High Court

Oct 7, 1988

Judgment

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Factual and Procedural Background

This revision petition challenges the order dated 28-3-1987 of the learned Sub Judge 1st Class, Samrala, which refused to allow two witnesses tendered by the plaintiff-petitioners to be examined at the stage of remaining evidence. The petitioners had brought Shri R. Krishanan (an engineer) and Sukhdev Chand (their accountant) to the witness-box, but the trial court disallowed their production.

The trial court's reasons included that Mr. R. Krishanan was to testify about a survey and loss arising from the collapse of the petitioners' cold-storage, whereas a survey had earlier been conducted and Mr. K.L. Bansal of M/s. K.L. Bansal & Company had already given evidence; when it emerged in cross-examination that Mr. Bansal was not a qualified surveyor, the petitioners sought to supply Mr. Krishanan to fill that lacuna. As to Sukhdev Chand, the trial court observed he had not been cited as a witness nor were the books of account he would produce specifically relied on in the list of reliance appended to the plaint.

The learned trial court relied on statutory provisions described in the opinion as "Order VII. Rules 14.15 and 18 of the Civil P.C. (for short 'the Code')." The High Court heard counsel and allowed the revision petition, set aside the trial court's order dated 28-3-1987, and directed the parties to appear before the trial court on 4-11-1988 for further proceedings, with leave for the petitioners to produce the two witnesses subject to the respondents' right to object to particular documents at the stage of arguments.

Legal Issues Presented

Whether the trial court erred in refusing to permit the petitioners to produce two witnesses (Shri R. Krishanan and Sukhdev Chand) at the stage of recording the petitioners' remaining evidence.
Whether documents (the survey report and the petitioners' books of account) not specifically produced with the plaint or expressly listed as relied-upon should be excluded under the provisions identified as Order VII Rule 14(1), Sub-rule (2) and Order VII Rule 18 of the Civil Procedure Code.
Whether the principles of natural justice and the court's discretion require permitting the production of these witnesses and their documentary evidence when the witnesses were present in court and no dilatory conduct is shown.

Arguments of the Parties

Petitioners' (Appellants') Position

The petitioners sought to produce Shri R. Krishanan to give evidence regarding a survey of loss and Sukhdev Chand, their accountant, to depose from their accounting records; both witnesses were present in court when the petitioners' evidence was to be recorded.
Documents and records relevant to loss and damage were listed in the list of reliance appended to the plaint (Item No. 4 referring to record of loss and damage and Item No. 6 referring to reliance on certain records), and therefore the survey report and accountants' records fell within the list of reliance and could be adduced as corroborative evidence.
The petitioners relied on procedural provisions (Order XVI Rule 1 and Rule 1-A of the Code) permitting the court, for reasons to be recorded or under Rule 1-A without applying for summons, to permit the calling of witnesses not named in the original witness list when sufficient cause is shown.

Respondents' Position

The respondents contended, invoking Order VII Rule 18 of the Code as cited in the opinion, that a document which ought to have been produced with the plaint or entered in the list annexed to the plaint but was not so produced or entered shall not be received in evidence on behalf of the petitioners at the hearing unless the court specifically grants leave for that purpose.
On that basis, the respondents argued the trial court correctly excluded the survey report of Mr. R. Krishanan and the books of account which Sukhdev Chand would produce because those documents were not filed with the plaint in the manner required by the cited rules.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court considered the relevant procedural provisions of the Civil Procedure Code as invoked by the parties. It began with Order XVI Rule 1 and Rule 1-A, observing that Rule 1 permits the court, for reasons to be recorded, to allow a party to call any witness not named in the witness list of Sub-rule (1) if sufficient cause for the omission is shown; Rule 1-A permits a party to bring any witness without applying for summons under Rule 1. The court concluded that the mere fact that the two witnesses were not named in the initial list should not have been decisive against their production, especially as both were present in court when the petitioners' evidence was to be recorded.

Turning to the trial court's reliance on Order VII Rule 14(1) and Rule 18, the court noted that Rule 14(1) mandates the production of documents which are the basis of the suit or upon which the plaintiff sues. However, the court emphasized that the rigour of mandatory production applies to documents that form the foundation of the suit and does not extend to documents produced merely as corroborative evidence in support of the claim. Sub-rule (2) of Rule 14 requires a list of other documents relied upon to be added or annexed to the plaint.

The High Court examined the list of reliance appended to the plaint and found Item No. 4 listing "record of loss and damage suffered and expenses incurred relating to plaint in question," which the court held would encompass a survey report of loss. Item No. 6 also referred to reliance on records from which the accountant could depose. On that basis the court concluded that the documents proposed to be produced through Mr. Krishanan and Sukhdev Chand were not foundational documents omitted from the plaint but were corroborative and were sufficiently referenced in the list of reliance.

The court acknowledged the respondents' submission based on Order VII Rule 18 that documents not produced or entered as required should not be received without leave, but it distinguished the present documents as not being the core foundational documents and noted that reliance on them had been made in the list appended to the plaint. The court also applied the principle of natural justice, observing that courts should afford parties a full opportunity to produce evidence and state their case; unless dilatory tactics or irrelevant evidence are being used to stall proceedings, discretion should favor permitting production. The facts showed no default or dilatory tactic by the petitioners and both witnesses were present.

Holding and Implications

Holding: The court allowed the revision petition and set aside the trial court's order dated 28-3-1987. The petitioners were directed to be permitted to produce the two witnesses (Shri R. Krishanan and Sukhdev Chand) before the trial court, and the parties were left to bear their own costs.

Implications:

The immediate effect is that the trial court's exclusion of the two witnesses is reversed; the trial court was directed to proceed on 4-11-1988 and to allow production of the said witnesses on behalf of the petitioners.
The respondents retain the right to raise objections to the production of any particular document produced through these witnesses; such objections are to be decided by the trial court at the stage of arguments in accordance with law.
The opinion does not purport to establish a novel legal precedent beyond applying existing procedural rules; it addresses the specific case and order under review and does not announce broader legal propositions beyond the analysis recorded above.

Show all summary ...

1. This revision petition is directed against the order dated 28-3-1987 passed by the learned Sub Judge 1st Class, Samrala. The case was fixed for the remaining evidence of the plaintiff-petitioners. Along with the other witnesses they had brought in Court Shri R. Krishanan, an enigneer. and Sukhdev Chand. their Accountant, to appear in the witness-box. Both these witnesses were not allowed to be produced vide the impugned order. The learned trial Court held that Shri R. Krishanan was sought to be produced to give evidence with regard to the survey made by him and the loss which the petitioners allegedly suffered on collapse of their cold-storage. It noticed the fact that it was the case of the petitioners in their plaint as also during the course of the evidence that the survey of the loss had been conducted by M/s. K.L. Bansal & Company, Mr. K.L. Bansal of the said Company had appeared in the witness box. When during cross-examination it was brought out that he was not a qualified Surveyor, the lacuna is sought to be filled in by producing Mr. R. Krishanan.

2. As regards Sukhdev Chand, Accountant of the petitioners, the learned trial Court observed that he was neither cited as a witness nor the books of account which he was required to produce in Court and from which he was to depose were relied on by the petitioners in the list of reliance filed in the Court. The learned trial Court for its impugned order gut support from the provisions of Order VII. Rules 14.15 and 18 of the Civil P.C. (for short 'the Code').

3. I have heard the learned counsel for the parties. I am of the considered view that the petitioners ought to have been allowed to produce the abovesaid evidence. Order XVI. Rule 1 of the Code, inter alia, provides that the Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness other than those whose names appear in the list referred to in Sub-rule (1) thereof, if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1-A thereof makes a further provision to the effect that any party to the suit may without applying for summons under Rule 1, bring any witness to give evidence or to produce documents. Thus, so far as the question of citing the aforesaid witnesses in the list initially filed by the petitioners is concerned, I am of the considered view that this fact alone ought not to have weighed with the learned trial Court to disallow their production as witnesses particularly when they were present in Court on the date when the evidence of the petititoners was to be recorded.

4. No doubt, the petitioners had already examined Shri K.L. Bansal of K.L. Bansal and Company regarding the survey of the loss suffered by them. The learned trial Court has sought support from the provisions of Order VII. Rule 14(1) of the Code for holding that since the petitioners had not filed the survey report of Mr. R. Krishanan or the books of account which Sukhdev Chand was to produce, these documents could hot be adduced in evidence through these witnesses. The aforesaid rule makes mandatory the production of documents which are the basis of the suit and where the plaintiff sues upon the documents in his possession or power. Its rigour does not apply to the documents which are sought to be adduced as corroborative evidence in support of the claim made in the plaint. Sub-rule (2) ibid lays down that where the plaintiff relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such document sin a list to be added or annexed to the plaint. The list of reliance appended with the plaint has been perused. Item 4 thereof mentions record of loss and damage suffered and expenses incurred relating to plaint in question. This certainly embraces in its fold a report regarding survey of the loss suffered. Sukhdev Chand is the Accountant of the petitioners. He could depose from their record. Reliance on the same is also placed in Item No. 6 of the list of reliance of documents adverted to above.

5. The learned counsel for the respondents vehemently contended that as provided in Order VII. Rule 18 of the Code, a document which ought to have been produced in Court by the plaintiff when the plaint was presented, or was in be entered in the list added or annexed to the plaint, but is not produced or entered accordingly, the court shall not receive such document in evidence on behalf of the petitioners at the hearing of the suit unless it specifically grants leave for the purpose. This rule no doubt makes it imperative for the parties to produce the documents along with the plaint on which the suit is founded and also to enter other documents in a list of reliance to be added or annexed to the plaint as provided by Sub-rule (2) of Rule 14 ibid. As I have already observed the documents sought to be produced through these witnesses are not those on which the suit is founded. Reliance cm them has been made as mentioned in the list attached with the plaint.

6. It is one of the cardinal principles of the rules of natural justice that full opportunity should be afforded to the parties to produce their evidence and state their case before the Court and the Court ought to exercise discretion in favour of production of evidence. No doubt where a party is using dilatory tactics and tries to stall the proceedings by seeking adjournment to produce witnesses whose evidence is not relevant, the Court is well within its power to refuse production of such evidence. But the facts as are found in the present case make it clear that no such default has been committed by the petitioners. Both the witnesses were present on the date when the evidence was to be recorded.

7. Consequently. I allow this revision petition, and set aside the order dt. 28-3-1987 of the trial Court, but leave the parties to bear their own costs.

8. The parties through their learned counsel are directed to appear before the learned trial Court on 4-11-1988 when it shall take further proceedings in accordance with law and allow the production of the aforesaid two witnesses on behalf of the petitioners. It is made clear that the respondents shall have the right to raise objection to the production of any particular document produced through the aforesaid witnesses which objection shall be decided by the trial court at the stage of arguments in accordance with law.