Sadhu Forging Limited v. Continental Engines Ltd.

Mukta Gupta, J.:— Plaintiff filed the present suit seeking a decree for a sum of Rs. 1,48,39,218/- along with interest pendent lite and future. Claim of the plaintiff in the suit is that the defendant placed a purchase order with the plaintiff on 25 March, 2004 for manufacturing and supplying of 25000 gear sets at the price of Rs. 4,000/- per set to be supplied as per specific designs and specification. The plaintiff acting on the purchase order invested a sum of Rs. 40 lakhs towards the manufacturing of the tooling as per their designs and specifications and regularly dispatched the gear sets. The total cost of the gear sets supplied by the plaintiff to the defendant was Rs. 3,40,88,000/-, however the defendants only made payment of Rs. 2,56,73,000/- along with the sum of Rs. 5,43,000/-. Besides the balance outstanding of Rs. 78,72,000/- defendants were also liable to pay a sum of Rs. 71,03,000/- as cost of inventory material and finished goods. Since the defendants failed to make the payment along with the interest and simultaneously to lift material from the premises of the plaintiff and also took back the toolings for the unamortized amount of Rs. 21,57,000/-, the plaintiff sent a legal notice dated 9 July, 2009 followed by another notice dated 20 August, 2009 however neither a reply nor any payment was received.

2. Pursuant to the completion of pleadings plaintiff's witness PW-1 entered appearance and tendered his evidence by way of affidavit. During the cross-examination of PW-1 plaintiff filed affidavit of another witness without him being named in the list of witnesses and along with the affidavit of PW-2 filed number of documents without seeking leave of the Court. Hence learned counsel for the defendant objected to the validity of the affidavit of PW-2 and the additional documents filed. Faced with this situation plaintiff filed an application being IA No. 7107/2016 under Order XVIII Rule 4 CPC which was heard by the learned Joint Registrar and dismissed vide the impugned order dated 7 September, 2016. Hence, the present appeal.

3. Before filing IA No. 7107/2016 plaintiff filed IA No. 18974/2014 under Order XI Rule 14 CPC calling upon the defendants to produce the documents mentioned in Para 5 of the application which application was partly allowed.

4. Learned counsel for the defendant/respondent submits that these documents had to be filed along with the plaint and cannot be now brought on record by the plaintiff with the aid of an application under Order XVIII Rule 4 CPC. He further submits that there is no fact which has come to the knowledge of the plaintiff after the filing of the written statement of the defendant nor were the fresh documents filed along with the affidavit of PW-2 not in the possession of the plaintiff so that he was restrained from filing it along with the plaint. Even if the documents had not been filed along with the plaint the documents were required to be filed at least before the settlement of issues. The plaintiff has not rendered any plausible explanation for non-production of the documents earlier. The procedure followed by the plaintiff by introducing a new witness and exhibiting fresh documents is impermissible under the Code of Civil Procedure. Learned counsel for the defendant also contends that permitting recalling of the witnesses is permissible only for a just decision of a case and not for filling up the lacunas. Affidavit of PW-2 along with the additional documents which were not filed earlier has been filed to fill up the lacunaes which were brought out during the cross-examination of PW-1.

5. Learned counsel for the plaintiff/applicant submits that the learned Joint Registrar incorrectly relied upon the decision of the Supreme Court in (2011) 11 SCC 275 K.K Velusamy v. N. Palanisamy. The said decision of the Supreme Court under Order XVIII Rule 17 CPC related to recalling of the witnesses after the parties had concluded their evidence and in the light of the stage of the proceedings, Supreme Court held that that same amounted to reopening of the evidence. Learned counsel for the plaintiff further contends that since PW-2 is not a summoned witness he was not obliged to file a list of witnesses including PW-2. Since the plaintiff is at liberty to examine as many witnesses at this stage and there is no bar to filing documents along with the affidavit of evidence of the plaintiff's witnesses, relevancy and admissibility whereof will be decided by the Court at the time of tendering the evidence, the objection raised by the defendant is unsustainable. Reliance is placed on the decisions at 98 (2002) DLT 201 Kirpal Chand v. Skipper Constructions Co. Pvt. Ltd.; AIR 2003 Bom 487 Kannappa Shetty v. Shri Babubhai Bhulabhi Parekh; AIR 2007 Bom 69 Mohanraj Rupchand Jain @ Chhajed v. Kewalchand Hastimal Jain; 2010 (4) KHC 920 Bhanumathi v. K.R Sarvothman; 2012 Joginder Singh v. Amar Nath Gupta and 213 (2014) DLT 13 (CN) Nishant Hannan v. South Delhi Municipal Corporation.

6. In the present case issues were settled on 10 May, 2011 and the parties were directed to file their list of witnesses within four weeks with a further direction to the plaintiff to file his evidence within four weeks. Despite opportunities, evidence by way of affidavit of the plaintiff's witnesses was not filed and finally on 5 July, 2012 evidence by way of PW-1 J.P Toshniwal duly authorized representative of the plaintiff's company was filed. It was further refiled on 31st July, 2012. On 10 April, 2013 PW-1 tendered his affidavit and was examined-in-chief and partly cross-examined. Thereafter cross-examination of PW-1 continued when plaintiff filed IA No. 18974/2014 under Order XI Rule 14 CPC followed by IA No. 7107/2016 under Order XVIII Rule 4 CPC.

7. No doubt plaintiff can examine as many witnesses it wishes to especially when plaintiff's witness is not required to be summoned even though not mentioned in the list of witnesses but the issue in the present appeal arises is, whether by examining witnesses not mentioned in the list of witnesses, plaintiff can introduce additional documents which had not been filed earlier either with the plaint or before settlement of issues.

8. Order XVIII Rule 4 reads as under:

“4. Recording of evidence.-

(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence.

Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.

(2) The evidence (cross-examination and reexamination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the court shall be taken either by the Court or by the Commissioner appointed by it:

Provided that the court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit.

(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.

(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:

Provided that any objection raised during the recoding of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.

(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.

(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.

(8) The Provisions of rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule.”

9. The application filed by the plaintiff under Order XVIII Rule 4 CPC ignores that the said provision is preceded by Order VII Rule 14 CPC which 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 documents 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 plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.”

10. On a plain reading of Order VII Rule 14 CPC, it is evident that the plaintiff is mandated to file documents to support its claim along with the plaint and a document which ought to be produced in Court by the plaintiff when the plaint was presented but has not been produced, shall not be received in evidence on behalf of the said party without the leave of the Court. In Bhanumathi (supra) the Kerala High Court noting down the relevant provisions which permitted the parties to produce original documents culled out the following principles.

“The documents on which Plaintiff or Defendant may rely on can be classified as follows:

I (a) Documents in the possession or power of the Plaintiff on which he sues or relies—such documents are to be produced along with the plaint as provided under Rule 14(1) of Order VII of the Code.

(b) Documents which are not in the possession or power of Plaintiff but on which he sues or relies—Plaintiff shall, wherever possible state in whose possession or power such documents are, as required by Sub-rule (2) of Rule 14 of Order VII.

II (a) Documents in the possession or power of the Defendant on which he bases his defence or relies—such documents shall be produced along with the written statement as provided under Rule 1A(1) of Order VIII.

(b) Documents on which Defendant bases his defence or relies and which are not in his possession or power—Defendant shall, wherever possible state in whose possession or power such documents are as required under Sub-rule (2) of Rule 1A of Order VIII.

III Originals of documents (copy of which have been produced along with the plaint or written statement) shall be produced on or before the settlement of issues as required under Rule 1 of Order XIII.

IV Documents on which Plaintiff or Defendant rely on incidentally but not to support his claim or defence.

V Documents to disprove the claim or defence of opposite party.

VI Documents which come into existence after the pleadings are filed.

Documents falling in categories I(a) and II(a) are to be produced along with the plaint/written statement

Documents falling in category No. III are to be produced on or before the settlement of issues.

If documents falling under category I(a) and II(a) are not produced along with the plaint or written statement as the case may be, the party has no right as such to produce those documents in evidence at the time of hearing, but in view of Sub-rule (3) of Rule 14 of Order VII and Sub-rule (3) of Rule 1A of Order VIII, the court has the power to receive such documents in evidence even at the time of hearing.

Documents falling under category I(b), II(b), III, IV, V and VI could be produced along with the affidavit in lieu of chief examination under Rule 4 of Order XVIII but its proof and admissibility will be subject to the orders of the Court.”

11. The present application is not under Order VII Rule 14(3) CPC but under Order XVIII Rule 4 CPC. However, mere invocation of a different provision of law will not entail dismissal of the application, if the facts have been properly elaborated. [See: (2004) 1 SCC 453 Challamane Huchha Gowda v. M.R Tirumala] In I.A No. 7107/2016 which can be treated to have been wrongly filed under Order XVIII Rule 4 CPC, the case of the plaintiff is that there is no bar to placing such documents along with the affidavit and no prejudice has been caused to the defendant, thus the document can be taken on record. It is further stated that the witness who is producing the said documents has dealt with the defendant and is in a position to prove the said documents. The plaintiff/applicant has sought leave of the Court to place the documents along with evidence of PW-2.

12. It is well-settled that procedure is the handmade of justice. It is undisputed that even at this stage, a party can file documents but with the leave of the Court. The plaintiff cannot be non-suited from filing the documents it seeks to rely upon even at this stage. Though in the decision Nishant Hannan (supra) this Court was dealing with unimpeachable documents, however the fact remains that under Order VII Rule 14 CPC read with Section 151 CPC the plaintiff can file additional documents with the leave of the Court when the plaintiff's evidence is going on. Provision under Order VII Rule 14 CPC is essentially to assist parties and the Court in adjudication of the dispute.

13. Consequently, the appeal is disposed of setting aside the impugned order dated 7 September, 2016 passed by the learned Joint Registrar. IA No. 7107/2016 is allowed subject to cost of Rs. 25,000/- to be paid by plaintiff to the Delhi High Court Legal Services Committee within two weeks.