NIRODE CH. DAS v. M/S RAJLAKSHMI BRICKS INDUSTRIES AND ORS

HIGH COURT OF TRIPURA

AGARTALA

CRP No.01 of 2018 Shri Nirode Chandra Das,

son of late Rajmohan Das,

resident of village: Ratanpur, P.S. Belonia, P.O. Ratanpur, District: South Tripura, at present residing at Srinagar, Milanchakra Road No.7,

P.O. A.D. Nagar, P.S. West Agartala, District: West Tripura, PIN: 799 003 ----Petitioner(s)

Versus

1. M/S Rajlakshmi Bricks Industries,

a partnership firm having its registered office at village: Ratanpur, P.S. Belonia, District: South Tripura, represented by Shri Uttam Roy, the defendant No.3, the attorney of the plaintiff and the defendants 2, 3 and 4

2. Shri Ratan Sarkar ,

son of late Nagendra Kumar Sarkar, P.O. & village: Baikhora, P.S. Baikhora, Santirbazar, District: South Tripura

3. Shri Uttam Roy,

son of late Debendra Kumar Roy, P.O. & village: Muhuripur, P.S. Baikhora, District: South Tripura

4. Shri Shib Prasad Sarkar,

son of Shri Kshetra Mohan Sarkar, resident of village & P.O. Muhuripur, P.S. Baikhora, District: South Tripura

5. Shri Masi Mog,

son of Shri Kunjachai Mog, resident of village: Kalashi, P.O. Baikhora, P.S. Baikhora, District: South Tripura

6. The Branch Manager,

State Bank of India, Santir Bazar Branch, P.O. Santir Bazar, P.S. Santir Bazar, District: South Tripura

---- Respondent(s)

1

Page 2 of 10

For Appellant(s) : Mr. A. K. Bhowmik, Sr. Adv. Mr. R. Datta, Adv.

For Respondent(s) : Mr. Somik Deb, Adv. Whether fit for

Reporting : YES

HON"BLE MR. JUSTICE S. TALAPATRA Judgment & Order

29/11/2018

Heard Mr. A. K. Bhowmik, learned senior counsel assisted by Mr. R. Datta, learned counsel appearing for the petitioner as well as Mr. Somik Deb, learned counsel appearing for the respondents.

02. By means of this petition, under Article 227 of the Constitution of India, the order dated 15.09.2017 delivered in Title Suit 05 of 2014 by the Civil Judge, Senior Division, South Tripura, Belonia has been challenged. By the said order, the application dated 07.08.2015 filed by the plaintiff-petitioner under Order VII Rule 14(3) read with Section 151 of the CPC has been rejected by denying leave to produce documents.

03. Briefly stated, the relevant facts are that the plaintiff-petitioner filed the suit being Title Suit No. 29/2013 initially, later on, on transfer, the suit was registered as Title Suit 05 of 2014, for rendition of accounts and for dissolution of the partnership firm named and styled as M/S Rajlakshmi

Page 3 of 10

Bricks Industries. The partnership firm was formed between the petitioner and the respondents No.2, 3, 4 and 5. From a reading of the said application it appears that the plaintiff- petitioner sought leave to produce documents as catalogued in the paragraph-3 of the said application. For purpose of reference, the said catalogue of the documents are extracted hereunder:

LIST OF DOCUMENTS

(i) Money receipt dated, 11.02.2010 issued by Ratan Sarkar and Uttam Roy

(ii) Information supplied by the Sale Tax Dept. dated, 23.07.2015 to the Raj Laxmi Brick Industry regarding the deposit of sale tax for the year 2009-10, 2010-11. 2011-12.

(iii) Summmons U/S 131 of Income Tax Act, 1961 dated,

07.12.2012.

(iv) Application to the Commissioner, Income Tax, dated

03.09.2012

(v) Receipt of Blue dart.

(vi) Receipts of DTDC.

(vii) Application to Commissioner of Income Tax dated,

29.10.2012.

(viii) Postal receipts.

(ix) Receipts of DTDC.

(x) Partners deposit accounts of Ratan Sarkar, Uttam Roy and Shibu Sarkar

04. The plaintiff-petitioner has stated in the said application filed under Order VII Rule 14(3) read with Section 151 of the CPC that those documents were misplaced and were not traceable at the time of filing the plaint or before the framing of issues. But those documents which were discovered and collected later are essential for proper adjudication of the case. In the para-2 of the said application, it has been further stated that the documents were detected

Page 4 of 10

when the plaintiff-petitioner were reshuffling the old files relating to Rajlakshmi Bricks Industries.

05. On perusal of those documents, the plaintiff- petitioner has stated to have realized that in absence of those documents proper adjudication would not be feasible. By the order dated 15.09.2017, the Civil Judge, Senior Division, South Tripura, Belonia has recorded that the plaintiff has submitted 'certain documents' by a firisti. It has been observed by the Civil Judge that there is no reference either in the plaint or in the examination-in-chief of the plaintiff about any documents which are required to be filed by him at a later stage. Moreover, the suit was fixed for cross-examination. Thus, the Civil Judge has declined to grant leave to the plaintiff-petitioner. As consequence thereof, the application filed under Order VII Rule 14(3) read with Section 151 of the CPC was rejected. The said order dated 15.09.2017 is under challenge in this petition.

06. Mr. A. K. Bhowmik, learned senior counsel appearing for the petitioner has submitted that from the reading of the order it would appear that under no circumstances even a very relevant document cannot be placed on record for purpose of its admission or on commencement of the hearing such document cannot at all be introduced in the record. Mr. Bhowmik, learned senior counsel has further submitted that Order VII Rule 14(3) has been embodied to regulate the production of the document at

Page 5 of 10

whim, but it does not foreclose the production of the document which is not produced or entered in terms of Order VII Rule 14(1) or 14(3) of the CPC. Order VII Rule 14(1) of the CPC requires that when the plaintiff sues upon a document or relies upon a 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. Order VII Rule 14(2) attends a situation when the documents though relied by the plaintiff but not in his possession to produce, the said provision attaches a duty on the plaintiff that where any document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power the said document is seized of. But for exceptional circumstances when the document is neither produced or entered in terms of Order VII Rule 14(1) or 14(2) of the CPC, Order VII, Rule 14(3) of the CPC provides as under:

"(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."

07. Mr. Bhowmik, learned senior counsel has submitted that the documents those were discovered later, to be very precise, on commencement of the trial are of immense relevance for adjudication of the suit. Mr. Bhowmik, learned

Page 6 of 10

senior counsel has further submitted that in the plaint it has been clearly mentioned that on 10.07.2009 a document in the shape of an agreement was executed by all the partners empowering the defendant No.2, Ratan Sarkar to sell bricks/bats produced by the partnership firm to the purchasers and to deposit the sale proceeds to the bank account of the firm. It was also agreed that the documents were properly maintained but it was later on found that all the transactions were not entered in the accounts. Even, the defendant No.2 did not make deposit in the bank account most of the money he had collected. The plaintiff under the provision of the said agreement took a loan of Rs.20.00 (Rupees twenty lakhs) from the account of partnership fund out of which he paid back a sum of Rs.5.00 (Rupees five lakhs) to the defendants No.2 & 3 on 11.02.2010 for deposit to the firm account. The plaintiff is responsible for balance payment from his share of the profit.

08. In the para-17 of the plaint it has been also asserted by the plaintiff-petitioner that he has drawn the balance sheet along with loss and profit account by engaging Professional Accountant from 2009-10, 2010-11 and 2011-12. Those balance sheets were duly audited. From the said audited accounts the plaintiff is entitled to get a further sum of Rs.3,50,974/- from the firm after adjustment of the loan amount availed by the plaintiff including interest thereon. It has been also mentioned that the partnership firm would be

Page 7 of 10

required to liquidate the liabilities including the outstanding bank loan. Therefore, a temporary mandatory injunction was sought for directing the defendants No.2 & 3 to liquidate the outstanding loan lying in the State Bank of India, Satirbazar Branch.

09. Finally, Mr. Bhowmik, learned senior counsel has submitted that the documents those are sought to be submitted are essentially relevant for adjudication. Those are the money receipts, deposit challans of sale-tax for the year 2009-10, 2010-11 and 2011-12, summon under Section 131 of the IT Act, one application made to the Commissioner of Sale Tax dated 03.09.2012, the receipts of the courier, again one application made to the Commissioner of Income Tax on 20.09.2012, further receipts of courier, partnership deposit accounts of Ratan Sarkar, Uttam Roy and Shibu Sarkar.

10. From the other side, Mr. Somik Deb, learned counsel has appeared and submitted that there is no whisper about these documents or their existence either in the plaint or in the list of documents. All on a sudden, the plaintiff has made the purported discovery. For seeking leave for production of those documents the said application was filed. But in the application, no ground has been made out why such exception should be made for granting leave. He has taken this court to the plaint to demonstrate that there is no reference of those documents and also to the application filed under Order VII Rule 14(3) of the CPC to show that no

Page 8 of 10

statement has been made either in the plaint or in the application why the existence of the documents was not disclosed in the plaint or why those were not produced in terms of Order VII Rule 14(1) of the CPC. Therefore at this stage if the documents are filed without any pleading, then it is really incomprehensible how those documents can be relevant, even if the general statement as referred by Mr. A. K. Bhowmik, learned senior counsel appearing for the petitioner has relied to show the relevance of those documents.

11. The reference has been made by Mr. Bhowmik, learned senior counsel in order to rebut the submission of Mr. Somik Deb, learned counsel for the respondents to a decision of the apex court in Sahodrabai Rai vs. Ram Singh Aharwar and Others reported in AIR 1968 SC 1079 where it has been observed by the apex court that the reference to the documents may not be the part of the pleadings but those can be taken in the evidence to lend support to the pleadings. Such document can be produced or filed.

12. On appreciation, this court finds the said observation was made in respect of the election petition where Section-83 of the Representation of the Peoples Act has more elaborately laid down the procedure. Even the decision as relied is not relating to belated filing of the document. Mr. Somik Deb, learned counsel, however relied on a decision of the apex court in Church of Christ Charitable Trust and

Page 9 of 10

Educational Charitable Society vs. Ponniamman Educational Trust reported in (2012) 8 SCC 706, where the apex court in the context of a suit for specific performance has observed as follows:

"In the case on hand, the plaintiff-respondent to get a decree for specific performance has to prove that there is a subsisting agreement in his favour and the second defendant has the necessary authority under the power of attorney. Order VII Rule 14 mandates that the plaintiff has to produce the documents on which the cause of action is based, therefore, he has to produce the power of attorney when the plaint is presented by him and if he is not in possession of the same, he has to state as to in whose possession it is. In the case on hand, only the agreement between the plaintiff and the second defendant has been filed along with the plaint under Order VII Rule 14(1). As rightly pointed out by the learned senior counsel for the appellant, if he is not in possession of the power of attorney, it being a registered document, he should have filed a registration copy of the same. There is no such explanation even for not filing the registration copy of the power of attorney. Under Order VII Rule 14(2) instead of explaining in whose custody the power of attorney is, the plaintiff has simply stated „Nil". It clearly shows non- compliance of Order VII Rule 14(2)."

[Emphasis added]

13. This court having appreciated the submission made by the learned counsel for the parties as well as the decision of the apex court in Church of Christ Charitable Trust

(supra) is of the view that unless the exceptional circumstances are credibly made out and the documents so filed are appreciated to be very relevant, the provision of Order VII Rule 14(3) may not be of any use in the present context. Moreover, there is no reference of the documents either in the plaint or in the examination-in-chief as filed by the plaintiff-petitioner even in the application filed under Order VII Rule 14(3) read with Section 151 of the CPC, there is no statement as to how the documents are very relevant in the context of the pleadings. For purpose of relevance, such

Page 10 of 10

statement is essentially required to prima facie satisfy the court that those are essential for adjudication of the suit. Only in that event, the court can grant leave in the case of a sudden discovery, otherwise not. The court cannot make an incisive reading of the documents at this stage for purpose of their introduction in the evidence. It is the solitary duty of the plaintiff-petitioner to make categorical statements in the application how the documents are relevant for purpose of adjudication of the suit. In that event only, the civil court can look at the documents to decide whether the leave would be granted or not. Except the statement of discovery, there is no statement in respect of nature of the document or how those documents filed by the plaintiff-petitioner are relevant. Hence, this court is of the view that there is no infirmity in the order dated 15.09.2017.

14. In the result, this petition stands dismissed. The interim order staying the proceeding of Title Suit 05 of 2014 by the order dated 09.01.2018 stands vacated. A copy of this order be sent to the court of the Civil Judge, Senior Division, South Tripura, Belonia forthwith.

JUDGE

Moumita