IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 OP(C).No. 270 of 2010(O) ------------------------ AGAINST THE ORDER IN IA.477/2010 IN OS.39/2007 of PRINCIPAL SUB COURT,KOCHI .................... PETITIONER: ------------------------------- BHANUMATHI, AGED 55, W/O.K.R.VITTAPPAN, RESIDING AT JAYADEV, 12/197, SANDO GOPALAN ROAD, KOCHI-2. BY ADV. SRI.K.V.SADANANDA PRABHU RESPONDENTS: --------------- 1. K.R.SARVOTHAMAN, MANAGING PARTNER, KANAKAM TRADING CO., BAZAR ROAD, MATTANCHERRY, KOCHI-2. 2. SMT.KANAKAM, 8/581, W/O.LATE M.R.SHENOI, T.D.EAST ROAD, KOCHI-2. 3. K.R.VITTAPPAN, 12/197 SANDO GOPALAN ROAD, KOCHI-2. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2010, THE COURT ON the SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.270 of 2010 --------------------------------------- Dated this 02nd day of November, 2010 JUDGMENT The question urged for a decision in this petition is whether a document which ought to have been produced along with the plaint or written statement or, original of documents which ought to have been produced on or before the settlement of issues could be produced at a later stage and the court has the power to receive such document in evidence?. 2. Short facts necessary for a decision of this question are: Petitioner is plaintiff in O.S.No.39 of 2007 of the court of learned Sub Judge, Kochi. That suit was being tried along with a few other suits treating O.S.No.39 of 2007 as the main suit. Issues were settled on 11-12-2007 and evidence of petitioner/plaintiff was over by 14-01-2010. Cases were posted for further evidence. While so, respondents/defendants filed Ext.P1, application seeking leave of the court to receive in evidence certain documents stating that they could trace out the documents only by then. Petitioner resisted that application contending that O.P(C).No.270 of 2010 : 2 : production of documents at that stage is not permissible. It was also contended that there was no justifiable reason for the belated production of the documents. Objections were overruled and Ext.P1, application was allowed by Ext.P3, order dated September 3, 2010. Learned Sub Judge observed in Ext.P3, order that in the interest of justice application is being allowed. That order is under challenge in this proceeding under Article 227 of the Constitution. Learned counsel for petitioner contends that in view of the amendment to Order XIII of the Code of Civil Procedure (for short, “the Code”) by the Code of Civil Procedure (Amendment Act, 2002) whereby Rule 2 of Order XIII of the Code was deleted, power of the court to receive in evidence documents which are not produced along with plaint/written statement and on or before the settlement of issues is taken away and hence the court below could not receive in evidence documents produced along with Ext.P1, application filed at the time of hearing. Learned counsel has referred me to the various provisions of Order VII, VIII and XIII of the Code and the changes brought about by the Amendment Acts of 1976, 1999 and 2002. 3. To understand the contention advanced and answer the questions raised, it is necessary to refer to the relevant provisions of the Code as amended in the year 1976 and O.P(C).No.270 of 2010 : 3 : thereafter. The relevant provisions are Rules 14, 15, 17 and 18 of Order VII, Rules 1 and 8A of Order VIII and Rules 1 and 2 of Order XIII of the Code as amended in the year 1976 and thereafter and Rule 4 of Order XVIII introduced by Amendment Act of 2002. The said provisions read as under: After Amendment Act 104 of 1976 Order VII: Rule 14 : Production of document on which plaintiff sues. (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. List of other documents . (2) Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint. Rule 15 : Statement in case of documents not in plaintiffs possession or power. Where any such document is not in the possession or power of the plaintiff, he shall, if possible, state in whose possession or power it is. O.P(C).No.270 of 2010 : 4 : Rule 17 : Production of shop-book. (1) Save in so far as is otherwise provided by the Bankers/ Books Evidence Act, 1891, where the document on which the plaintiff sues is an entry in shop-book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies. Original entry to be marked and returned. (2) The Court, or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification and, after examining and comparing the copy with the original, shall certify it to be so and return the book to the plaintiff and cause the copy to be filed. Rule 18 : Inadmissibility of document not produced when plaint filed. (1) 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, and which 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. (2) Nothing in this rule applies to documents produced for cross-examination of the defendant's witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory. O.P(C).No.270 of 2010 : 5 : Order VIII: Rule I : Written Statement. (1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. (2) Save as otherwise provided in Rule 8A, where the defendant relies on any document (whether or not in his possession or power) in support of his defence or claim for set-off or counter claim, he shall enter such documents in a list, and shall- (a) if a written statement is presented, annex the list to the written statement: Provided that where the defendant, in his written statement, claims a set-off or makes a counter-claim based on a document in his possession or power, he shall produce it in Court at the time of presentation of the written statement and shall at the same time deliver the document or copy thereof to be filed with the written statement; (b) if a written statement is not presented, present the list to the Court at the first hearing of the suit. (3) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. (4) If no such list is so annexed or presented, the defendant shall be allowed such further period for the purpose as the Court may O.P(C).No.270 of 2010 : 6 : think fit. (5) A document which ought to be entered in the list referred to in sub-rule (2), and which is not so entered, shall not, without the leave of the Court, be received in evidence on behalf of the defendant at the hearing of the suit. (6) Nothing in sub-rule (5) shall apply to documents produced for the cross-examination of plaintiff's witnesses or in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or handed over to a witness merely to refresh his memory. (7) Where a Court grants leave under sub- rule (5), it shall record its reasons for so doing, and no such leave shall be granted unless good cause is shown to the satisfaction of the Court for the non- entry of the document in the list referred to in sub- rule (2). Rule 8A: Duty of defendant to produce documents upon which relief is claimed by him. (1) Where a defendant bases his defence upon a document in his possession or power, he shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document or a copy thereof, to be filed with the written statement. (2) A document which ought to be produced in Court by the defendant under this rule, but is not so produced, shall not without the leave of the Court, be received in evidence on his O.P(C).No.270 of 2010 : 7 : behalf at the hearing of the suit. (3) Nothing in this rule shall apply to documents produced,- (a) for the cross-examination of the plaintiff's witnesses, or (b) in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or (c) handed over to a witness merely to refresh his memory. Order XIII Rule 1 : Documentary evidence to be produced (at or before the settlement of issues) (1) The parties or their pleaders shall produce (at or before the settlement of issues,) 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. (2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs. Rule 2 : Effect of non-production of documents. (1) No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 shall O.P(C).No.270 of 2010 : 8 : 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. (2) Nothing in sub-rule (1) shall apply to documents, - (a) produced for the cross- examination of the witnesses of the other party, or (b) handed over to a witness merely to refresh his memory. 4. Then came Central Act No.46 of 1999 whereby amendment was made to Rule 14 of Order VII. It was as under; Rule 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 ands hall, 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, wherever possible, state in whose possession or power it is. O.P(C).No.270 of 2010 : 9 : (3) Where a document or a copy thereof is not filed with the plaint under this rule, it shall not be allowed to be received in evidence on behalf of the plaintiff 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. Rule 15 of Order VII was omitted and in Order VII Rule 18, in sub rule (1) the expression “without leave of the Court” was omitted. Rule 1A was inserted in Order VIII which read as under: Rule 1A : Duty of defendant to produce documents upon which relief is claimed or relied upon by him (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. Rules 1 and 2 of Order XIII were omitted and in its place following rule was substituted- Rule 1 : Original documents to be produced at or before the settlement of issues:- (1) The parties or their pleader shall produce on or before the settlement of issues, all O.P(C).No.270 of 2010 : 10 : the documentary evidence in original where the copies thereof have been filed along with plaint or written statement. (2) the court shall receive the documents so produced. Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs. (3) Nothing in sub rule (1) shall apply to documents (a) produced for the cross examination of the witnesses of the other party (b) handed over to a witness merely to refresh him memory”. 5. Thereafter came Central Act 22 of 2002 whereby the Code as amended by Amendment Act of 1999 was further amended. After the amendment by Central Act 22 of 2002 the position is as under: In the place of sub rule (3) of Rule 14 of Order VII, the following was substituted: “(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. (Emphasis supplied) O.P(C).No.270 of 2010 : 11 : Rule 8A of Order VIII was omitted. Sub rule (3) of Rule 1A of Order VIII was substituted as follows:- “3. A document which ought to be produced in court by the defendant under this rule, but, is not so produced shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit”. (Emphasis supplied) The following rule was substituted for Order XVIII Rule 4: Rule 4 : Recording of evidence. “In every case, the examination in-chief of a witness hall be on affidavit and copies thereof shall be supplied to the opposite party by the party who call 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”. 6. Now the question is whether a document which ought to have been produced along with the plaint or written statement or, original of documents (copies of which are required to be produced along with plaint/written statement) which ought to have been produced on or before the settlement of issues could be produced after that stage and the court has the power to O.P(C).No.270 of 2010 : 12 : receive such documents in evidence?. Learned counsel for petitioner contends that the purport of taking away Rule 2 of Order XIII of the Code was to deprive the court of the power to receive documents produced after filing of the plaint/written statement and after the settlement of issues. Learned counsel has taken me through the object of Amendment Act No. 46 of 1999 where it is stated that it is to reduce the procedure prescribed and for early disposal of the cases that Amendment Act of 1999 has been enacted. 7. It is relevant to note that Rule 1 of order XIII of the Code as it stood by Act 104 of 1976 stated that parties or pleaders shall produce on or before the settlement of issues 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. Rule 2 of Order XIII stated that no documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 (of Order XIII) 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 reasons for so O.P(C).No.270 of 2010 : 13 : doing. The Amendment Act 46 of 1999 omitted Rules 1 and 2 of Order XIII and a new rule was inserted (quoted supra) which did not give power to the court to receive a document produced after the settlement of issues. In the Amendment Act 22 of 2002 it is stated that before action could be initiated for enforcement of Amendment Act 46 of 1999 the Bar Council of India and certain local Bar Associations asked the Government to re-look into certain provisions which could cause hardships to the litigants and accordingly the provisions of the Code (Amendment Act, No.46 of 1999) and other proposals to reduce delay in the disposal of civil cases were discussed with legal luminaries. The Government further considered the matter in all aspects after consulting the Bar Council of India and others concerned and based on the outcome of the deliberations it was proposed to further amend the Code of Civil Procedure, 1908 (by Amendment Act 22 of 2002) with demands of fair play and justice. One of the amendments proposed was that the documents may be produced by the plaintiff or by the defendant, as the case may be, with the leave of the court at the time of hearing of the suit where such documents could not be filed by the plaintiff along with the plaint or by the defendant with his written statement. Rule 14 of Order VII of the Code and Rule 1A of Order VIII of the Code as amended O.P(C).No.270 of 2010 : 14 : by Act 46 of 1999 did not provide an opportunity to the plaintiff or defendant, as the case may be to produce at the time of hearing of the suit documents which ought to have been produced along with plaint or written statement. Thus, it is taking into account the difficulties of litigants in that regard that the Code was further amended by Amendment Act 22 of 2002. The effect of that amendment is that provisions which enabled production of documentary evidence with leave of the court under Rule 2 of Order XIII of the Code as it existed earlier and which was taken away by Amendment Act 46 of 1999 was virtually brought back by sub rule (3) of Rule 14 of Order VIII and sub rule (3) of Rule 1A of Order VIII of the Code. 8. Rule 14(3) of Order VII and Rule 1A(3) of Order VIII of the Code states that a document which ought to be produced in court by the plaintiff or defendant along with the plaint or written statement or to be entered in the list to be added or annexed to the plaint or written statement but is not so produced or entered in the list shall not “without the leave of the court”, be received in evidence on his behalf at the time of hearing of the suit. It is relevant to note that the phrase “without the leave of the court” was not included sub rule (3) of Rule 14 of Order VII and sub rule (3) of Rule 1A of Order VIII of the Code by the Amendment Act 46 O.P(C).No.270 of 2010 : 15 : of 1999. In other words as sub rule (3) of Rule 14 of Order VII and sub rule (3) of Rule 1A of Order VIII now stand, it is within the power of the court to grant leave to the plaintiff or defendant to produce in evidence a document which he ought to have produced along with the plaint or written statement and entered in the list as required under sub rule (1) of Rule 14 of Order VII and sub rule (1) of Rule 1A of Order VIII of the Code but omitted to do so. but omitted to do so. 9. I must bear in mind a cardinal change brought about to Order XVIII of the Code. There, Rule (4) has been introduced by Amendment Act 22 of 2002 which refers to recording of evidence by affidavit and says that “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 parties who calls him for evidence provided that where documents are filed and 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”. In other words, the party has an opportunity to produce certain documents along with affidavit which is in lieu of examination in chief subject to the rider that its proof and admissibility will be subject to the orders of the court. It is relevant to note that the power of appellate court to receive O.P(C).No.270 of 2010 : 16 : additional evidence under Rule 27 of Order XLI has not been affected by any of the above mentioned amendments. Thus reading the amended provisions of Rule 14(3) of Order VII and Rule 1A(3) of Order VIII of the Code, it is not as if by deleting Rule 2 from Order XIII by Amendment Act 46 of 1999 power of court to receive in evidence a document at the time of hearing has been taken away completely but by Amendment Act 22 of 2002 the court is given the power to grant leave to the party to produce at the hearing of the suit documents which ought to have been produced with the plaint or written statement, but not so done. Rule 4 of Order XVIII introduced by Amendment Act 22 of 2002 enables documents other than those required to be produced along with plaint or written statement to be produced along with the affidavit in lieu of chief examination but its proof and admissibility will be subject to the orders of the court.. 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 O.P(C).No.270 of 2010 : 17 : 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 O.P(C).No.270 of 2010 : 18 : V Documents to disprove the claim or defence of opposite party. VI Documents which come into