IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 OP(C).No. 912 of 2010(O) ------------------------ OS.23/2008 of ADDL.SUB COURT, PALAKKAD .................... PETITIONER:- ------------------ PREMNATH, S/O. RAMANATHAN, B/105, GRIHALAKSHMI APARTMENT, S.M.ROAD, BANGALORE, NOW AT DUBAI. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SMT.O.K.SANTHA SMT.S.SANTHY RESPONDENTS:- --------------------- 1. THE MANAGING DIRECTOR, WELL PRINT COMPUTER FORMS (P) LTD., NIDA, MENONPARA ROAD, KANJIKODE, PALAKKAD-678 621. 2. M/S. WELL PRINT COMPUTER FORMS (P) LTD., NIDA, MENONPARA ROAD, KANJIKODE, PALAKKAD-678 621. BY ADV.SRI.ANIL D.NAIR THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. = = = = = = = = = = = = = = OP(C).No.912 of 2010-O. = = = = = = = = = = = = = = Dated this the 2nd day of December, 2010. J U D G M E N T In a suit for money filed by petitioner against the respondents, learned Addl.Subordinate Judge, Palakkad ordered examination of petitioner on commission as provided under Order 18, Rule 4 of Code of Civil Procedure (for short 'the Code'). On 7.10.2010 petitioner filed Ext.P1, application supported by an affidavit and produced certain documents to be received in evidence stating reason for its non production earlier. It would appear that Advocate Commissioner gave notice for examination of petitioner on 8.10.2010. Ext.P1, application along with documents produced therewith was made available to the Advocate Commissioner. The documents produced along with Ext.P1 were marked in evidence, according to learned counsel for respondents, subject to their objection and approval of the court. It is not disputed that the said documents were referred to in cross- OP(C).No.912/2010-O. 2 examination of petitioner by the respondents. After examination of petitioner was over, commissioner returned the deposition along with documents. On October 26, 2010, Ext.P1 application came up for consideration before learned Addl.Sub Judge and by Ext.P3, order that application was dismissed obviously under the impression that what was intended to be produced in evidence are documents other than documents which were already marked as Exts.A1 to A10. Learned Addl.Sub Judge was not inclined to admit the documents and accordingly dismissed the application observing that it was the duty of the petitioner to show that in spite of due diligence he could not produce those documents (prior to the examination of petitioner as Pw1). Ext.P3 is under challenge in this proceedings. Learned counsel for the petitioner contends that learned Addl.Sub Judge was under a mis-impression that documents sought to be received in evidence are fresh documents and not the documents referred to in the evidence of petitioner as Pw1 OP(C).No.912/2010-O. 3 and it is accordingly that learned Addl.Sub Judge happened to dismiss Ext.P1 application. Reliance is placed on a decision rendered by this Court in Johny v. James (2006(3) KLT 368) where, in para.8 it is stated about the procedure that is to be followed once documents are introduced in evidence. It is stated that endorsement and affixing of seals as mandated by Order 13 and rules thereunder are only a post admission formality and the fact that, that formality has not been performed, when the deposition shows that the document has been admitted, is of no consequence or avail. 2. Learned counsel for the respondents would contend that documents produced along with Ext.P1 are documents on which petitioner relies to prove his case and were required to be produced as per a list along with plaint itself as required under Rule 14(1) of Order 7 of the Code. Hence there was no right for petitioner to produce the said documents at a later point of time, though, it may be within the power of the court to receive even such documents in OP(C).No.912/2010-O. 4 evidence for appropriate reasons. Learned counsel contends that the documents produced along with Ext.P1 application are not such documents as could be produced under Rule 4 of Order 18 of the Code. Learned Addl.Sub Judge, though, was under the impression that Ext.Pl application is in relation to the documents other than already marked by the Advocate Commissioner, was right in holding that there was no justification for belated production of the documents and accordingly dismissing Ext.P1, application. 3. It is not disputed that petitioner was examined through commission on 8.10.2010 while, Ext.P1 application and the documents appended to that application was filed on 7.10.2010. Learned Addl.Sub Judge did not have the opportunity to consider Ext.P1 application before the same and the documents were transmitted to the Advocate Commissioner for recording evidence of petitioner. Though, relevant rules did not prescribe any time limit for filing of the proof affidavit as this Court held in Safiya v. Mammu (2005 OP(C).No.912/2010-O. 5 (4) KLT 223) that was a matter within the realm of discretion of the court. It would have been appropriate if petitioner had filed proof affidavit sufficiently earlier, so that, learned Addl.Sub Judge would have had the opportunity to decide upon acceptability, admissibility and proof of documents produced along with Ext.P1. Unfortunately, that did not happen. Now, the situation is that documents produced along with Ext.P1 has been marked in evidence when petitioner was examined as Pw1 by the Advocate Commissioner and, petitioner has been cross-examined on behalf of respondents with reference to those documents. It is thereafter that Ext.P1 application was considered by learned Addl.Sub Judge on October 26, 2010. On going through Ext.P3 order and, it is fairly not disputed by learned counsel on both sides that the documents produced along with Ext.P1 are documents already marked through Pw1 subject to the objection of respondents and which the Advocate Commissioner stated will be subject to approval by OP(C).No.912/2010-O. 6 the learned Addl.Sub Judge. Clearly, learned Addl.Sub Judge was under the wrong impression that Ext.P1, application referred some other documents which petitioner wanted to newly introduce. In view of that, Ext.P3 order cannot stand and requires reconsideration by the Addl.Sub Judge. 4. It is pointed out by learned counsel for respondents that documents produced along with Ext.P1 and marked subject to approval by the Advocate Commissioner are such documents as could be classified as coming under Rule 14(1) of Order 7 of the Code since petitioner is either basing his case or relying on those documents to prove his claim against respondents. Assuming so, sub rule 3 of Rule 14 of Order 7, gives ample power for the court to receive such documents in evidence even when produced at a later stage. (See Bhanumathi v. Sarvothaman (2010 (4) KLT 908)). If documents produced along with Ext.P1 do not fall in the category of documents referred to in Rule 14(1) of Order 7 and the documents are merely used for disproving the claim OP(C).No.912/2010-O. 7 of respondents or, to discredit the evidence of respondents such documents could be produced along with proof affidavit as provided under Order 4 of Rule 18 of the Code provided that its proof and admissibility will be subject to the order of court concerned. This Court in Dr.K.K.Johny v. K.P.James and another (2006(2) KLJ 586), referring to certain previous decisions, in para.6 stated the manner in which documents are to be received when witness is being examined on Commission. 5. I referred to the decision in Dr.K.K.Johny v. K.P.James and another (supra) only to impress upon learned Addl.Sub Judge as to the manner in which he had to proceed under on considering the objection of respondents as to the admissibility of documents tentatively marked by the Advocate Commissioner (subject to approval of the court). I also leave it to the Addl.Sub Judge to consider whether the said documents come within the category to Rule 14(1) of Order 7 of the Code or, are documents which could be OP(C).No.912/2010-O. 8 produced along with the proof affidavit under Order 4 of Rule 18 of the Code and give his verdict on the acceptability, proof and admissibility of the document as provided under the relevant rules as stated. This petition is allowed and Ext.P3 order is set aside. Ext.P1 application is remitted to the learned Addl.Sub Judge for fresh decision on the acceptability, proof and admissibility of the documents marked as Exts.A1 to A10 in the deposition of Pw1 as provided under law. THOMAS P. JOSEPH, (Judge) Kvs/-