1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.7545 OF 2008 M/s Rahul Transport Pvt. Ltd., through its General Manager Mr. Vitthal Namdeorao Zambre, age 71 yrs, Occ. Service, Add: Head Office at Parishram Bhawan, Morshi road, Amravati, Tq. & Dist. Amravati. Petitioner (Orig. plaintiff.) V E R S U S 1. Ghanshyam Vijay Garge, age 34 yrs, Occ. Service r/o 60, Shankar Nagar, Raja Peth, Amravati, Petition is dismissed as against Tq. & Dist. Amravati. .... R No.1 as per order dt 7.8.09. 2. Smt. Vidya w/o Anil Shah, age 47 yrs, Occ. Household. 3. Shradha d/o Anil Shah, age 22 yrs, Occ. Education. 4. Mona d/o Anil Shah age 19 yrs, Occ. Education, R-2 to 4, r/o Ratna Apartment, Near Vishal Plastics, Baliram Peth, Jalgaon, Tq. & Dist. Jalgaon. 5. Gangadhar Krushnaji Gund-Patil,-- Petition is dismissed as against age 55 yrs, Occ. Service, R No.5 as per order dt 7.8.09. R/o 11-A, Shivprabhu Colony, Chitod Road, Dhule. Tq & Dist. Dhule. Respondents (Defendants) 2 Shri P.B. Patil, Advocate for the petitioner. Shri S.P. Deshmukh Advocate for the respondent no.2 R-3 and 4 served. Petition dismissed as against R-1 and 5. CORAM : R. M. BORDE, J. DATE : 16 TH DECEMBER, 2009. ORAL JUDGMENT :- 1. Heard Shri Patil, counsel appearing for the petitioner and Shri Deshmukh counsel appearing for the respondent no.2. Rule. With the consent of the parties matter is taken up for final disposal at admission stage. 2. An application tendered by the petitioner/original plaintiff seeking permission to court to place on record the documents came to be rejected by the trial court in view of the order passed on 28.08.2008. Said order passed by the trial court during the continuance of the suit is subject matter of challenge in this petition. The plaintiff-petitioner instituted a suit claiming recovery of amount of Rs.19,76,714/- from the defendant. The contentions raised by the plaintiff in the plaint has been controverted by the defendants on the basis of pleadings raised by them. The trial court framed issues and suit is at the stage of recording of the evidence. It is stated that one of the witness has been examined on behalf of the plaintiff and after completing the cross examination of the witness, the plaintiff realized that documents on which reliance is sought to be placed by him and those 3 documents which are referred in schedule ‘A’ of the plaint have not been placed on record by the concerned Advocate. An application was therefore presented at EXh.60 requesting the Court to permit the plaintiff to place on record relevant documents. It is noted in the application that the plaintiff was under impression that his earlier advocate has filed the documents on record along with the plaint however after completion of the cross examination of one of the witness of the plaintiff, it was realized that such documents have not been placed on record. The lapse has occurred due to change in counsel by the plaintiff. The lapse is committed by his earlier advocate and same was realized at a subsequent stage. It is the contention of the plaintiff that documents on which reliance is placed are referred to in the plaint and those are listed in schedule A annexed to the plaint. It is further contended that no prejudice is likely to cause to the defendant as evidence of the plaintiff is yet not over. Trial court, however, after considering say presented by the defendants rejected application in view of the order below exh.60 on 28.08.2008. The application is opposed by the defendant on the ground that same is presented at belated stage. According to the defendant plaintiff cannot be permitted to produce documents after settlement of issues. It is also contended that cause shown in the petition is not proper and court shall not exercise discretion in favour of the plaintiff. 4 3. I have perused the application as well as impugned order passed by the trial court and heard arguments advanced by the respective counsel appearing for the parties. 4. It is to be noted that one of the witness has been examined on behalf of the plaintiff, who has admitted in cross examination that documents noted in schedule ‘A’ are not placed on record. Fact however remains that documents on which reliance is sought to be placed are referred in the plaint as well as those have been described in schedule A annexed to the plaint. It cannot be said that any prejudice would be caused to defendants or that some new case is being made out by the plaintiff. It is also to be noted that only examination of one witness of the plaintiff was over and in order to prove the documents, the plaintiff would be required to lead evidence of the witnesses and defendants will have opportunity to rebut or contradict the contentions of the plaintiff. Even plaintiff can exercise option of making request to trial Court for cross examination of the witness already examined by the plaintiff in relation to the documents in question. If such a request is made, trial court is competent to take appropriate decision in accordance with the law. To my mind, no prejudice is likely to be caused to the defendants by permitting the plaintiff to place on record the documents which are already referred to in the plaint. The counsel appearing for the petitioner seeks leave 5 to place reliance on the judgment in the matter of Billa Jagan Mohan Reddy Vs. Billa Sanjeeva Reddy reported in 1994 (4) SCC page 659. It is noted in paragraph No.4 of judgment :- It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27 Civil Procedure Code the appellate court would receive the documents and consider their effect thereof. When such is the position, when the documents are sought to be produced in the trial court, before the arguments are completed, normally they may be received ; an opportunity given to prove them and rebuttal if any and their relevance and effect they may have, be considered in deciding the issues arising in the controversy. Under these circumstances, the trial court was not justified in refusing to condone the delay and to receive the documents. The High Court also committed the same error in not considering the effect in this behalf in the right perspective. The orders are accordingly set aside and the delay in filing the documents is condoned. The trial court is directed to receive the documents, give an opportunity to the parties to prove the documents and if necessary, opportunity to the respondent to rebut the same and then dispose of the reference according to law. 6 5. The Apex Court while dealing with the matter has recorded that in order to meet the ends of justice, parties can be permitted to place on record documents even at appellate stage. If such is the position and when the documents, as in the instant case are sought to be produced before the trial court, and also further that, documents which are sought to be produced before trial court at a stage when one witness on behalf of plaintiff is examined, in my opinion, no prejudice will be caused to the defendant. The defendant will have opportunity to rebut or contradict the case of plaintiff by leading rebuttal evidence. 6. The counsel for the respondent seeks leave to place reliance on the judgment of the Apex Court in the matter Madanlal Vs. Shyamlal reported in AIR 2002 S.C. 100. It is contended by the counsel appearing for the respondent that in similar set of facts when trial court refused to accord permission to the defendant to place on record documents and such order passed by the trial court was upheld by the appellate court as well as by the Apex Court. I have perused the judgment cited at Bar. In the reported judgment, the court had not permitted production of the documents, as these documents were not referred in the pleadings or evidence and that was precisely good reason for refusing the permission to the defendants to place on record the documents. In the instant matter documents sought to be 7 placed on record have been referred in the plaint and those have been specifically described in schedule A of the plaint. In these circumstances, I am of the view that the plaintiff can be permitted to place on record documents and rejection of the request by the trial court is improper. In view of the matter, writ petition by the petitioner - original plaintiff deserves to be allowed and same is accordingly allowed. Order passed by the 3rd Jt. Civil Judge (S.D.) Dhule, below Exh.60 in Spl.C.S.No.99/2003 dated 28.08.2008 is quashed and set aside. Plaintiff shall be permitted to place on record of case documents in question. The defendants shall have fair opportunity to rebut/contradict the contentions raised by the plaintiff by cross examining witnesses or by leading rebuttal evidence. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. 7. In view of disposal of the writ petition, pending civil application, if any, does not survive and stands disposed off. ( R. M. BORDE, J. ) ..... aaa/7545.08