1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revison No.33 of 2009 M/s Pact Constructions (P) Ltd. …… Revisionist Versus M/s India Glycols Ltd. …… Respondent Hon’ble Tarun Agarwala, J. Heard Sri Kanan Kapur and Sri Y.K.Kapur, the learned counsel for the plaintiff/revisionist and Sri R.C.Upadhyay, the learned counsel for the opposite party. The present civil revision has been filed questioning the veracity and legality of the order dated 19.9.2009 passed by the trial court in Original Suit no. 63 of 2007,whereby the defendant’s application 109-Ga dated 29th August,2009, seeking permission to keep on record an additional evidence, was allowed on payment of cost. The brief facts leading to the filing of the present revision is, that a suit for recovery of the money was filed by the plaintiff in the year 2007. The written statement and the replication was duly filed and, on 13th February,2008, issues were framed on the basis of the pleadings and documents filed by the parties. Soon thereafter, evidence was led and, it is alleged, that the evidence of plaintiff and defendant concluded on 29th August,2009. Upon the conclusion of the cross examination of D.W.-4, namely, Sandeep Kumar Ahuja, Manager (stores) of the defendant/company on 29th August,2009, an application 109-Ga under the signature of the Advocate, which was not supported by an affidavit, was filed seeking permission to take on record the conciliation statement of the plaintiff as evidence. The application stated that during the course of cross-examination, the documents filed on the affidavit, which are on the record, the original of which could not be filed earlier as it was required elsewhere and, therefore, prayed that the original document, namely, the reconciliation 2 statement may be taken on record. This application came up for consideration on 19.9.2009 when it was opposed orally by the plaintiff. It transpires that no written objection to this application was filed. The plaintiff objected to the application of the defendant and submitted that no such evidence could now be brought on record after the conclusion of the evidence, especially, in the light of the provision of Order VIII Rule 1-A of the Code of Civil Procedure, which after the amendment in the year 2002-2004, the provisions attained a status of a mandatory nature and, consequently, in the absence of any cogent reasons being given as well as in the absence as to why the original document could not be filed earlier, the court should not allow such an application to be brought on record in a routine manner. In support of his submission, the learned counsel for the plaintiff placed reliance upon certain judgments, which have been noted in the impugned order and which would be discussed hereinafter. The trial court, after considering the matter, found that there had been a delay in making a request to bring on record the original reconciliation statement. The trial court, further found that the defendant had not given any cogent reasons nor sufficient cause had been shown for condoning the delay. The trial court, however, allowed the application on payment of cost of Rs. 500/- in the interest of justice so that complete justice was done between the parties and further allowed the plaintiff to file such other evidence, oral or documentary. The plaintiff, being aggrieved, has filed the present revision. The learned counsel for the revisionist submitted that the trial court committed a manifest error in allowing the application against the statutory provision of Order VIII Rule 1- A of the Code of Civil Procedure. The learned counsel submitted that the document was not filed alongwith the written 3 statement nor was entered in the list and photo copy of such document came on record through an affidavit of D.W.-4 and that the original document could not be taken on record after the close of the evidence. The learned counsel further submitted that the application 109-Ga was not filed by the defendant but was filed under the signature of the defendant’s counsel, which was not supported by an affidavit and, consequently, no cognizance could be taken on such an application. The learned counsel further submitted that the provision of Order VIII Rule 1-A of the Code of Civil Procedure should not be taken lightly by the court and even though the provision is directory,but in the said circumstances of the case, the provision attains a mandatory stage when no such application could be allowed, especially after the close of the evidence. The learned counsel submitted that the evidence could only be accepted in exceptional cases and not in a routine manner and further submitted that in the light of the finding given by the trial court that there had been a delay in filing the document and no sufficient explanation been given to condone the delay, the application being patiently misconceived should have been rejected in limine. The learned counsel submitted that the trial court had committed an error in allowing the application. In support of his submission, the learned counsel placed reliance upon a decision of the Madras High Court in the matter of Sornam, R.Gowthaman and R.Vennila Vs. P.N. Thevachiammal reported at Manu/TN/0744/ 2005, wherein the court held that “after the closure of the evidence and after hearing the arguments the application to receive documentary evidence and examine the attestor to prove the will was patiently erroneous and could not be allowed.” The learned counsel further placed reliance upon a decision of the Delhi High Court in the matter of Asia Pacific 4 Breweries Vs. Superior Industries, reported at 158(2009) DLT 670,where in the court held that “the application of the plaintiff to file additional evidence under Order VII Rule 14 of C.P.C. read with Section 151 was patently erroneous and could not be allowed. The court held that the purpose of this provision would be defeated if a majority of document are withheld by either of the parties and that documents are sought to be sneaked at the time of evidence. The court held that if new documents are allowed to be filed by one party denovo trial has to be started in response to the documents filed by the said party. The court further found that such document could only be allowed by the court to be filed later on, which were either in the knowledge of the plaintiff or the plaintiff despite due diligence could not procure them but the said document was mentioned in the list of reliance giving information as to in whose power and possession, the document was.” The learned counsel further placed reliance upon a decision of the Supreme Court in Kailash Vs. Nanhku and others, reported in (2005)4 S.C.C. 480, wherein the Supreme Court held that “ the extension of time sought by the defendant under Order VII Rule 1 should not be granted as a matter of routine and merely on the asking especially when the period of 90 days has expired and that the departure from the time schedule should only be allowed to be made under exceptional circumstances occasioned by reasons beyond the control of defendants and such extension was also required in the interest of justice.” Similar view was reiterated by the Supreme Court in the case of R.N.Jadi and Brothers and Ors. Vs. 5 Subhashchandra,reported in A.I.R.2007(6) S.C.C.420, wherein the Supreme Court observed the following: “ A dispensation that makes Order VIII Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order VIII Rule 1 must be adhered to and that only in rare and exceptional cases, the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in Allen Vs. Sir Alfred Mcalpine & Sons(1968) 1 All E.R. 543 that law’s delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?” In the end, the learned counsel placed reliance upon a decision passed by me in the case of Ajay Swaroop Mehrotra Vs. D.N.Raina(Decd.) through L.Rs. and Ors. reported in 2009(1) A.W.C.141,wherein the evidence to produce an expert opinion was allowed at the stage when the matter was not ripe for hearing. The learned counsel relying upon this finding submitted that in the present case the 6 evidence was closed and the matter was ripe for hearing, and therefore, at this belated stage, additional evidence could not have been filed. In the light of the aforesaid decisions, one thing is clear that the provisions of Order VIII Rule 1 and 1-A though couched in the mandatory form is directory in nature being in the domain of the procedural law as is clear from a reading of the judgment of the Supreme Court in the case of Kailash Vs. Nanhku and Ors as well as in the case of R.N.Jadi and Brothers and Ors. Vs. Subhashchandra (supra). For facility the provision of Order VIII Rule 1-A of C.P.C.is extracted hereunder: 1-A. 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. (2) 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. (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. 7 (4) Nothing in this rule shall apply to documents- (a) produced for the cross-examination of the plaintiff’s witnesses, or (b) handed over to a witness merely to refresh his memory. “ This provision is more or less pari materia with the provision of Order VII Rule 14, which applies to the plaintiff. The provision of Order VIII Rule 1-A of the Code of Civil Procedure indicates that where the defendant bases his defence upon a document or relies upon any document, which is not in his possession or in his power, the said defendant is required to enter such document in the list and produce the said document in the court when the written statement is presented by him. Under sub-clause (2) of Order VIII Rule 1-A, if a document is not in possession or power of the defendant, he is required to state clearly as to in whose possession and power, the said document is. Under sub-Rule (3), a document, which ought to be produced in court by the defendant under this Rule but was not produced could only be received in evidence with the leave of the court. The purpose of Order VIII Rule 1-A and the provision of Order VII Rule 14 has been explained with clarity by the Delhi High Court in the matter of Asia Pacific Breweries Vs. Superior Industries (supra) which needs no further elaboration, and the purpose is, that the parties should not be caught unaware and should lead their evidence not only on the basis of the pleadings but also on the basis of the documents which are brought on record and relied upon by the parties in the list so submitted and, that the sole purpose of this provision would stand defeated if a majority of these documents are withheld by one of the parties and are sneaked into at the time of evidence. 8 In Sangram Singh Vs. Election Tribunal, Kotah and Anr. (1955)2 SCR 1, the Supreme Court held that the Code of Procedure has been designed to facilitate justice and further its ends. The Supreme Court held that it was not a penal enactment nor was it designed to trip people and that the construction of the Sections should not be construed in a technical manner and that there has to be a reasonable elasticity of interpretation. The Supreme Court in a catena of decisions have also held that the rules of procedure are handmaid of justice.The language employed by the draftsman may be liberal or stringent but the fact remains that the object of prescribing a procedure is to advance the cause of justice. The Supreme Court in Kailash Vs. Nanhku and Ors. (supra) further held that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation unless compelled by express and specific language of the statute, the provisions of the C.P.C. or any other procedural enactment ought not to be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice. In the light of these decisions and others, the Supreme Court held that the provision of Order VIII Rule 1, though couched in a mandatory language was directory in nature. In the light of the aforesaid, this court finds that the view taken by the Delhi High Court is too narrow and that an liberal approach should be taken. In the present case, the evidence of defendant no.4 was taken on 29th August ,2009. The said defendant was cross examined and upon the closure of the evidence, the application 109-G was filed by the defendant’s counsel to bring on record the document, which was part of the record as annexure 2 to the affidavit of defendant no.4, but the said document was not entered in the list of documents relied upon by the defendants themselves. From the material evidence brought on record before this court, 9 it is clear that the defendant did not choose to enter this document in the list of documents that they had filed at the time of filing of the written statement, the defendant did not choose to rely upon this document while examining in chief their witnesses. It transpires from the impugned order as well as from the contents of the application 109-Ga that D.W.-4 Sandeep Kumar Ahuja was cross examined on the documents, which have been annexed in his affidavit dated 21st May2009. Based on such cross examination, as spelt out by the counsel of the defendant in his application 109-ga, which is nowhere controverted on this aspect, the defendant’s counsel chose to bring such evidence on record, and accordingly, the court found that even though no reasons had been explained by the defendant for bringing this evidence on record at a belated stage, none the less, the trial court allowed the application in the interest of justice, so that substantial justice was done between the parties. In my opinion, the discretion exercised by the trial court was sound and judicial and was not arbitrary. As held earlier, substantial justice is required to be done between the parties. It is not that after the closure of evidence, a party cannot lead additional evidence. Even at the appellate stage, the Code of Civil Procedure provides filing of additional evidence under Order 41 Rule 27. Consequently, the submission of the learned counsel for the plaintiff that the application was moved at a belated stage and after the close of evidence is of no avail. This application was neither belated nor was filed to delay the disposal of the suit. The application was filed immediately after the closure of the evidence of D.W.- 4.Since the said witness was cross examined on some document, which was filed in his affidavit, the application to bring on record, the said evidence in a formal manner was presented by the defendant’s counsel. 10 In my view the plaintiff, after cross-examining the witness and interrogating him on such evidence cannot blow hot and cold simultaneously and question the genuineness of the application of the defendant on the ground that such evidence could not be filed after the close of the evidence or could not question it on the ground that it would amount to a denovo trial. In my view, the submission of the learned counsel is bereft of merit. The court further finds that the trial court, while allowing the said document to be brought on the record as evidence, on payment of cost, has not granted any further opportunity to the defendant. On the other hand, the plaintiff has been given a liberty to file such additional evidence either oral or documentary to be brought on record. In my opinion, the trial court was quite fair in giving such an opportunity to the plaintiff. In the light of the aforesaid, this court further finds that allowing such an application does not cause prejudice to the plaintiff under any circumstances. The discretion exercised by the trial court does not suffer from any error of law. The civil revision consequently fails and is dismissed. In the circumstances of the case there shall be no order as to cost. (Tarun Agarwala, J.) Dated:15.2.2010 Nishant