1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 736 of 1989 IN SPECIAL SUIT NO.4 OF 1988 The State of Gujarat (to be served through the Secretary, (I.D.), Government of Gujarat. 2. The Executive Engineer, Daman Ganga Project No.1. ...Appellants (Original defendants) v/s. M/s. Arun Construction Company ....Respondent (original plaintiff) WITH FIRST APPEAL NO. 53 OF 1996 IN SPECIAL CIVIL SUIT NO. 4 of 1988 M/s. Arun Construction Company ...Appellants (orig. plaintiffs) v/s. State of Gujarat & anr. ...Respondents (orig. defendants) Smt. S.V.Sonawane-AGP for the appellant in FA 736/89 & for resps.1 & 2 in FA 53/96. Mr. M.P.Vashi, advocate for respondent in FA 736/89 & appellants in FA 318/93 & 53/96. 2 CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ DATED:- JUNE 11, 2010 P.C.(A.M.Khanwilkar,J) These cross Appeals take exception to the Judgment and decree dated 10th April, 1989 passed by the Civil Judge, Dadra & Nagar Haveli at Silvasa in Special Civil Suit NO. 4/1988. For the sake of convenience the parties are referred to as per their description in the suit. 2. The Plaintiffs filed Suit for recovery of Rs. 1,23,30,261.90. The said suit has been partly decreed by the trial Court in the following terms:- “1. The Plaintiff’s suit is hereby partly decreed with proportionate costs. 2. The Defendants to pay Rs. 8,09,406.09 to the Plaintiff towards extra work done and also towards overhead charges-cum-profit. 3. The Defendants to pay interest at the rate of 18% per annum on Rs. 7,60,433.29 from 12th January 1987 till 9th April, 1989. 4. The decretal amount shall carry interest at the rate of 18 per cent per annum from the date of decree till its realization. 3 5. The decree be drawn accordingly. 10th April, 1989 (sd.)I.K. JAIN, Civil Judge, Dadra and Nagar Haveli, Silvasa.” The suit was founded on the assertion that the Plaintiffs were awarded contract by the defendants of providing and laying RIP-RAP system on R.B.E.D. Between Channel 1726-35 right and of right bank earth dam. However, in due course the Defendants changed the plans and called upon the Plaintiffs to undertake the work as per the modified plans which was approved by the Expert Committee. According to the Plaintiffs, the instructions given to the Plaintiffs on the basis of modified plan required, the Plaintiffs to carry out extra work. The Plaintiffs completed the extra work by end of December 1984. Thereafter, the Plaintiffs called upon the Defendants to pay additional amount for the modified work undertaken by them. According to the Plaintiffs, they were entitled atleast for an amount of Rs. 77,10,036/- for the extra work carried out by them at the behest of panel of experts and approved sanctioned by the Department and the Government. The Plaintiffs also claimed Rs. 19,47,045/- for the extra loading bump, extra work done by them. The Plaintiffs further prayed for Rs. 11,86,286/- towards extra item work due to extension of time 4 limit which was approved and sanctioned by the Government. As aforesaid, the trial Court decreed the suit partly by directing the Defendants to pay Rs. 8,09,406.09 to the Plaintiffs towards extra work done and also towards overhead charges-cum-profit and further interest at the rate of 18%per annum on the principal amount of Rs. 7,60,433.29 from 12th January, 1987 till 9th April, 1989. This relief has been granted primarily by relying on the documentary evidence produced by the parties including the Defendants before the trial Court. It is relevant to notice that the Defendants produced the concerned documents in response to the Application filed by the Plaintiffs under Order-11 Rule-12 read with Section 151 of Civil Procedure Code for production of the said documents. When the defendants produced the said documents pursuant to the said Application, the Plaintiffs stated before the Court that they would have no objection to exhibit the said documents. It is on that basis the concerned documents including the ones produced by the Defendants came to be exhibited. Admittedly, no oral evidence was produced by either side. The trial Court proceeded to decide the matter on the basis of the exhibited documents. 3. After hearing Counsel for the parties, the principal question that needs to be addressed and which in our opinion would go to the root of the matter is whether the documents relied upon by the trial Court can be taken into account 5 notwithstanding the fact that the contents thereof have not been proved at all. It is well established position that the fact that the document is exhibited, by itself, would not mean that even the contents of the documents have been duly proved. In the present case, as has been mentioned earlier which is a common ground, documents produced by the Defendants were in response to the Application filed by the Plaintiffs under Order-XI Rule 12 read with Section 151 of the Civil Procedure Code. The said application was for discovery and inspection of the documents referred to in the said Application filed by the Plaintiffs. In compliance of the said Application, if the Defendants had produced the documents on record, that does not mean that the contents of the documents have been admitted by the Defendants. It would have been a different matter if the Plaintiffs were to file Application under Order-12 and call upon the Defendants to admit the documents which have come on record. Admittedly, no such application was filed. Moreover, the documents produced by the Defendants alongwith Exhibit 12 which was in response to the Application filed by the Plaintiffs under Order XI Rule 12 were interdepartmental correspondence. It was not communication addressed to the Plaintiffs or of having accepted the claim of the Plaintiffs in any manner. Notably, there is nothing on record to indicate that the Defendants have admitted the contents of the said documents. All that had happened, is that, the Defendants merely 6 produced the said documents because they were called upon to do so in terms of Application preferred by the Plaintiffs under Order-XI Rule-12 of Civil Procedure Code. That will be of no avail and certainly cannot be the basis to hold that the Defendants have admitted the contents of the said documents as such. If it is so, none of the documents which have come on record can be said to have been proved in evidence, much less the contents thereof. In that view of the matter, there was no legal evidence on record which could be the basis to answer the claim of the Plaintiffs. 4. To get over this position, it was contended that the parties agreed before the trial Court and invited the impugned decision on the basis of the documents on record. It is not possible to countenance this submission. The trial Court could have reckoned the concerned documents and more particularly the contents thereof only if the same were to be duly proved. In absence of proof of the contents of the concerned documents, it was not open to the trial Court to rely upon the same and to authoritatively answer the issue that arose for its consideration in the suit. Our attention has been rightly invited to the decision of the Apex Court in the case of Narmada Devi Gupta v/s. Virendra Kumar Jain & anr. Reported in (2003) 8 SCC 745(also see in the case of Life Insurance Corporation of India v/s. Rampal Singh Bisan reported in 2010 7 (4) SCC 491). The Apex Court has restated the settled legal position about the production and marking of document as exhibit is not enough. The execution of the documents has to be produced by admissible evidence. The Apex Court has also noted that if the documents produced are admitted by the signatories thereto and then marked as exhibits, no further burden to lead additional evidence to prove the writing and its execution would arise. In the present case, we have already noticed that the Defendants have merely produced the documents which have been relied by the trial Court. That was in response to the Application under Order-11 Rule 12 filed by the Plaintiffs calling upon the Defendants and for not admitting the contents of the concerned documents as envisaged by Order-12 of Civil Procedure code. Thus understood, mere exhibition of the document in question will be of no avail and that alone could not be the basis to rely on the contents thereof to answer the matter in issue, as done by the trial Court. As aforesaid, besides producing the documentary evidence, both parties did not adduce oral evidence. For the view we have taken, it would necessarily follow that there was no legal evidence on record on the basis of which the matter in issue could have been answered either way and in any case to hold that the same were duly proved by the Plaintiffs. On this count alone, the Appeal should succeed. 8 5. However, as we find merits in the submission that in the present case both the parties allowed the trial Court to proceed only on the basis of the documents produced and exhibited by the Court, to do substantial justice to the parties, we think it appropriate to set aside the impugned Judgment and decree and instead relegate the parties before the trial court for fresh trial in accordance with law from the stage of framing of issues. 6. In other words, both the parties would be free to produce witness to prove the contents of the documents which they may want to rely in support of their respective case. 7. We are conscious of the fact that the Defendants have raised issue regarding suit being barred by limitation. Since we are remanding the matter to the trial Court for fresh trial of the case, in our opinion, in the fact situation of the present case as the issue of limitation being a mixed question of fact and law, even the said issue will have to be tried afresh by the trial Court in accordance with law. For that reason, we refrain from expressing any opinion with regard to the issue of limitation though the parties canvassed their respective arguments in that behalf. 9 8. Accordingly, these Appeals would partly succeed. We proceed to pass the following order: (i) The impugned Judgment and decree dated 10th April, 1989 passed by the Civil Judge, Dadra & Nagar Haveli at Silvasa in Special Civil Suit No. 4/1988 is set aside. (ii) Instead, the suit is restored to the file of the trial Court to be proceeded afresh in accordance with law from the stage of framing of issues. (iii) The parties would be free to examine witnesses in support of their respective stand and/or to prove the contents of the documents which have already been exhibited. (iv) We leave the question of restitution of the decretal amount already withdrawn by the Plaintiffs during the pendency of this Appeal to be considered by the trial Court on its own merits in accordance with law. (v) The parties shall appear before the trial Court on July 19, 2010. (vi) Office to ensure that the original record is returned to the trial Court expeditiously and in any case before July 15, 2010, if necessary by deputing special messenger. (A.A.SAYED, J) (A.M.KHANWILKAR, J)