SCA/29091/2007 1/21 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 29091 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SANGHI SPINNERS (INDIA) PVT LTD - Petitioner(s) Versus RAJESH NAGINDAS SHAH - Respondent(s) ========================================================= Appearance : MRS VD NANAVATI for Petitioner(s) : 1, MR CL SONI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 17/06/2008 ORAL JUDGMENT In this petition under Article 227 of the Constitution of India, the petitioner, a private limited company incorporated and registered under the provisions of the Companies Act, 1956, has challenged SCA/29091/2007 2/21 JUDGMENT the decision and order dated 8.8.2007 passed below Exh.188 rejecting the application (Exh.188) preferred by the petitioner seeking permission for production of certain documents mentioned and described in the accompanying list of documents. It is the case of the petitioner that the respondent filed special civil suit No.71/99 praying for a decree for an amount of Rs.3,35,286/- with interest thereon. The said claim was made by respondent (Original plaintiff) against the petitioner company as unpaid amount of the invoices raised against the petitioner company covering the period from 25.11.97 to 11.2.98 for having supplied cotton bales to the petitioner company. From the facts stated by the petitioner, it transpires that after having received process from the Court in connection with the said suit filed by the respondent herein, the petitioner company also preferred counterclaim against the respondent and prayed for a decree for Rs.3,35,286/-. The case of the petitioner company in its counterclaim was to the effect that the order for supplying 500 cotton bales was issued SCA/29091/2007 3/21 JUDGMENT by it in favour of the respondent, however, the respondent had failed to deliver the contracted quantity and as a result of the said non-delivery of goods by the respondent, the petitioner was put to suffer loss as it could not fully, and in certain cases partly, fulfil its export obligations. The petitioner has claimed that in all only 313 cotton bales were delivered out of which, only 50 were delivered as per the agreed schedule and 263 cotton bales were delivered after expiry of time schedule whereas, 180 cotton bales were never supplied. The proceedings in respect of the said special civil suit No.71/99 and counterclaim of the petitioner company are pending before the learned Court at Surendranagar and during pendency of the said proceedings, the petitioner submitted an application being Exh.118 with a prayer that the petitioner may be permitted to produce on record the documents mentioned and described in the list of documents annexed to the said application Exh.188. According to the petitioner, the documents which it seeks to produce on record are invoices of the SCA/29091/2007 4/21 JUDGMENT relevant period, which would justify and substantiate its counterclaim and/or would support its defence in respondent's suit. After considering the said application Exh.188 and the submission of both the sides, the learned Court has rejected the application Exh.188 by observing :- “3. That as per provision contained in Order-13 Rule-1 original documents to be produced at or before the settlement of issue. Here in this case admittedly the suit is in stage of recording evidence of defendant's side. It is also to be noted that in connection with the averments that the documents are received by the defendant from the bank recently, for that there is no evidence produced from which, it can be said that the defendant has received the listed documents from the bank recently. It is also to be noted that, out of the documents listed with the SCA/29091/2007 5/21 JUDGMENT list some documents were produced earlier for that also, there is no clarification made in this application, and to the extent this application is vague. That the reasons shown for the late production are not satisfactory reasons. Again it is to be noted that as per the provision cited earlier, is made mandatory for the party to produce documents relied upon before settlement of issues and the second provision of order-13 is deflected by amendment in Civil Procedure in the year 1999, thereafter amended C.P.C. 2000 (Amended Act 2002 came into force) That as per provision and the application as being vague in regard to production of documents earlier, this application for the production is liable to be rejected. I, therefore, pass following order in the interest of justice.” Being aggrieved by the said order, the petitioner has preferred present petition. SCA/29091/2007 6/21 JUDGMENT Mrs. VD Nanavati appears for the petitioner and Mr. CL Soni appears for the respondent. I have heard the learned counsel for the respective parties. Mrs. Nanavati for the petitioner reiterated the submission made in the application Exh.188 and submitted that the learned Court has seriously erred in disallowing the application and when the petitioner i.e. the opponent in the suit has lodged counterclaim, in the interest of justice, the request made for production of documents deserved to be and ought to have been granted. Mrs. Nanavati further submitted that it was due to present respondent's action that the petitioner herein was put to suffer loss and that has been the case of the petitioner before the learned Court right from the beginning. The documents, which would substantiate and support its case could not be produced earlier, however, the petitioner herein has prayed for permission to produce the documents before the stage of evidence is closed and that therefore, the said permission ought to have been granted. On behalf of the petitioner SCA/29091/2007 7/21 JUDGMENT heavy reliance is placed on the provision contained under Order-7 Rule 14(3) Order-8 Rule-(1A) (3), which read thus:- Order-7, Rule -14(3). “A document, which ought to be produced in Court by the plaintiff when the plaint is presented, ought 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.” Order-8, Rule-1A(3) “(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 SCA/29091/2007 8/21 JUDGMENT the hearing of the suit.” By placing reliance on the said provisions, the learned counsel for the petitioner further submitted that it is permissible for the party to the suit to produce documents at a later stage and if the Court grants permission then, documents can be produced at a later stage also. The petitioner's counsel submitted that in the facts of the case, the learned Court ought to have granted permission to produce the documents, which could not be produced along with its written statement. So as to support her submissions, the petitioner's counsel also relied upon the judgment of the Hon'ble Apex Court reported in AIR 2005 SC 3353 and submitted that the provision under Order-7 and/or Order-8 are enabling provisions and it is within the discretion of the Court to grant permission for production of documents which could not be produced along with the written statement. On the other hand, Mr. Soni vehemently opposed the relief prayed for by the petitioner mainly on the ground of inordinate delay and on the ground that the SCA/29091/2007 9/21 JUDGMENT application is vague and contrary to Order 13 Rule 1 and he submitted that the attempt of present petitioner i.e. original defendant for production of documents at such highly belated stage is not only unjustified but is actuated by intention of delaying the proceedings. He, further, submitted that by any standards the attempt of producing documents at this stage of the proceedings is, by any yardstick, highly belated and in equitable inasmuch as the evidence of the plaintiff i.e. the respondent herein is over and the plaintiff has even concluded the cross examination of petitioner's witness and therefore, such opportunity at this stage is impermissible more so after deletion of Rule 2 of Order 13. Mr. Soni heavily relied upon the provisions under Order-13, Rule-1. Mr. Soni submitted that not only the stage of settlement of issues is over but plaintiff's evidence is also closed and the opponent's witness is also cross examined and that therefore, the reliance placed on the provision contained under Order-7, Rule-14(3) or Order-8, Rule 1(A)(3) is unjustified and untenable. In support of his submissions, Mr. Soni relied upon the judgment of the Hon'ble Apex SCA/29091/2007 10/21 JUDGMENT Court reported in AIR 2002 SC 100. Before considering the order dated 8.8.2007 passed below Exh.188 it is relevant to take into account some of the averments made by present petitioner in its application Exh.188 because it is only on perusal of the averments in the application that one can ascertain whether a case for such belated production of documents is reasonably made out or not. The said application reads, thus:- “Application for permission for the Production of Documents. “ . . . . . . It is case of the defendant in its defence that due to non-supply of ordered cotton materials by the Plaintiff to the defendants Co. in full quantity and not supplying by the Plaintiff, the goods as per time schedule agreed between the parties, the defendant could not fulfill his promises to the Foreign remittances of the therefore the SCA/29091/2007 11/21 JUDGMENT Defendant was compelled to pay or refund the remittances of the Foreign Companies and thereby the Defendant suffered heavy losses. Bank evidences of the remittances and relevant documents to that effect have been given to the Defendant by the Bank etc. recently. So, the defendant due to that reason could not produce them on earlier stages of this suit. Documents mentioned in the list are genuine and they are such which cannot be created after words. . . . . ” (emphasis given) It is also relevant and necessary in view of the facts of the present case, to take note of certain dates and events, while examining the propriety of the order, so as to determine whether the application is hit by delay. This can become clear from the chronology, which is as follows :- (a) The relevant period is from 25.11.97 to 11.2.98. Thus, the suit and counterclaim proceedings, SCA/29091/2007 12/21 JUDGMENT are, by now, almost 10 years old from the date of cause of action. (b) The date of presentation of the plaint is 30.8.99. Thus, even the institution of the suit has, by now, completed almost 9 years. (c) For quite sometime, the written statement on behalf of the present petitioner was not filed and therefore, the right to file the written statement was closed. (d) Thereafter the issues were framed at Exh.17 on 11.9.2000. (e) Subsequently, upon request of present petitioner the learned Court granted permission to file written statement, on payment of cost and then the written statement was filed on 8.1.2001. (f) In view of the written statement, the issues had to be amended and issue No.2 (a) came to be added on SCA/29091/2007 13/21 JUDGMENT 22.1.2001. (g) Subsequently, on 29.6.2001 present petitioner filed amended written statement on 4.7.2002. (h) In view of the counterclaim, issues No.2(b) to 2(d) came to be added on 18.11.2005. (i) The plaintiff's affidavit was filed on 5.4.2006. (j) Thereafter on 7.3.2007, the respondent herein i.e. the plaintiff closed its stage of evidence. (k) Subsequently, on 22.3.2007, 20.4.2007, 19.6.2007 and 12.7.2007 request for adjournment for giving deposition were made on behalf of present petitioner. (l) On 3.8.2007 the deposition of the witnesses of present petitioner was taken on record and the plaintiff i.e. the present respondent commenced cross examination of the witness of present petitioner. On the same date i.e. on 3.8.2007 the SCA/29091/2007 14/21 JUDGMENT application Exh.188 seeking production of document came to be filed by present petitioner. It appears that in view of the said application Exh.188, the cross examination of the present petitioner's witness was deferred and the respondent i.e. original plaintiff filed its reply / objections Exh.189 and on 8.8.2007, the learned Court disallowed the application Exh.188 and on 8.8.2007 during the cross examination, the petitioner requested for time and then after almost 3 months the petitioner filed present petition on 21.11.2007. The aforesaid chronology of events demonstrates that the subject application Exh.188 has been submitted after almost 8 years since the institution of the suit and also much after the stage of settlement of issues. The aforesaid chronology of events also demonstrates the delay and negligence on the part of the present petitioner right from the initial stage inasmuch as until the stage of filing written SCA/29091/2007 15/21 JUDGMENT statement was closed by the Court, the petitioner had not cared to file the written statement and then, the petitioner filed written statement in January, 2001 i.e. after almost 2 years since the institution of the suit and consumed another 5 months in presenting the counterclaim inasmuch as the counter claim came to be filed in June 2001. As a result of such delay, on two occasions, after settlement of issues, the learned Court was required to amend the issues i.e. 22.1.2001 and 18.11.2005. It is also pertinent to note that even at this stage the petitioner did not care to produce the documents which it now seeks to produce. The aforesaid chronology also demonstrates that the evidence of original plaintiff is closed since March 2007 and hence, the propriety of the impugned order below Exh.188 is required to be examined in light of the aforesaid dates and events. SCA/29091/2007 16/21 JUDGMENT In this regard, it is also pertinent to note that the scope of interference by this Court, in exercise of jurisdiction under Article 227 of the Constitution of India with a discretionary and interlocutory order is extremely limited. All that this Court could examine is as to whether any manifest and palpable error in exercising jurisdiction has been committed by the Court. If the application Exh.188 is taken into account, it transpires that the respondent herein i.e. the original plaintiff appears to be justified in contending that though, it is mentioned in the application that the documents were given by the bank to the petitioner recently, it does not satisfactorily explain as to how could it be that even the copies of the purchase order and/or sales invoices or the correspondences etc. were not in the possession and custody of the petitioner and/or why the same were not obtained from bank before or while filing the written statement and exactly when the same were given to the opponent by the bank. It is pertinent that in the application the petitioner has SCA/29091/2007 17/21 JUDGMENT vaguely stated that the documents were received from the bank “recently” but conveniently neither the date of receipt is mentioned nor material supporting such statement is produced. In short, any of the relevant and necessary circumstances are not mentioned or explained in the application from which the learned Court could have satisfied itself and could have come to the conclusion that the opponent i.e. the petitioner was unable to produce the documents at the relevant point of time despite due diligence and best efforts and for good and sufficient reasons. Unless, the Court is satisfied that (1) the party to the proceedings was, despite due diligence and best efforts, unable to produce the documents at the material point of time, (2) it had good and strong reasons and justification for not producing the documents at the material point of time, (3) it has approached the court with a request to produce the documents at the first available opportunity and immediately after obtaining the same and without any SCA/29091/2007 18/21 JUDGMENT further delay (4) and has satisfactorily explained the delay, the learned Court would be justified in not granting the request for production of the documents at a subsequent or later stage. So far as the reference to the provision under Order-7 and Order-8 are concerned, the Hon'ble Apex Court has held that the said provisions are enabling provisions and confers discretion on the Court to permit production of documents at a later stage, however, the Hon'ble Apex Court has not construed the said provisions to mean that even if the party seeking belated production of documents does not make out a strong case substantiated by good and legally sustainable reasons while seeking production of documents at a later stage, then also the learned court should grant permission without considering the objections or interests of the other side. In the opinion of this court neither the provisions in sub- rule (2) of Rule (14) of order 7 (in case of plaintiff) or sub-rule (2) of rule (1A) of order 8 (in case of defendant) permit such reading or meaning. Order 7 Rule 14(2) and Order 8 Rule 1A(2), SCA/29091/2007 19/21 JUDGMENT in case of plaintiff and respondent respectively require that if the documents sought to be relied upon are not in possession then it should be, wherever possible, stated in whose possession such documents are. In present case, if the documents were in possession of the Bank, as is now claimed, then either in the written statement or in the list of documents the reference, with such clarification and statement / explanation, could have been and ought to have been made. However, in present case, the defendant – opponent does not appear to have stated in the written statement / counterclaim that for its defence it relies on and its counterclaim is based on particular documents, but the same being in possession of Bank, are not produced. It is not the case of the petitioner here that it had so stated in the written statement or list of documents, and such statement seems to have been made for the first time in Exh.188 application. Thus, the submission of the respondent – original plaintiff that it would cause injustice to it if at this stage the request of petitioner is granted cannot be over looked and the learned trial court appears to be justified in SCA/29091/2007 20/21 JUDGMENT disallowing the application Exh.188. In present case, it is clear from the order that the explanation given by the petitioner did not satisfy the learned trial court and therefore, it has not allowed such inordinately delayed production of documents and in view of this court, even at this stage the petitioner has not been able to provide the missing links and has not satisfactorily explained how, without the documents or even without the copies of documents, the petitioner could frame its counterclaim in June, 2001 and even at that stage the petitioner did not produce the documents on which the counterclaim was based. This court, in a petition under Article 227 of the Constitution of India, cannot substitute its satisfaction or views for that of the learned trial court. Thus, on overall consideration of all relevant facts and circumstances the reason given by the court and the order passed by the court cannot be said to be perverse or wrong and in arbitrary exercise of jurisdiction and discretion. In view of this court, SCA/29091/2007 21/21 JUDGMENT the petitioner has failed to make out any good reason or strong case of error of jurisdiction so as to exercise power under Article 227 of the Constitution of India and to interfere with the impugned order. The petition, therefore, does not deserve to be entertained and hence, the petition is not entertained. Notice discharged. No order as to costs. [K.M.Thaker, J.] kdc