1 ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7304 OF 2009 M/s. Sawant Food Products Ltd. .. Petitioner (Org. Defendant ) Vs Shri Birudeo Jagannath Gadhale, (since deceased through L.Rs.) 1A. Smt. Nausabai Birudev Gadhale & Ors. .. Respondents (Org. Plaintiffs ) -- Shri Sachin S. Tigade for Petitioner. Shri Sandesh D. Patil for Respondent Nos.1A to 1C. -- CORAM : A.S.OKA, J. DATE : 4TH MARCH, 2010 P.C: . Heard learned counsel appearing for the parties. Considering the narrow controversy involved, the Petition is taken up for final disposal at the admission stage. 2. The Petitioner is the Original Defendant and the Respondents are the Original Plaintiffs. The Respondents- Plaintiffs have filed a money suit for recovery of a sum of Rs.6,49,600/-. The suit was for recovery of price of the goods allegedly sold and supplied by the Respondents to the Petitioner. There were two applications made by the Petitioner after the 2 evidence of the Respondents was closed. An application at Exhibit-59 was made seeking permission to produce four documents. An application at Exhibit-56 was made seeking recall of the witness examined by the Respondents for cross-examination on the basis of the documents which are sought to be produced along with the application at Exhibit-59. By separate orders passed by the Trial Court, the application at Exhibit-56 has been rejected and the application at Exhibit-59 has been partly allowed by permitting production of documents at Sr. Nos. 3 and 4. Thus, production of documents at Sr. Nos.1 and 2 was not allowed. 3. Learned counsel appearing for the Petitioner submitted that the documents sought to be produced by the Petitioner are relevant to the controversy involved in the suit. He submitted that delay in filing the documents has been explained in the application at Exhibit-59. He submitted that the said application ought to have been allowed. He submitted that as the evidence of the witness of the Respondents/Plaintiffs has already been recorded, the Petitioner will have to cross-examine the said witness on the said document. The application at Exhibit-56 ought to have been allowed. The learned counsel appearing for the Respondents opposed the Petition by submitting that the application for production of documents was belatedly made. Notwithstanding the said fact, the Trial Court has permitted production of two documents and for the reasons recorded, the other two documents are not permitted to be produced. He submitted that if production of documents is allowed, it will cause prejudice 3 to the Respondents. He submitted that at this stage, the witness examined by the Respondents cannot be recalled. 4. I have carefully considered the submissions. The application at Exhibit-59 records that the Petitioner has not produced the documents earlier as the same were not traceable despite due diligence. A prayer was made for seeking permission to produce four documents. First document is Cash Voucher dated 17th September, 2001 allegedly issued by the Respondents and the second document is a Debit Voucher dated 21st November, 2001 allegedly issued by the Respondents. The production of other two documents at Sr. Nos.3 and 4 in the list of documents has been allowed. While allowing the production of documents at Sr. Nos.3 and 4, the learned Judge has observed that there is no reference to the first two documents in the Written Statement. It is settled law that in the pleadings, the evidence need not be pleaded. Notwithstanding the amended provisions of the Code of Civil Procedure, 1908, the Trial Court allowed production of the documents at Sr. Nos.3 and 4. There was no reason to deny permission to produce other two documents as the reasons assigned for non-production of the documents at an earlier stage were the same. The application at Exhibit-59 ought to have been allowed in its entirety. 5. The Petitioner will have to prove the documents which are sought to be permitted to be produced. As of today, the petitioner has not proved the said documents and the prayer for recalling of the witness of the 4 Respondents is premature. The application for recalling the witness of the Respondents has been rejected when the said four documents were not on record. If the law permits and exigency demands, the Petitioner can always file a fresh application at an appropriate stage for recalling of the witness of the Respondent. However, at this stage, no interference is called for with the orders passed below application at Exhibit-56. Hence, the Petition is disposed of by passing the following order. (a) Subject to what is observed above, the order dated 13th April, 2009 passed below application at Exhibit-56 is confirmed. (b) The order passed below application at Exhibit-59 is modified and the Petitioner is permitted to produce all the four documents at Sr. Nos.1 to 4 in the list of documents at Exhibit-60. (c) What is permitted under the order on the application at Exhibit-59 is also the production of documents and the Petitioner will have to prove those documents. As the production of documents has been permitted, after the evidence of the Respondents is closed, it will be open for the Respondents/Plaintiffs to apply to the Trial Court for recalling their witnesses or for leading 5 further evidence for dealing with the said documents. (d) The Writ Petition is partly allowed in above terms. (A.S.OKA, J)