1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 94 OF 1993 Dagdu Mukinda Shete age about 60 years, occ. agriculture, r/o Yeoli, Tq. Hadgaon, Dist. Nanded. .. APPELLANT VERSUS Harischandra Bapurao Ingole age about 45 years, occ. agriculture, r/o Yeoli, Tq. Hadgaon .. RESPONDENT Mrs. Surekha G. Chincholikar, Advocate for the appellant. Mrs. C.S. Deshmukh, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 12 th October, 2009. ORAL JUDGMENT : 1 This is an appeal by original plaintiff raising exception to the judgment and decree passed in Regular Civil Appeal no. 189/1991 by the 3 rd Additional District Judge, Nanded on 10-7-1992. 2 Respondent / original plaintiff instituted Regular Civil Suit no.125/1988 claiming recovery of amount of Rs.10,586/- from the defendant. According to plaintiff, State Bank of Hyderabad branch Tamsa had sanctioned loan of 2 Rs.5,000/- in favour of the defendant. Defendant availed the loan but failed to repay the same. As such, bank presented suit claiming recovery of the amount being Regular Civil Suit no. 16/1989. Plaintiff remained guarantor to the amount borrowed by the defendant. Bank claimed recovery of amount as against the plaintiff as well as against defendant. Suit was decreed by the trial court and execution application was presented being Regular Darkhast no. 23/1986. It is contended that notices in respect of filing of darkhast were served on plaintiff as well as defendant. Plaintiff being the surety / guarantor for the amount borrowed by the defendant, deposited the amount with the bank. Plaintiff claimed the amount from defendant. However, defendant refused to pay back the amount to the plaintiff. As such, he was constrained to file the suit. 3 Defendant appeared and resisted the suit by filing written statement. He has admitted the story put forth by plaintiff in his plaint in respect of presentation of suit by the State Bank of Hyderabad and plaintiff having stood as gurantor for the loan transaction. Defendant however contended that he has paid an amount of Rs.9,000/- to the plaintiff on 30-6-1987 and he owes balance amount to the tune of Rs.1,445.38/-. Defendant accepted his readiness and willingness to pay the amount. Defendant, however, denied 3 the claim raised by plaintiff for recovery of amount of Rs.10,586/-. 4 Trial court after recording evidence of the parties came to the conclusion that plaintiff has substantiated his case and as such granted decree in his favour. Defendant being aggrieved by the judgment and decree passed by the trial court presented appeal being Regular Civil Appeal no. 189/1991 which came to be heard and disposed of by he 3 rd Additional District Judge, Nanded who was pleased to allow the same partly in view of judgment and decree passed on 10-7-1992. The first appellate court accepted the case put up by defendant in respect of repayment of amount of Rs.9,000/- to the plaintiff on 30-6-1987. The first appellate court relied upon the receipt at exh. 58 placed on record by the defendant and recorded finding that amount of Rs.9,000/- has been repaid by the defendant to the plaintiff. First appellate court held defendant responsible for making payment of rs.1,679/- alongwith interest at the rate of 14% per annum from the date of filing of the suit till realisation. 5 I have perused the judgments recorded by both the courts below. While admitting the appeal, this court found that grounds mentioned in paragraph nos. B, C, D, E, F, I and L involve substantial question of law. 4 Learned counsel for the appellant has pressed into service the question founded on interpretation of Order VIII Rule 1 of the Code of Civil Procedure. Substantial question of law that has been pressed at the time of hearing of appeal is . Whether the court below was justified in permitting the defendant to tender on record the document at exh. 58 namely receipt, in contravention of Rule 1 (3), (4) and (5) of Order VIII of the Code of Civil Procedure ? 6 It transpires on perusal of record that the defendant has tendered his written statement contraverting the contentions raised by plaintiff on 25-10-1989. Issues were settled in the matter on 8-6-1999. In the written statement, it is specifically contended by defendant that he has paid back the amount of Rs.9,000/- to the plaintiff on 30-6-1987 in presence of panchas. In the written statement there is reference to the receipt executed by plaintiff in his favour. However, the receipt is presented on record alongwith application presented by the defendant on 22-8-1991. Defendant presented application requesting the court to permit production of document and on considering the application tendered by defendant, the learned trial Judge has permitted production of document in view of order passed on the same day i.e. on 22-8-1991. Learned counsel for the appellant / original plaintiff 5 has contended that in view of rule 1 (3), (4) and (5) of Order VIII of the Code of Civil Procedure, the trial Judge ought not to have permitted production of the document. Sub Rule 3, 4 and 5 of Rule 1 of Order VIII of the Code of Civil Procedure provide thus : 3 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. 4 If no such list is so annexed or presented, the defendant shall be allowed such further period for the purpose as the Court may think fit. 5 A document which ought to be entered in the list referred to in sub-rule (2), and which is not so entered, shall not, without the leave of the Court, be received in evidence on behalf of the defendant at the hearing of the suit. . Order XIII Rule 1 of the Code of Civil Procedure is in respect of production of documentary evidence. Rule mandates that the parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed alongwith plaint or written statement. However, discretion is invested in the court to receive documentary evidence even at the subsequent stage if no cause is shown to the satisfaction of the court for non-production thereof 6 and the court receiving such evidence is required to record the reasons. Thus, on consideration of the provisions of the Code of Civil Procedure, it is clear that the court is invested with the powers to receive documentary evidence even after settlement of issues. Documents are required to be placed on record with the leave of the court. In the instant matter, it appears that the receipt allegedly executed by the plaintiff is placed on record alongwith application at exh. 55 requesting the court to permit production of the document. Trial court on consideration of the submissions made by the plaintiff permitted production of the receipt. Thus, the court has exercised discretion within the ambit of sub-rule 5 of Rule 1 of Order VIII of the Code of Civil Procedure. Thus, in my opinion, there is no error or irregularity on the part of the trial court in receiving the document namely receipt at exh. 55 on record. Apart from this aspect, it is to be born in mind that the plaintiff has not raised any objection to the production of the document either before the trial court or at the appellate stage. Question in respect of desirability by the trial court to receive documentary evidence on record after settlement of the issues is raised for the first time in this second appeal. In my view, the objection raised by the appellant for the first time in second appeal need not be considered for the reasons set out above. As recorded earlier, the trial court was justified in receiving the documentary 7 evidence placed on record and has exercised powers under Rule 1(5) Order VIII of the Code of Civil Procedure. 7 It is abundantly clear on scrutinising the evidence led by defendant that an amount of Rs.9,000/- has been tendered by him to the plaintiff. The first appellate court has recorded finding of fact on appreciation of evidence placed on record that plaintiff is in receipt of amount of Rs.9,000/- from defendant. In this view of the matter, I am of the view that the first appellate court has not committed any error in modifying the judgment and decree passed by the trial court. Appeal is devoid of merit, hence stands dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. 8 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa94.93.odt