Case: M/s. Rohini Traders Vs. M/s. J.K. Lakshmi Cement Ltd

Brief Facts2) (a) The appellant claims itself to be a sole proprietorship concern working as third party commission agent of theThe appellant claimed a sum of Rs. 12,05,231/as dues to be payable by theas on 31.03.2004. Several requests were made to theto pay the amount due but to no effect. Even after serving a legal notice dated 09.04.2004 to theied with. The appellant filed a suit praying for decree of Rs. 14,21,250/including the principal amount as also interest at the rate of 18 per cent per annum. The suit was contested by theon the ground that it was barred by limitation as also on merits. The claim of the appellant was denied and it was stated that as per the record of thea sum of Rs. 4,62,000/is liable to be paid by the appellant to theOther claims made by the appellant were also denied.(b) During the pendency of the suit, the appellant served a notice dated 05.07.2006 under Order XII Rule 8 of the Code of Civil Procedure, 1908 (in short `the Code) calling upon theto produce and show to the Court on the first date of hearing of the suit the following documents, viz.Purchase Orders pertaining to the order placed by the plaintiff;2. Original record of the TDS Certificate issued by the company to the plaintiff;3. Details of the payment made to the plaintiff;4. Details of the payment received from the party whom order was placed by the plaintiff;5. Copy of the Ledger of the company related to the plaintiff from the Financial Year 1997 to 2004; and6. Copies of the Balance Sheets filed in the Income Tax Department and ROC for the years 1997 toIt appears that the documents were not produced on the first date of hearing. However, during the course of the hearing one Shri R.K. Gupta, General Manager of the) appeared before the Court and produced the documents mentioned at Item Nos.and also stated that Item Nos. 1 and 2 would be available with the appellant. The appellant did not make any endeavor to get the documents produced by theon record and to mark them and exhibited.(d) The trial Court, vide judgment dated 14.03.2007, decreed the suit in favour of the appellant herein for a sum of Rs. 14,21,250/along with the interest at the rate of 9 per cent per annum from the date of institution of the suit till the date of its realization. The trial Court held that thehad failed to explain as to why it had not placed on record its books of accounts and other related papers as asked for in the notice under Order XII Rule 8 of the Code and drew an adverse inference.(e) Feeling aggrieved, thepreferred an appeal before the High Court of Delhi.(f) The High Court, after considering the material on record, came to the finding that the witness of theed in support of the documents produced by him in the Court pursuant to the notice under Order XII Rule 8 of the Code. However, since the documents were neither exhibited nor brought on record, the High Court felt it proper in the interest of justice to restore the suit for further trial with certain directions.(g) An application seeking review of the judgment and order dated 07.11.2008 was filed whereupon the High Courtthe trial Court record andthe testimony offrom which it gathered that the witness had brought all the documents pertaining to the notice dated 05.07.2006 with respect to Item Nos.and the other documents were with the appellant and the witness was also cross examined in respect of the documents so produced. The review application was, therefore, dismissed.(h) Against the said orders, the appellant has preferred these appeals before this Court.

Reasoning: 9) From a reading of the aforesaid provision as also the law settled on this aspect, we are of the view that it was the duty of appellant herein to get the documents produced by theunder Order XII Rule 8 of the Code exhibited in the suit proceedings so that a true and correct finding either way could have been recorded by the trial Court. It is not in dispute that the appellant did not take any step to get those documents marked and exhibited before the trial Court.10) The object of Order XII Rule 8 of the Code is to facilitate the plaintiff or any other party to get a document on record which is not in their possession or in possession of the other party. If a document has been produced then it is the duty of the party who has asked for such production to get it placed on record. If, however, the said document is not placed on record, then adverse inference against the party who has produced the same cannot be drawn, more so, when the party who has produced the said document before the Court has beens that document.11) In our considered opinion, the High Court was right in setting aside the judgment and decree passed by the trial Court and remanding the matter for fresh decision. The directions given by the High Court do not call for any interference.