Avadurthi Rajamalla and Another vs Avardurthi Hanumanthu and Another

This revision has been filed against the order dated 8-9-1997 in LA.No.171 of 1997 in O.S.No.86 of 1990 on the file of the District Munsif, Yellandu.

Mr. Prasad, learned Counsel for the petitioners, submits that the petitioners who are the defendants in the suit, filed an application before the trial Court under Order 13, Rules 1 and 2 C.P.C. to receive the xerox copies of stamp agreement dated 11-12-1982 and paper agreement dated 27-9-1987 by condoning the delay in filing the same and the trial Court illegally rejected the application.

It is submitted that the original suit has been filed in the year 1990 for ejectment of the plaintiffs (sic defendant) from the suit property, which is said to be ''barber'' shop. In the affidavit filed in support of the application before the trial Court, it is stated that the documents being filed are xerox copies which were handed over to petitioner''s brother-in-law by name Jampala Satyam for safe custody, and he had misplaced them all these years, and the same could not be filed earlier as they were not traced, but those documents were mentioned in the evidence of the defendants. These documents are traced yesterday by the petitioners'' brother-in-law after hectic search and they were handed over to the petitioners for filing in the Court. The delay in filing the documents is not intentional. As such the documents should be received in evidence by condoning the delay.

In the counter-affidavit, the plea of the petitioners is resisted and it is stated that the respondent-plaintiff concluded his evidence by reserving his right of rebuttal of evidence. The petitioners took prolonged time and many witnesses were examined. It is also stated that there is no proof of existence of originals or the evidence of the said documents in possession with any person. The petitioners have not established the custody of the originals. The said xerox copies are nothing but false documents, and in due course of the trial, there is no evidence on behalf of both the parties about the custody of the so-called agreements dated 11-12-1982 and 27-9-1997. The petitioners are dragging on the case and the purpose is to protract the trial.

The trial Court in Para 5 of its order stated that after completion of the evidence of the respondents/plaintiffs, the petitioners started their ''evidence and took nearly one year time for adducing evidence on their behalf and evidence was closed and the suit is at the stage of arguments. The petitioners have filed the documents at the belated stage and the said documents are admittedly xerox copies of the documents. The petitioners have not stated in whose custody the originals of the said documents are and there is no allegation that the respondents-plaintiffs are in possession of the originals of the said documents. It merely states that the documents filed along with the petition were in possession of his brother-in-law by name Jampala Satyam all these years and recently he traced and handed over to him. Admittedly, the said Jampala Satyam was examined as DW8 and he nowhere stated in his evidence that the xerox copies filed along with the petition were in his possession. He merely stated that the first respondent-plaintiff executed a document and kept with him- It is farther stated that the suit is filed in the year 1990 and hence nearly seven years'' time has passed to complete the trial of the suit. Neither the petitioner nor DW8 stated in their evidence that the documents are kept with DW8 and they are misplaced. For the first time the petitioner stated that the documents filed along with the petition were in the custody of DW8 and recently he handed over the same to him. The custody of the xerox copies of the documents with DW8 has not been explained.

The submission of Mr. J.V. Prasad that the trial Court had illegally rejected the application to receive the xerox copies of the documents on the ground that mere delay in filing the documents is not a ground to reject it, but if the documents are filed in course for advancement of justice, the same should be accepted.

The learned Counsel relies on the Judgment in Gopidi Naga Reddy v. K. Sriram 1976 (2) AWR 29. In Para 10 of the Judgment, the learned Judge discussed the scope of Order 13, Rule 2, which is as follows :

"When Rule 2, requires that "good cause should be shown to the satisfaction of the I Court" it implies that the party producing the documents at such subsequent stage should satisfy the Court that the documents tendered are above suspicion. Rule 2, has been enacted to prevent fraud by the late production of suspicious documents. Mere delay in tendering documents is not sufficient to refuse permission. What is important is whether the document so tendered is above suspicion or not. Duty is cast on the Court to apply its mind to find out even though in a summary manner whether the document is prima facie a genuine one or not. It cannot be argued that while dealing with Order 13, Rule 2, Civil procedure Code, the Court should look no further than to decide whether the explanation as to the delay in filing the document is satisfactory or not. The proper understanding of the requirement under Rule 2, that good cause is shown is whether there is no ground for believing that the document tendered has been manufactured. If the Court comes to the conclusion, in the given circumstances of the case, that the documents are above suspicion, it is incumbent on the Court to receive the, of course, subject to proof, in order to advance the cause of justice. It would be improper exercise of its discretion, if the Court rejects the document on the mere ground that they are produced too late even though the Court has no reason to believe that it is suspicious document."

Order 13, Rules land 2 of the CPC reads as under :

"1(1) The parties or their pleaders shall produce (at or before the settlement of issues), all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.

(2) The Court shall receive the documents so produced; Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

2(1) No documentary evidence in the possession or power of any party which should have been, but has not been, produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing.

(2) Nothing in sub-rule (1) shall apply to documents,--

(a) produced for the cross-examination of the witnesses of the other party, or

(b) handed over to a witness merely to refresh his memory."

The learned Judge has observed that Rule 2 has been enacted to prevent fraud by the late production of suspicious documents, that mere delay in tendering documents is not sufficient to refuse permission. He further observed, that what is important is whether the document so tendered is above suspicion or not. Duty is cast on the Court to apply its mind to find out even though in a summary manner whether the document is prima facie a genuine one or not. It cannot be argued that while dealing with Order 13, Rule 2, C.P.C., the Court should look no further than to decide whether the explanation as to the -delay in filing the document is satisfactory or not. The proper understanding of the requirement under Rule 2, is that good cause is shown is whether there is no ground for believing that the document tendered has been manufactured. If the Court comes to the conclusion, in the given circumstances of the case that the documents are above suspicion, it is incumbent on the Court to receive them, of course, subject to proof, in order to advance the cause of justice.

The Order 13, Rule 2, does not reflect the view expressed by the learned Judge for the primary consideration is that no documentary evidence in the possession or power of any party which should have been, but has not been, produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing.

In interpreting Rule 2(1) the consideration to receive the documents subsequently is that the document should have been in possession or power of any party which should have been filed, but has not been filed, to produce at any subsequent stage of the proceedings, the cause of non-production of document should be stated to the satisfaction of the Court and the Court shall record its reasoning while accepting the same. The Court need not embark on any other enquiry at that stage. The view expressed by the learned Judge would be doing violence to the language used in Order 13, Rule 1 and 2.

With due respect to my learned Brother Punnayya, J., I cannot subscribe to '' the said view. Any document that has been admitted at a belated stage during the course of the proceeding in a suit has to be viewed in relation to the pre-condition laid down in the said Rule i.e. the delay should be explained to the satisfaction of the Court.

In this case the trial Court has given sound reasoning for rejection of the application of the petitioner to receive the documents in evidence. There is no illegality or error of jurisdiction in the order passed by the Court below on the facts and circumstances thereon. The C.R.P. is devoid of merits and it is accordingly dismissed. No costs.