Haji Ghulam Mohammad vs State Bank of India, Branch Srinagar

M.Y. Kawoosa, J.—This Civil Revision pertains to the year 1985. Counsel for the petitioner has all along remained present, but the counsel

for the other side is not present. Mr. P. N. Goja, was appearing for the respondent. He is stated to have left the valley, but the notice was issued to

the parties. Representative of the Respondent-Bank was present in person on 12-12-1987 before the Registry of this Court, thereafter the

respondent did not appear however on 28-1-1988 Mr. R. A. Jan, has appeared for Mr. P. N. Goja and had sought an adjournment. However,

nobody is present on his behalf today. This revision is against the order of learned Sub-Judge, (Chief Judicial Magistrate, Srinagar) dated 19th of

December, 1984. Simple point involved is that in the money suit in which the present petitioner was defendant, plaintiff bank which is the

respondent herein while examining its witness Rajaji has produced the document through the aforementioned witness during the course of his

statement being recorded, which was objected to by the learned counsel for the petitioner-defendant on the plea raised, that it is not the stage for

the production of such document. The trial Judge by way of its order dated 19-12-1985 has overruled the objection of learned counsel for the

petitioner stating therein that there is no bar in the Civil Procedure. Code to produce the document through a witness at a later stage. He has based

his finding on Order 13, Rule 2.

Heard learned counsel for the petitioner and I have gone through the impugned order, regarding production of document. Order 7, Rule 14

directs the plaintiff to produce the document on which basis his claim with the plaint presented and directs that the copy of the document be filed

with the plaint. This is one stage for the production of the document. Rule 2 of Order 13 reads as under:

Effect of no production of documents:-- No documentary evidence in the possession or power of any party which should have been produced

but has not been produced in accordance with the requirements of Rule I 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.

The trial Court has relied on this rule but has not made its proper application. Rule 2 of Order 13 which has been quoted above clearly says that

the parties are not debarred from producing a document at any subsequent stage provided firstly that the party will have to show a good cause to

the satisfaction of the Court for non-production thereof at an earlier stage and secondly the Court receiving such evidence shall record the reason

for so doing. Both these directions have been ignored by the trial Court while overruling the contention of the learned counsel for the petitioner. Do

not mean to say that the respondent was debarred from producing the document at the evidence stage, but he should have made a prayer

application showing good cause as to why he has not produced the document till then, to the satisfaction of the Court and thereafter duty of the

Court was to accept or reject the contention after giving its reasons. This has not been done in this case, what the Court has done here, is that

while recording the statement of witness of respondent-plaintiff has allowed to entertain the document on which the respondent relied and which

document was not produced at the time of presenting of plaint, nor it was produced till or at the time of settlement of issue. The trial Court thus has

not applied its mind while applying under Order 13 of Rule 2.

For these reasons, therefore, the impugned order is quashed and it will be open to the respondent to move to the Court for producing the

document in accordance with Rule 2 of Order 13 of Civil Procedure Code. In case the Court is approached in accordance with law, trial Court

shall dispose of the application afresh accordingly.