Jagadeesh vs Shekargouda and Others

Aravind Kumar, J.—Heard Shri Mahesh Wodeyar, learned counsel appearing for petitioner and Shri S.R. Ambali, learned counsel appearing for respondent No. 1. By impugned order petitioner/plaintiff has not been permitted to lead further evidence and his applications had been rejected, though it was not opposed to by respondent No. 2 herein, no notice is issued to respondent No. 2 in the preset writ petition in W.P. No. 100420-21/2015 and also in view of fact that notice has been served in W.P. No. 100075-76/2015 on the counsel appearing for 1st respondent and respondent No. 1 being duly represented, matter is heard and disposed of on merits by consent of learned advocates.

Grievance of the petitioner is that suit O.S. No. 29/2010 had been filed for relief of specific performance of agreement of sale dated 15.03.2005 against the defendant and plea had been put forward by plaintiff that out of total sale consideration of Rs. 6,11,000/- agreed to be paid a sum of Rs. 3,50,000/- had been paid by way of advance and to prove factum of payment of advance amount, was partly through cheques, applications in question were filed seeking for production of certified copies of cheques issued by plaintiff - bankers and to mark said documents though P.W. 1 and as such, he was sought to be recalled, when matter was at the stage of final arguments. Application to recall D.W.1 for further cross-examination on this aspect also came to be filed. Said applications having been resisted by 1st defendant, Trial Court dismissed these applications on the ground that plaintiff has not made out any justifiable ground to allow them namely to recall P.W.1, production of documents and also to recall D.W.1. It is this order which has been impugned in these writ petitions.

It is the contention of Shri Mahesh Wodeyar, learned counsel appearing for petitioner that prior to institution of suit, a legal notice had been issued to defendant No. 1 on 15.09.2009 as per Ex. P-2 and it was specifically contended that total consideration of Rs. 3,50,000/- had been paid to 1st defendant which was inclusive of amounts paid by cheques and to prove this fact, plaintiff applied for grant of certified copies of cheques to his bankers and despite all efforts made by plaintiff to secure and produce these cheques at earlier stage did not yield result and immediately after obtaining certified copies of cheques from his banker, present applications came to be filed and as such, petitioner could not produce the same at earlier point of time and Trial Court ought to have considered these vital aspect for allowing the applications in question and non-consideration of legitimate prayer of plaintiff has resulted in erroneous order being passed and thereby plaintiff would be deprived to place cogent evidence to prove the fact that the 1st defendant had received part of consideration amount from plaintiff through cheques.

Per contra, Shri S.R. Ambali, learned counsel appearing for 1st defendant respondent would support the order passed by the Trial Court and contends that plaintiff being fully aware of the fact that he had to prove the payment of advance amount under agreement of sale to 1st defendant did not choose to place said evidence when he was extended the opportunity by Trial Court and only with the intention of protracting the proceedings applications in question came to be filed and even otherwise, when the matter is set down for arguments, plaintiff should not be permitted to tender such evidence to fill up the gaps. Hence, he prays for dismissal of writ petitions. In support of submission he had relied judgment of co-ordinate Bench of this Court in the case of Boramma Vs. Boraiah, .

Having heard the learned counsel appearing for parties and on perusal of impugned orders as well as applications filed by the plaintiff for production of documents and recall of P.W.1 and D.W.1 together with objections filed thereto by 1st defendant, it requires to be noticed that plaintiff is required to produce all such documents upon which he relies upon at the time of presenting the plaint or in other words along with plaint or even before commencement of trial upon which he seeks for grant of relief sought for in the plaint. A co-ordinate Bench in Smt. Boramma''s case referred to supra has held to the following effect:

"9. Here, again the obligation is cast upon the defendant to produce all the documents in support of his defence along with the written statement. If the documents are not produced along with the written statement, it shall not, without the leave of the Court be received in evidence on his behalf at the time of hearing of the suit. Again, the language employed is couched in negative words and this also is mandatory. However, an exception is carved out in both the cases where the documents, which are produced for the cross-examination of the plaintiff and the defendant are handed over to the witness merely to refresh their memory. Similarly, the only other stage, where the document which is not produced along with the plaint and Written Statement, which could be produced is at the stage of evidence, along with the affidavit as contemplated under Order XVIII Rule 4(1) of the Code of Civil Procedure, which is as follows:

"4. Recording of evidence.--(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:

Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court". 10. With the substantial amendments to Order XIII of CPC, there is no stage where the Court can fix a date for production of documents, which was the position prior to amendment. Similarly, the provision for production of documents after that stage is being deleted. Therefore, the question of producing documents after these two stages, as a matter of right, would not arise. However, documents could still be produced with leave of the Court. It is by way of an interlocutory application, so that the opposite party would get an opportunity to have his or her say in the matter, and then the Court can decide whether a case for granting leave is made out. Thus, the object of these two amendments is to facilitate speedy disposal of full preparation and then enter the Court Hall and not to search for documents after the trial begins. Though with the avowed object, the Parliament has done its bit, still the Bar and the Bench have yet to reconcile to this legal position and try to follow this mandate and law literally."

As rightly contended by Shri S.R. Ambali, a party to suit will not get a right to seek production of documents at all stages. However, in the interest of justice and for reasons to be recorded by Court, production of such documents which may be tendered in evidence cannot be shut out on the ground of same having not been produced at an earlier stage. Procedural factor will have to yield to substantial justice. It has been held in the above referred Boramma''s case itself that by a way of an interlocutory application, documents still could be produced with the leave of Court. In other words, it has been held that when such application is filed, as a matter of course, it cannot be allowed and will have to be considered on the facts and circumstances of the each case. Thus, keeping in mind the above principle in mind when facts on hand are examined, it would clearly indicate that petitioner/plaintiff in the legal notice issued as per Ex. P-2 had laid the foundation namely he has specifically contended that totally he had paid to 1st defendant a sum of Rs. 3,50,000/- inclusive of payment made by cheques. However, in the plaint there is no averment as to whether said amount of Rs. 3,50,000/- paid by plaintiff was by cash or by cheque or by both and pleading on this aspect is silent.

Be that as it may. The fact that in legal notice Ex. P-2, plaintiff had stated that he had paid the fine amount to 1st defendant by way of earnest money through cheques is not in dispute. Thus, burden was on plaintiff to prove said fact. To discharge said burden, plaintiff is said to have approached his bankers for issuance of certified copies of the cheques which is said to have been encashed by 1st defendant and it has since been procured. Plaintiff has pleaded that he could not produce these cheques at the earlier point of time since these documents were old and could not secure earlier and produce it on time. He has also contended that after having obtained certified copies of those cheques issued by him to the 1st defendant which is said to have been encashed by 1st defendant, which is duly certified by his bankers he sought for production. In order to mark these documents, plaintiff had also filed an application to get himself recalled and also to recall D.W.1. All these applications have been dismissed by Trial Court on the ground that it cannot be received when case is posted for arguments by relying upon Boramma''s case referred to supra. As already noticed herein above in Boramma''s case, it has been held by coordinate Bench of this Court that with the leave of Court such documents can be produced. As to whether leave should be granted or not would depend upon facts and circumstances of each case. In the instant case, plaintiff has fairly spelt out as to what attempts were made by him to secure certified copies and why it was not produced earlier. Now plaintiff has obtained the certified copies of those cheques which is said to have been issued to defendant, which he intends to produce and get it marked. Step taken by plaintiff cannot be held to be a dilatory tactics adopted by plaintiff. To avoid any further multiplication of proceedings in this regard and to meet the ends of justice, it would be necessary to permit the plaintiff to produce these documents not only by getting himself examined but also to cross-examine, D.W.1 in this regard and for this limited purpose D.W. 1 is required to be recalled.

In order to allay the apprehensions expressed by Shri S.R. Ambali, learned counsel for 1st defendant that plaintiff would protract the proceedings, this Court is of the considered view that if a time frame is fixed by putting plaintiff and defendants on terms to proceed with the matter before Trial Court, it would meet the ends of justice. In view of the fact that plaintiff has belatedly produced these documents and as such, has sought for recall of P.W.1 and D.W.1 to tender evidence and has also made 1st defendant to appear before this Court and defend the order passed by Trial Court. Hence, plaintiff requires to be mulcted with costs payable to 1st defendant which is quantified at Rs. 2,500/- for each of the application i.e., in all plaintiff has to pay a sum of Rs. 10,000/- towards costs and payment or deposit of costs shall be condition precedent for proceeding with the matter.

Hence, the following:

ORDER

(i) Writ petitions are hereby allowed.

(ii) Order dated 07.11.2014 and 02.12.2014 at Annexure - A in both writ petitions are hereby quashed.

(iii) I.A. Nos. 14, 15, 16 and 17 are hereby allowed, subject to parties adhering to the following time frame within which the proceeding shall be concluded before the trial Court.

If either of the parties were to seek for any adjournment, without justifiable costs, trial Court would be at liberty to impose exemplary costs on such of the party who seek for adjournment.