Mt. Taibunnissa Begum vs Jagdip Pandey and Others

Dawson Miller, C.J.—This is an appeal under the Letters Patent from a decision of Mr. Justice Boss overruling the decree of the lower Courts and remanding the case for retrial after the admission of certain evidence which was rejected by both the lower Courts.

The plaintiff obtained against one Mr. Mackenzie a decree and in execution of that decree sold certain property alleged to belong to Mr. Mackenzie and in the execution sale the plaintiff purchased the property sold. Subsequently the defendants instituted proceedings under Order 21, Rule 100 of the CPC claiming to have the sale set aside on the ground that they were the sole parties interested in the property and that Mr. Mackenzie was not the proprietor at all. In those proceedings the defendants succeeded. The plaintiff thereupon brought the present suit against the defendant Jagdip Pande who had brought the proceedings under Order 21, Rule 100 and certain other persons who are apparently joint with him in estate claiming to recover possession of the property from the defendants.

The plaintiff succeeded in establishing her title to the property and in disproving the defendants'' title and judgment was pronounced in her favour by the trial Court and on appeal that decision was upheld.

The only ground upon which the appeal was preferred was that the learned Munsif before whom the case came for trial had improperly rejected certain evidence tendered by the defendants at a late stage of the case. It appears that the issues in the suit were framed on the 14th April and under the Rules in the CPC all documentry evidence of every description in the possession or power of the parties ought to have been produced at the first hearing which was either on or before the 14th April. Later applications were made for adjournment of the hearing and it was not until the 29th May that the actual hearing of the suit commenced and on the following day arguments were heard and judgment was delivered on the 31st. On the 29bh May the defendants produced the document in question and the learned Munsif rejected them on ground that they ought to have been produced at an earlier stage.

On appeal, the District Judge upheld the ruling of the Munsif being of opinion that he was perfectly justified in rejecting the documents tendered at that late stage of the proceedings.

From that decision a second appeal was preferred to this Court and the matter came before Mr. Justice Boss. The learned Judge was of opinion that the Munsif had improperly exercised his discretion in rejecting the documents in question and remanded the case for re-trial by the Munsif after taking the evidence which had been excluded.

From that decision the present appeal under the Letters Patent is brought by the plaintiff. I ought to mention here that the documents which were tendered in evidence on the 29th May were first of all a letter which purported to have been written by Mr. Maokenzie who, 1 understand, is now dead and certain counterfoils of rent receipts in connection with the property the subject-matter of dispute. These had been used by the defendants and filed before the Judge in the proceedings under Order 21, Rule 100 in which the defendants were successful, and the only possible ground upon which it could be suggested that the defendants bad good cause for not producing their documents at the proper time would be that these documents had been in existence before the suit was instituted and therefore there was no pressing necessity for producing them at the very first moment and that this m itself was sufficient cause for inducing the Court to admit the documents at a later period. In considering this question it is necessary to bear in mind exactly what the law is on the subject as laid down in Order 13 of the Civil Procedure Code. I have already referred to the first Rule of that Order which makes it obligatory upon the parties to produce all their documentary evidence at the first hearing of the suit. Rule 2 of the same Order provides 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. It will be observed that that Rule gives no discretion to the Court to receive evidence at a later stage than that mentioned in the previous Rule unless good cause is shown to the satisfaction of the Court for the non-production thereof. The Rule is precise and excludes all documentary evidence produced at a late period unless good caus9 is shown for its non-production. That Rule has been found perhaps in some cases to work a certain amount of hardship and the tendency has no doubt been to endeavour to some extent at all events to enlarge the scope of the rule by allowing the late production of documents in cases where it is quite obvious that no prejudice would arise to the other party by their late production and where the genuineness of the documents sought to be admitted is beyond all question. In the case of Taleswar Singh v. Bhagwan Das 12 C.W.N. 312 the learned Judges of tine Calcutta High Court pointed out that whilst it is for the Court of first instance to decide whether the documents which ought to have been mentioned in the original list or ought to have been produced earlier were not so produced for good and sufficient reasons, at the same time the object of the legislature in enacting this Rule was to provent fraud by the late production of suspicious documents and not to shut out formal evidence beyond suspicion such as certified copies of public document or records of judicial proceedings. In that case although it would appear that no valid excuse had been proved for not producing documents of that nature at the first hearing of the suit nevertheless the Court allowed the production of public documents at a later period either before or at the actual hearing. The principle relied upon in that case, however, must not, in my opinion, ha pushed too far. It seems to me that that decision may be justified upon the ground that where you have a public document which clearly is one beyond all suspicion as to its authenticity and which can be procured at any time by either party that fact may in itself be sufficient cause for not producing the document at the earliest stage, because unless soma prejudice is suffered by the other side by its late production, which of course would be sufficient to exclude it, it seems fairly obvious that the other party can suffer no harm by its late production because the genuineness of the document is beyond question; and therefore as I say that fact may in itself be quite sufficient excuse or sufficient cause for the non-production of the document in the first instance, In the present case, however, the documents which it is now sought to have admitted after trial and which the defendants asked to have admitted at a late stage in the proceedings are not documents of that nature. They are not public documents. The principal document is a letter said to be signed by Mr. Maokenzie himself which it is said will have a material bearing on the question in dispute in this case and the only ground upon which it has been suggested that there was good cause for non-production of that and of the other documents is that those documents were in fact exhibited in the proceedings under Order 21, Rule 100 and therefore it must be presumed that they at lease were not fabricated for the purposes of the present case. Further it is said that both parties were aware of these documents because in the previous proceedings both the plaintiff and the defendants had also been parties. I am not prepared to say that the mere fact that a document has been in existence for some length of time before the proceedings were instituted is in itself sufficient good cause for allowing the documents to be produced at a later stage of the proceedings. When the application was made to the learned Mursif no cause apparently of any sort was shown why the documents should be admitted and what exactly ware the grounds which induced the learned Munsif to reject these documents we have now no means of determining. The learned Vakil can give us no assistance upon that point and all we know from the record of the case is that the documents were tendered and rejected. It many well be, in the absence of any proof as to the cause which was shown for their late production, that the Munsif had very good reasons either from a perusal of the documents themselves or from something which may have been stated to him in Court for rejecting those particular documents, and in fact so far as we can judge for ourselves the principal document in the case is one which indicates something if not exactly a fraud something which would indicate a desire to setup a different state of fact from those which were actually existing. What the exact worth of these documents may be as evidence it is impossible for us to determine but having had the documents produced, an advantage which my learned brother who heard the second appeal in this Court and from whose judgment this appeal is brought, had not, I certainly am not prepared to say that the Munsif exercised a wrong discretion in rejecting them at the stage at which they were tendered. No real cause has, to my mind, been made out why they should necessarily be accepted and in these circumstances it does not appeal to me that it is right that this Court should interfere with the discretion which in all probability, and as far as one can judge from the circumstances disclosed, was a perfectly proper discretion on the part of the Munsif. I think that the decision of the learned Judge under appeal should be set aside and the decree of the Subordinate Judge affirming that of the Munsif should be restored. The appellant is entitled to her costs of this appeal and of the appeal to Mr. Justice Boss.

Mullick, J.

I agree.