Narender vs Vikram Electric Equipment Private Limited

Rekha Mittal, J. - The present petition lays challenge to order dated 23.5.2016 passed by the Additional Civil Judge (Senior Division), Gurgaon

whereby two applications filed under Order 8, Rule 1A (3) of the Code of Civil Procedure (in short ""CPC""), one dated 31.8.2012 filed by the

respondent/plaintiff and the other dated 18.12.2013 filed by the petitioner/defendant have been decided by a common order.

The respondent-plaintiff filed an application for restraining the defendant/petitioner from exhibiting the documents mentioned in the application

whereas the application filed by the petitioner/defendant is for grant of leave to produce the documents at the stage of adducing evidence by the

defendant/petitioner.

Counsel for the petitioner has submitted that the mere fact that documents sought to be produced by the petitioner/defendant during course of

evidence were not produced with the pleadings or entered in the list of reliance is not sufficient to reject claim of the petitioner to produce the

documents at the time of evidence though the petitioner may be put to terms for his failure to produce the documents or enter them in a list at an

appropriate stage of the proceedings. In support of his contention, he has relied upon judgment of this Court Sewa Singh v. M/s Ganpati

Trading Company 2015 (1) Civil Court Cases 430. Further reliance has been placed upon judgment of Hon''ble the Supreme Court of India

Kailash v. Nanhku and others AIR 2005 Supreme Court 2441 and judgment of Gujarat High Court Jindal Saw Limited v.

Saubhagyachand Shambulal Vora 2006 AIR (Gujarat) 1000. In addition, it is submitted that in case the petitioner is not permitted to produce

and prove documents Exs. D.1 to D.21, detailed in para 7 of the petition which were tendered into evidence along with affidavit of the petitioner

filed by way of examination in chief before the trial court, a serious prejudice would be caused to the petitioner to defend the suit filed by the

respondent/plaintiff for recovery of Rs. 28 lakhs (principal) and Rs. 8,96,000/- (interest) along with future interest at the rate of 12% per annum on

the basis of agreement to sell dated 26.7.2006 in respect of land, detailed in para 2 of the plaint (Annexure P-1).

I have heard counsel for the petitioner, perused the paper book, written statement filed by the petitioner and the order impugned.

Before adverting to the submissions made by counsel for the petitioner, it would be appropriate to deal with the judgments cited by counsel to

assail the impugned order.

In Sewa Singh''s case (supra), M/s Ganpati Trading Company filed a suit for recovery based on account books viz Rokar Bahi, Khata and

Form-J maintained in the daily course of business. The respondent/plaintiff, during the course of leading evidence, filed an application for grant of

leave to place on record copies of the cash book, khata entries along with form-J and punjabi translation thereof that was allowed by the trial court

vide order impugned in the revision petition preferred by Sewa Singh defendant. This Court, on consideration of the provisions of Order 7, Rule

14 CPC and Order 8, Rule 1A and Order 13, Rule 1 CPC concluded that a conjoint reading of Sub Rule 2 of Rule 14 Order 7 , Sub Rule (3) of

Order 8 as also Rule 1A Order 8 CPC makes it clear that any document which though should have been produced along with the pleadings is not

so produced, may be allowed by the Court to be produced at any subsequent stage if sufficient reason is shown by erring party for non-production

of the same and along with its pleadings. It has further been held that in the present case, Rokad Bahi, Khata along with Form-J and translation in

Gurmukhi script, original of which are sought to be produced and copies whereof are already available with the pleadings of the parties, could be

filed at a later stage with the leave of the Court. The judgment of Hon''ble the Supreme Court in Kailash''s case (supra) pertains to the provisions

of Order 8, Rule 1 that spells out the right of the respondent to file the written statement within a period of 90 days and competence of the Court

to extend that period to another 30 days in exercise of its discretion. However, the judgment has nothing to do with the controversy raised in the

present case. Similarly, the judgment passed by Gujarat High Court pertains to Order 8, Rule 1 CPC and therefore, has no bearing on the

controversy involved in the present case.

Now reverting to the facts of the case at hand, the trial court on a detailed consideration of the averments set up in the written statement

particularly para 8 thereof, reproduced verbatim in para 4 of the impugned order as well as paras 2 and 3 of the affidavit tendered into evidence

containing reference to the documents exhibit D1 to D 21, the trial court held that comparative perusal of the ibid paras goes to show that the

documents mentioned by the defendants in the affidavit are totally alien to the written statement as there was not even a whisper about the

docuemtns in the written statement. Further held that it can be conclusively said that the documents mentioned in the affidavit were neither the basis

of defence nor the same were relied upon by the defendant, therefore, the Court has no discretion to grant leave for production of these documents

in exercise of jurisdiction under Order 8, Rule 1A (3) read with Rule 1-A(1) thereof.

Counsel for the petitioner is not in a position to assail these factual findings recorded by the trial court. This court has examined the averments

raised in the written statement as well as the documents sought to be produced and proved during the course of evidence. The findings recorded

by the trial court that the documents Exs. D.1 to D.21 do not find reference in the written statement get substantiated from the pleadings of the

petitioner particularly para 8 of the written statement (Annexure P-2). To be fair to the petitioner, he in para 8 has averred with regard to his

presence on 21.2.2007 for execution and registration of the sale deed and his having got his presence marked in the office of Sub Registrar,

Gurgaon but there is no averment as to how he got his presence marked much less that he executed an affidavit and got it attested from an

authority. Counsel for the petitioner has failed to cite any law or a precedent that permits a party to adduce any evidence beyond pleadings much

less produce and prove series of documents that do not find reference in the written statement. In this view of the matter, I do not find any error

much less illegality in the impugned order warranting intervention.

For the foregoing reasons, the petition fails and is accordingly dismissed in limine.