Nemai Chandra Ghosh vs C. E. S. C. Ltd.

The Court:

This is an application made on behalf of the plaintiff for relying upon certain additional documents that have been disclosed by them under the letters dated September 19, 2018 and February 27, 2019. It is to be noted that the examination of the first witness of the plaintiff was concluded on February 15, 2019 and the matter was fixed for further examination of the second witness of the plaintiff today.

Mr. Banerjee, learned counsel appearing on behalf of the plaintiff submits that the documents intended to be disclosed are a bunch of income tax receipts for taxes paid by the plaintiff and a photocopy of a letter dated December 24, 2003 issued by the plaintiff to the defendant company. Mr. Banerjee submits that this particular letter is referred to by the defendants in their written statement.

Mr. Ray, learned counsel appearing on behalf of the defendants has raised objections with regard to these further documents being disclosed at this stage on the ground that the application made by the plaintiff does not disclose the reasons as to why these documents were not disclosed at an earlier occasion. He relies on Salem Advocate Bar Association, T.N. vs. Union of India

reported in (2005) 6 SCC 344, GSP Projects Private Limited vs. Rockfield Paj Replications Pvt. Ltd. reported in 2016 SCC OnLine Cal 3653, and Armen George & Co. Pvt. Ltd. vs. Flavien Properties Pvt. Ltd. & Anr. reported in (2013) 2 Cal LT 322 (HC) in support of his submission that the Code of Civil Procedure does not allow for documents to be disclosed at any stage of the proceedings. He submitted that Order 7 Rule 14 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") requires the plaintiff to disclose his documents within a particular time frame and if the plaintiff intends to add additional documents, it is for the plaintiff to show that such documents were not in his possession or power to disclose at an earlier occasion. Mr. Banerjee in reply has placed the judgments in Kejriwal Enterprises vs. General Manager, Ordnance Factory & Ors. reported in (2005) 1 CHN 487 and Talewar Singh & Ors. vs. Bhagwan Das & Ors. reported in (1907-08) 12 CWN 312 to support his case that the law prevailing is that the plaintiff can take leave of the Court under Order 7, Rule 14, Sub-Rule (3) of the CPC to tender additional documents.

I have heard the counsel appearing on behalf of both the parties and considered the materials on record.

At the very outset, I would like to point out that the documents that are being sought to be included in evidence by way of this application are a bunch of documents that are receipts from the Income Tax Department and a letter issued by the plaintiff to the defendants that has itself been referred to by the defendants in their written statement.

The judgment in Salem Advocate Bar Association, T.N (supra) clarifies the position with regard to production of evidence at a later stage. The relevant paragraph 13 is delineated below :-

"13. In Salem Advocate Bar Assn. case it has been clarified that on deletion of Order 18 Rule 17-A which provided for leading of additional evidence, the law existing before the introduction of the amendment i.e. 1-7-2002, would stand restored. The rule was deleted by Amendment Act of 2002. Even before insertion of Order 18 Rule 17-A, the court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order 18 Rule 17-A did not create any new right but only clarified the position. Therefore, deletion of Order 18 Rule 17-A does not disentitle production of evidence at a later stage. On a party satisfying the court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the court may permit leading of such evidence at a later stage on such terms as may appear to be just."

One may also look into the relevant extract in Kejriwal Enterprises (supra) that deals with Sub-Rule (3) of Rule 14, Order 7 of the CPC. The relevant portion of the judgment is delineated below :-

"8. Thus it is evident that while there was no insertion of sub-rule (3) of Rule 14 of Order 7, or substitution of said sub-rule by Amendment Act 22 of 2002 as above, there was a distinct provision under Order 18-A of Rule 17-A of the Code to cover the situation where the documents, which the plaintiff wants to tender in evidence, were either not presented along with the plaint or not entered in the list for being tendered in evidence. Because of substitution of Sub-rule (3) to Rule 14 of Order 7 of the Code as above by Amendment Act 22 of 2002 the legislature thought it necessary to omit the provisions of Rule 17-A of Order 18 which became redundant as the plaintiff would still be entitled to tender the documents, in evidence, even if the same have not been presented along with the plaint or entered in the list added or annexed to the plaint, for being tendered in evidence at the hearing of the suit. In such a situation, the leave of the Court, as required to be obtained under Order 18, Rule 17-A of the Code, is now to be obtained under Order 7, Rule 14, Sub-Rule (3) of the Code.

Upon reasonable construction of the provisions of Order 7, Rule 14, Sub-Rule (3) as amended by Amendment Act 22 of 2002 and amending Act 46 of 1999 whereby the provisions of Rule 17-A of Order 18 has been omitted from the Code, this Court is of the view that, the documents, which have not been presented along with the plaint and also have not been entered in the list that has been added or annexed to the plaint as per the provisions of Order 7, Rule 14 Sub-Rule (1) of the Code could still be tendered in evidence with the leave of the Court which the Court may grant in exercise of jurisdiction under sub-rule (3) of Rule 14 of Order 7 of the Code as amended by Amendment Act 22 of 2002."

In Talewar Singh & Ors. (supra) the Division Bench of this High Court had examined Sections 138 and 139 of the Civil Procedure Code (Act XIV of 1882) [corresponding to Rule 14 of Order 7 of CPC] for the purpose of ascertaining what kind of documents can be produced at a later stage. The relevant portion of the judgment is delineated below :-

"As regards the other documents which were produced in Court for the first time on the 6th January, 1905 and which had not been mentioned in the list annexed to the plaint, the Court of first instance clearly had a discretion, whether to receive or to reject them. Now under sec. 139, C.P.C, 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 sec. 138 shall be received at any subsequent stage of proceedings, unless good cause be shown to the satisfaction of the Court for the non-production thereof. No doubt the Plaintiffs have brought themselves within the scope of this section, and it was 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, we must remember the object which the Legislature had in view in enacting sec. 139, C.P.C. It was pointed out by this Court in the case of Syed Ikram Hossein v. Ram Lochun Dutt and by the learned Judges of the Bombay High Court in the case of Ranehhod Hirabhai v. The Secretary of State that sec. 138 of the Code was enacted to prevent fraud by the late production of suspicious documents, and not to shut out formal evidence beyond suspicion such as certified copies of public documents or records of judicial proceedings. Now on an examination of the documents which the Plaintiffs seek to produce in a late stage of this case. It turns out that by far the majority of them are copies of public documents. They are in most instances copies of judicial proceedings as to the genuineness of which there could not be any possible controversy. There is only one document which does not fall within this description. It is a kabuliyat executed on the 26th January, 1889 by Bharosi Singh in favour of Sangam Lal. We have not been informed whether this document was registered. If it was a registered document, it could not be suggested that there was any prejudice to the Defendants by reason of delay in its production; it could not be said that the Plaintiffs wanted time to manufacture it. Under these circumstances we must hold that the documents which were not mentioned in the list of 6th January, 1905 should also be received in evidence except this Kabuliyat which may be received in evidence if it is a registered document, otherwise it will be excluded."

The ratio that emerges in examination of various judgments cited by the parties is that a party can neither be allowed to produce documents at a belated stage for the purpose of delay of the trial nor to add evidence of suspicious nature. However, it is for the Court to examine and judge, in each particular case, whether addition of the new documents at a later stage would result in any prejudice to the other party. In the event, prejudice is caused, the Court should not receive such documents in evidence. Needless to say, if the documents sought to be produced do not cause any prejudice, the same should be allowed unless it is found that such additional documents are being produced only for the purpose of delay of the trial.

In my view, the application made by the plaintiff seeks to add documents that do not cause any prejudice to the defendants. Firstly, the income tax receipts are documents of a public nature and only substantiate plaintiff's case as made out in the plaint. Secondly, the letter dated 24th December, 2003 is a document that has been referred to by the defendants itself in their written statement. Therefore, production of the same shall cause no prejudice to the defendants. However, it is to be noted that the application made by the plaintiff does not provide for any specific reason as to why these documents were not produced at an earlier occasion. On this ground itself the application may be rejected as the provisions provide for a proper explanation to be given by the party that intends to disclose further evidence at a later stage. However, I am of the view, that rejecting this application would only hamper the trial that is already in process and would cause unnecessary delay to the same. In light of the peculiar circumstances, as pointed above, I allow the application being G.A. No. 4 of 2019 for disclosure of the further additional documents on the condition that the plaintiff shall pay a costs of Rs.5,100/- to the Ramkrishna Mission within a period of seven days.

The plaintiff is required to file evidence of payment of the same in Court within a period of ten days. This matter is fixed for examination-in-chief and cross-examination of the second witness of the plaintiff on 25th April, 2019. The plaintiff is directed to file the Additional Judge's Brief of Documents in Court within ten days and serve a copy of the same on the defendants. The defendants shall have the right to seek inspection of the same before 25th April, 2019.