Rupaben Amit Pathakji vs Amit Manmathchandra Pathakji and Another

K.S. Jhaveri, J.—By way of present petition, the Petitioner has inter alia prayed for quashing and setting aside the impugned order dated 24th October 2003 passed by the 4th Joint Civil Judge(S.D.), Vadodara, below Exh.139 in Special Civil Suit No. 295 of 2003, whereby the application of the Petitioner for production of documents was rejected.

It is pertinent to note that when present petition came up for admission hearing on 13th October 2004, this Court passed the following order:

Rule.

Ad-interim relief in terms of para 7(C).

The learned advocate for the Petitioner has contended that when the documents are found to be relevant to decide the real issue in controversy and when the justice requires that the documents should be received in evidence, the trial Court ought to have exercised discretion in favour of Petitioner by permitting him to produce the documents rather than rejecting the application of the Petitioner. In support of this submission, Mr. Navin Pahwa has relied upon the decision of the Apex Court in the case of Billa Jagan Mohan Reddy and Another Vs. Billa Sanjeeva Reddy and Others,

As against the aforesaid submission, Mr. Dipen Shah, learned advocate for the Respondent No. 1, has submitted that the story canvassed by the Petitioner is altogether a new story and if the said application is allowed the Respondent herein will lose his right to defend the case.

Having considered the rival contentions raised by the learned advocates for the respective parties, averments made in the petition and the documentary evidence produced on record, it transpires that the documents on which the Petitioner wants to place reliance appears to be relevant to decide the issue in controversy. Therefore, this Court should exercise its discretion in favour of the Petitioner.

Here it would be beneficial to reproduce the relevant part of the decision of the Apex Court in the case of Billa Jagan Mohan Reddy (supra), which reads as under:

It is clear from its bare reading that the parties or their counsel shall be required to produce all the documentary evidence in their possession or power which they intend to rely on to establish their right along with pleadings or before settlement of the issues. The court is enjoined under Sub-rule (2) to receive such documents provided they are accompanied by an accurate list thereof prepared in the prescribed form. If they are not in the party''s possession or custody, it shall be filed by the party along with an application to condone the delay in filing them. The explanation for delay is not as rigorous as one filed u/s 5 of the Limitation Act. These documents were not in the possession or custody of the Appellants, but they have obtained certified copies from the Revenue Authorities and sought to be produced. It is undoubted that there is a delay in production of the said documents. But the trial court had stated that the application was filed at the stage of arguments, seeking to produce those documents and sought to rely upon the documents. It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27 Code of Civil Procedure, 1908 the appellate court would receive the documents and consider their effect thereof. When such is the position, when the documents are sought to be produced in the trial court, before the arguments are completed, normally they may be received; an opportunity given to prove them and rebuttal if any and their relevance and effect they may have, be considered in deciding the issues arising in the controversy. Under these circumstances, the trial court was not justified in refusing to condone the delay and to receive the documents. The High Court also committed the same error in not considering the effect in this behalf in the right perspective. The orders are accordingly set aside and the delay in filing the documents is condoned. The trial court is directed to receive the documents, give an opportunity to the parties to prove the documents and if necessary, opportunity to the Respondent to rebut the same and then dispose of the reference according to law.

In view of aforesaid and in light of the aforesaid decision of the Apex Court, present application is hereby allowed, subject to the rights of the original Defendants to cross-examine the original Plaintiff in this respect. The impugned order is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to costs.

Since the suit is of the year 2003, the trial Court is directed to dispose of the same on or before 31st December 2011.