Sampaje Rubber and Others vs S. Gopal Kamath and Co.

B. Manohar, J.—Petitioners are defendants in O.S. No. 8734/2006 on the file of the XXXI Additional City Civil and Sessions Judge (CCH 14), Bangalore City. Being aggrieved by the order dated 16.9.2014 allowing I.A. No. 5 filed under Order 7 rule 14 of CPC seeking permission to produce the documents and I.A. No. 6 filed under Section 151 of CPC seeking to reopen the case and permit P.W. 1 to adduce further evidence, these writ petitions have been filed.

Respondent herein filed the suit seeking for recovery of money jointly and severally from the defendants. The case of the plaintiff is that it is a partnership firm and carrying on business of supply of various rubber chemicals and allied products to its customers. As per the request made by the defendants, the supply of rubber chemical has been made. However, defendants are due in a sum of Rs. 7,97,235/-. In spite of acknowledging the dues, defendants have failed to pay the said amount. In view of that, the suit was filed for recovery of the said amount together with interest at 16% p.a. and other reliefs. Defendants entered appearance and filed written statement denying the claim made by the plaintiff and also contended that they are not due any money to the plaintiff. On the basis of pleadings of the parties, the Trial Court framed necessary issues. The plaintiff, Manager got examined as P.W. 1 and marked the documents. The 2nd defendant got examined as D.W. 1 and marked three documents. When the case was posted for cross-examination of D.W. 1, plaintiff came up with I.A. Nos. 5 and 6 praying to permit him to produce documents and reopen the case and to adduce further evidence. The said applications were opposed by the defendants.

Plaintiff in support of I.A. Nos. 5 and 6 contended that the defendants had taken a defence that they have closed down the business from the year 1992 and there is no transaction between them from the year 1997. Plaintiff wanted to produce invoices and other documents to show that there is transaction between the plaintiff and defendants till 2003-2004. These documents are very much necessary for adjudication of the dispute between the parties. It was specifically contended that the Advocate, who was handling the case was not well. While briefing another Advocate, it was noticed that the plaintiff has to produce some more documents to counter the defence taken by the defendant to say that there was business transition till the year 2003-2004. If the said documents are accepted, no prejudice will be caused to the defendants. Therefore, plaintiff filed I.A. Nos. 5 and 6. The Trial Court after examining the matter in detail and taking into consideration the pleadings of the parties, stages of the case as on the date of filing the applications and taken into consideration the various judgments of the Hon''ble Supreme Court, allowed I.A. Nos. 5 and 6 and permitted the plaintiff to reopen the case and mark the documents. Being aggrieved by the same, the petitioners have filed these writ petitions.

Sri Tharanath Shetty, learned Advocate appearing for the petitioners contended that the order passed by the Trial Court allowing I.A. Nos. 5 and 6 permitting the plaintiff to produce documents and adduce further evidence of P.W. 1 is contrary to law. The suit was filed in the year 2006. After long lapse of eight years, I.A. Nos. 5 and 6 were filed seeking permission to produce documents and reopening the case. The defendants in the year, 2007 itself produced Exs. D1 to D3 and nothing prevented the plaintiff to produce the documents immediately. They kept quiet for a period eight years. During the cross-examination of D.W. 1, plaintiff wanted to file I.A. Nos. 5 and 6, it is nothing but an afterthought in order to fill up lacuna. The Trial Court without examining the contentions raised by the defendants allowed the applications, which is contrary to law.

On the other hand, Sri Poonacha, learned Advocate appearing for the respondent argued in support of the order passed by the Trial Court and contended that even before conclusion of the trial, during the course of cross-examination of D.W. 1, I.A. Nos. 5 and 6 were filed for reopening the case of P.W. 1 and production of documents to counter the claim of defendants contending that they have closed down the business in the year 2009 itself. Plaintiff wanted to produce various invoices made between 1997 to 2003-2004 with regard to the dealings taken between the plaintiff and defendants. These documents have bearing on the adjudication of the dispute between the parties. The Trial Court taking into consideration all these aspects of the matter and the law laid down by the Hon''ble Supreme Court reported in K.K. Velusamy Vs. N. Palanisamy, allowed both the applications. Learned Advocate submitted that there is no infirmity or irregularity in the order passed by the Trial Court and sought for dismissal of the writ petitions.

I have carefully considered the arguments addressed by the learned Advocates appearing for the parties and perused the impugned order and other relevant records.

The records clearly disclose that the plaintiff filed the suit seeking for recovery of money with future interest. The case of the plaintiff is that there was business dealing between the plaintiff and defendants. Though the plaintiff supplied the materials to the defendants, the defendants failed to pay the amount. The defence of the defendants is that though there was a business dealing, they have stopped the business in the year 1997 itself. Therefore, they are not due any amount to the plaintiff. The Manager of the plaintiff was examined as P.W. 1 and got marked the documents as Exs. P1 to P8. The defendant No. 2 was examined on 24.8.2014 and got marked three documents with regard to sales tax assessment certificates of the year 1998 to 31.3.2002 to show that there was no transaction between the plaintiff and defendants and nil returns. When the case was posted for cross-examination of P.W. 1, order to counter the documents produced by the defendants on the advice of Advocate plaintiff filed I.A. Nos. 5 and 6 for reopening and production of documents. The documents sought to be produced are invoices made between the year 1997 to 2003-04 to show that they have supplied the rubber chemicals till 1997. These documents have some bearing on the adjudication of the dispute. The Hon''ble Supreme Court in a judgment referred to above clearly held that power under Section 151 of CPC or Order 18 and Rule 17A of CPC shall be exercised sparingly. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. In the instant case, the Trial Court found that the plaintiff wants to produce some documents which are invoices made in between 1997 to 2003-04 and have bearing on the suit filed by the plaintiff The plaintiff filed the suit seeking for recovery of money. However, the defendants denied the transaction subsequent to the year 1997. In order to prove the case, the plaintiff wanted to produce documents. These documents sought to be produced much prior to the conclusion of trial and have some bearings.

The judgment relied upon by Sri Tharanath Shetty, learned Advocate appearing for the petitioners, is not applicable to the facts of this case. The Hon''ble Supreme Court clearly laid down a law that the power under Order 18 Rule 17 of CPC is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the CPC to expedite trial. In the instant case, the documents sought to be produced by the plaintiff have some bearing and are necessary to prove his case. The documents produced are not to fill up lacuna in the evidence. The Trial Court taking into consideration all these aspects of the matter allowed the applications. I find that there is no infirmity or irregularity in the order passed by the Trial Court. The petitioners have not made out a case to interfere with the same. Accordingly I pass the following:

ORDER

The writ petitions are dismissed.

Since the suit is of the year 2006, the Trial Court is directed to dispose of the suit as expeditiously as possible not later than six months from the date of receipt of the copy of this order.