Thayyal and Another vs Baggyathammal and Another

Mack, J.—The petitioners are defendants 1 and 2 in O.S. No. 6 of 1948 on the file of the District Court, West Tanjore. They seek to revise

the order of the District Judge on an application they filed to excuse delay in filing 19 documents. The learned District Judge excused the delay in

the case of 11 documents as regards which there was no opposition from the plaintiff; but he declined to excuse the delay in the case of 8

documents, namely, Nos. 12 to 19 on the list. His order is a very brief one and reads as follows:

The counter-petitioner does not oppose so far as items 1 to 11 are concerned. I have heard the pleader for the petitioner. I do not consider that

the petitioners have made out sufficient grounds for the admission of documents at such a late stage. I admit items 1 to 11 and dismiss the petition

for the rest.

The relevant facts are these : Issues were framed on 15th September, 1948, and time was given for the filing of documents till 18th October,

1948. This was done under Rule 62 of the Civil Rules of Practice read with Order 13, Rule 1 which ordinarily requires the parties to produce all

their documentary evidence at the first hearing of the suit. Time was extended till 2nd November, 1948. The present application was filed on 29th

November, 1948, 27 days after the expiry of the time fixed. Ordinarily, an order refusing to condone the delay in filing a document is not one

which is interfered with in revision.

Mr. Ramachandra Aiyar for the petitioners contends however that the lower Court has adopted an arbitrary selection made by the first

respondent as regards what documents should be admitted and what documents should be excluded. He suggests that documents which militate

against the plaintiff''s case are being objected to and that there is no real differentiation in legal principle which is apparent from the list of

documents filed. Mr. Rajagopala Aiyangar for the respondent urges that there was no opposition only to public documents into which category

most of the items 1 to 11 fall. I have perused the list of documents and there are certainly some documents amongst those admitted which do not

fall into this category. Amongst the documents excluded are also some certified copies. One general reason was given in the affidavit in support of

the application to the effect that some of these documents were found in a search of old papers and also time was taken to obtain certified copies.

I am quite unable to see any ground for any discrimination between the items admitted and the items excluded. The learned District Judge should

not have merely condoned the delay as regards the documents to which there was no opposition, but should have given his attention, before

excluding the other documents altogether, to their real nature. It is difficult to hold in the circumstances that the differentiation was made in the

exercise of judicial discretion, the order exposing itself to the criticism of a rather arbitrary selection made by the respondent and adopted by the

learned District Judge. It may be that one or more of the documents excluded may be found to be very material to the petitioner''s case.

In Gopika Raman Roy v. Atal Singh (1929) 56 M.L.J. 562 : L.R. 56 IndAp 119 : ILR 56 Cal. 1003 (P.C), their Lordships of the Privy Council

considered the rule of exclusion of documentary evidence under Order 13 (1)of the CPC observing that it only comes into operation when the:

documents on which the parties rely should have been, but were not produced at the first hearing. In the present case the affidavit gives reasons

why the documents could not have been produced at the first hearing. Their Lordships also made the following observation:

Further as has been held in India, even where the rules of exclusion apply and the documents cannot be filed without the leave of the Court, that

leave should not ordinarily be refused where the-documents are official records of undoubted authenticity which may assist the Court to decide

rightly the issues before it.

In the matter of certified copies of official documents it is usual to apply Rule 62 with reasonable laxity and give parties time to get these copies in

view of the possibility of delay. In this case the delay has not been very serious, only 27 days-1 do not think it is necessary to remand the

application to the lower Court for a considered order as regards the grounds of its differentiation between documents 1 to 11 and documents 12 to

I direct that the delay in. filing all these documents be condoned. All the documents may be admitted in evidence subject to proof and

relevancy.

The revision petition is allowed with costs.