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IN THE GAUHATI HIGH COURT

(The High Court of Assam, Nagaland, Meghalaya, Manipur,
Tripura, Mizoram and Arunachal Pradesh)

CRP 144 of 2011

1. The Central Training Institute

Civil Defence & Home Guards,
Assam Panikhaiti,
Guwahati-26
(to be represented by its Principal)

2. The Principal,
The Central Training Institute
Civil Defence & Home Guards,
Assam Panikhaiti,
Guwahati-26
…….. Petitioners

Versus

1. National Boards Employees Union,

represented by its General Secretary,
Sri Dilip Nath,
Panikhaiti
Guwahati-781026

2. Sri Dilip Nath

Son of Lt. Sarat Chandra Nath
resident of Panikhaiti
P.S. Pragjyotishpur,
Guwahati-781026
District- Kamrup (Metor), Assam.

….. Respondents.
BEFORE
HON’BLE MR. JUSTICE S. TALAPATRA

For the petitioners :    Mr. B. Chakraborty, Advocate.

For the respondents : Mr. N.N. Jha, Advocate.

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Date of hearing : 02.08.2012

Date of delivery
of judgment & order : 10.08.2012
   

JUDGMENT & ORDER

This is a petition filed under Article 227 of the Constitution of

India against the order dated 17.03.2011 passed by the Munsiff No.2,

Kamrup, Guwahati in Title Suit NO. 198 of 2009.

2. The impugned order as passed by the Munsiff No.2,

Kamrup, Guwahati, the prayer of the defendant No.5 and 6, in the

Title Suit No.198 of 2009 for leave to produce some documents,

marked by them as Exbt.B, Exbt.C, Exbt.D & Exbt.E was rejected.

The petitioners made attempt to explain the non production in the

appropriate stage by stating that the Principal, Central Training

Institute, Civil Defence & Home Guards i.e. the defendant No.6

could not locate documents. Therefore, when those documents on

discovery were handed over to the counsel along with the

examination-in-chief under Order XVIII Rule 4 of the C.P.C. The

Munsiff No.2, Kamrup, Guwahati held that the defendants had not

filed the documents marked as Exbt.B,C,D & E along with the

pleadings. Even the defendant No.5 & 6 did not seek any leave of

the Court to allow them to introduce those documents and as such

those documents were not received in the records but one

document as marked Exbt.A was received, for the reason that the
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said document came into being in the pendency of the suit and the

defendants obviously could not have produced it. As such the four

documents were not received in the records. In the said order, it

is recorded that those documents were not accepted for filing

without seeking leave of the Court. The defendant No.5 & 6

thereafter filed a petition under Order VIII Rule 1A read with

Section 151 of the C.P.C. seeking leave for filing the documents

i.e. B, C, D & E stating interalia that the respondent No.6 had

assumed the office in the month of May, 2000. He was not abreast

of the progress of the case and accordingly in a belated stage

those documents were filed. The former Principal had retired after

filing of the Witten Statement and there was a dislocation in the

administration. On discovery of the documents, the respondent

No.6 placed those documents for production in the Court. It is

further stated that if those documents were not allowed to

produce in the records, it would cause miscarriage of justice.

3. Mr. B. Chakraborty, learned counsel appearing for the

petitioners submitted that the impugned order has been passed by

the Munsiff No.2, Kamrup mechanically, not considering the aspect

that those documents would enable the Court in determining the

real question in the controversy between the parties. The due

diligence shall not come in the way of accepting the documents in

view of the circumstances as narrated in the petition. Learned

counsel for the petitioners also submitted that in the Written

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Statement the references of the documents have been elaborately

made, but those were not catalogued as required. He submitted

that the provisions of order VIII Rule 1-A of the C.P.C provide that

“where the defendant bases his defence upon a

document or relies upon any document in his
possession or power, in support of his defence or
claim for set-off or counter-claim, he shall enter such
document in a list, larger interest of the force and
shall produce it in Court when the written statement
is presented by him and shall, at the same time,
deliver the document and a copy thereof, to be filed
with the written statement.”

The said provisions cannot be read as mandatory,

rather it has to be constructed as directory in nature and for that

purpose by the Code of Civil Procedure(Amendment Act), 2002.

Rule 3-A of Order VIII of the C.P.C. has been engrafted.

“ (3)A document which ought to be produced in

Court by the defendant under this rule, but, is not so
produced shall not, without the leave of the Court, be
received in evidence on his behalf at the hearing of
the suit.”

4. On scrutiny of the grounds such leave for receiving the

documents in the records was not considered. The documents not

filed earlier or not catalogued in the Written Statement cannot be

allowed to form the part of the records. The fundamental principle

which is required to be taken care of is the element of prejudice to

the other side.

In support of his contention Mr. B. Chakraborty,

learned counsel for the petitioners relied on a decision in Zolba

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Vs. Keshao & Others as reported in (2008) 11 SCC 769 where

the Apex Court held that :

“14. In Salem Advocate Bar Assn. V. Union of

India (2005) 6 SCC 344 it has been clearly held that
the provisions including the proviso to order 8 Rule 1
CPC are not mandatory but directory. It has been held
in that decision that the delay can be condoned and
the written statement can be accepted even after the
expiry of 90 days from the date of service of summons
in exceptionally hard cases. It has also been held in
that decision that the use of the work ‘shall’ in Order
8 Rule 1 CPC by itself is not conclusive to determine
whether the provision is mandatory or directory. The
use of the work ‘shall’ is ordinarily indicative of
mandatory nature of the provision but having regard
to the decision in that case, the same can be
construed as directory.”

It has been further held in the said decision that:

“it cannot also be forgotten that in an

adversarial system, no party should ordinarily be
denied the opportunity in participating in the process
of justice dispensation.”

5. Mr. B. Chakraborty, learned counsel for the petitioners

further submits that for purpose of leave ‘sufficient cause’ should

be construed as to serve the ends of justice. To buttress his

contention, a decision of the High Court of Andhra Pradesh in

Kancherla Saradha Devi Vs. Saripella Sivaramaraju & others

reported in AIR 1995 A.P 291, the Andhra Pradesh High Court

held that:

“7. In addition to the legal implication stated

above, this court feels that they may be further
amplified. In the nature of the true implication of
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order 13, Rules 1 and 2 of C.P.C. the work ‘shall’ used

therein may be difficult to be read as mandatory. In
the Code of Civil Procedure there are various stages at
which documents can be produced for the perusal of
the Court and for various other purposes.”

Finally, the said decision concluded that if it is found

that an order of refusing the leave to receive the documents would

occasion of failure of justice or cause irreparable injury against

him. It was made that such order should be allowed to stay.

6. Similarly, the Madrass High Court in S. Mahimaidoss

Vs. Vanathayya & Others reported in AIR 2000 Mad.289 held

that:

“Order 13 Rule 4 speaks about

documentary evidence to be produced at or
before the settlement of issues and Rule 2
speaks about effect of non-production of
documents.

Order XIII- Rule 1. Documentary evidence

to be produced at or before the settlement of
issues (1) The parties or their pleaders shall
produce at or before the settlement of issues, al
the documentary evidence of every description
in their possession or power, on which they
intended to rely, and which has not already been
filed in Court, and all documents which the Court
has ordered to be produced.

(2) The Court shall receive the documents

so produced: Provided that they are
accompanied by an accurate list thereof
prepared in such form as the High Court directs.

(2) Effect of non-production of documents:

(1) no documentary evidence in the

possession or power of any party which should
have been but has not been produced in
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accordance with the requirements of Rule 1 shall

be received at any subsequent stage of the
proceedings unless good cause is shown to the
satisfaction of the Court for the non-production
thereof and the Court receiving any such
evidence shall record the reasons for so doing.

(2) Nothing in sub-rule (1) shall apply to

document,

(a) produced for the cross-examination of

the witnesses of the other party, or

(b) handed over to a witness merely to

refresh his memory.

As per Rule, 2 unless good cause is shown

to the satisfaction of the Court for non-
production of a particular document, the party
cannot be permitted to file any document at a
later date after settling of issues. Here, we have
to consider whether the petitioner herein had
furnished good cause for non-production of
documents in time or not. I have already stated
that necessary averments had been made in Para
7 of the written statement regarding the legal
notice of the plaintiff dated 29.04.1977.
Admittedly, the plaintiff did not file reply
statement disputing the said averment made in
the written statement. No doubt, PW-1 was
examined and closed his evidence. However, 2nd
defendant is yet to be examined. In such a
circumstances I am of the view that the
petitioner herein has made out a case for
reception of the list of documents. Even if the
said document is marked through the 2nd
defendant, it is open to the first respondent-
plaintiff to cross-examine him regarding the said
document. The said opportunity is available to
him even now.”

7. Mr. B. Chakraborty, learned counsel for the petitioners

further submits that the provisions of Order XIII Rule 1 & 2 are

almost similar to the provisions of Order VIII Rule 1 of the C.P.C.

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Hence the principle as laid down for Order XIII Rule 1 and 2 of the

C.P.C can be applied to the provisions of Order VIII, Rule 1 of

C.P.C. He also referred a decision of Orissa High Court in Bhikari

Charan Patra Vs. Basanti Bewa and others as reported in

AIR 1985 Orissa 49 where it has been held that

“8. The technical ground on which the learned

Munsif has rejected the petition is not
sustainable. The learned Munsif rejected the first
petition as no particulars showing good cause to
the satisfaction of the Court for the late filing
had been furnished in the petition. The rejection
was, therefore, not on merits, i.e. after taking
the cause shown into consideration and holding
the same unsatisfactory. The rejection was not
due to the learned Munsif not being satisfied
with the cause shown. The second petition with
reasons was therefore maintainable.”

This decision has been referred for obvious purpose

that even if by the order dated 17.03.2011, the trial Court stated

that for absence of any petition seeking leave the documents

cannot be received. The said order dated 17.03.2011 cannot

create any bar in filing the subsequent petition by the defendants

No.5 and 6 seeking leave to file the same documents.

8. Mr. B. Chakraborty, learned counsel appearing for the

petitioners submitted that the reasons assigned for rejecting the

prayer for leave to receive the documents is not based on the

principles of natural justice. The trial Court has failed to measure

up the consequences of the said order. If the said order is allowed

to stay, it would cause the miscarriage of justice.

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9. On the other hand, Mr. N.N. Jha, learned counsel

appearing for the respondents submitted that it cannot be

believed that respondent No.6 being the party in the suit and

documents having been in his custody could not produce those

documents at the time of filing the Written Statement. Such

conduct only creates serious suspicion to impounding of

documents and causes an adverse impact on the judicial

proceeding. He submitted that the defendants No.5 & 6 with an

oblique purpose did not deposit the documents so as to deprive

the plaintiffs from giving the proper evidence of rebuttal, so far

the contents of those documents are concerned. He further

submitted that after the documents are filed, the plaintiffs got a

right to inspect those documents and to insist the Court for

framing the appropriate issues. Moreover, the petitioner has got

right to lead the evidence on consideration of the records. Belated

acceptance of the documents would deprive the plaintiffs of those

rights as safeguarded by the procedural law.

In support of his contention Mr. N. N. Jha, leaned

counsel relied on a decision of this Court in Nepal Das & Another

Vs. Aditi Deori and Others as reported in 2011(2) GLT 336

where this Court held as under :

“51. When the question of leave arises, the

Court has to see that the purpose of producing
the documents at the pre-trial stage is not
defeated. The leave has to be, therefore, granted
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bearing in mind the three conditions precedents,

namely, (i) the petitioner must disclose whether
the document, sought to be introduced, was in
his ‘possession or power’ or not at the time of
presentation of the plaint; (ii) In either case,
whether the document was in his ‘possession or
power’ or not, the reasons, why the documents
was not produced along with the plaint, or
reasons why the document was not entered in
the list, as the case may be; and (iii) why it was
not disclosed, at the time of the presentation of
the plaint as to where the document and how he
has come to know in whose ‘possession or
power’ the document is or was.

52. The reasons for granting leave may vary

from case to case; hence, no formula can be laid
down on the principles on which the leave is to
be granted. The granting of leave would depend
on the given set of facts and circumstances in a
case. Consequences of not filing of documents,
where pleadings are presented without any list
of documents as well as fall out of documents
not being filed on or before settlement of issues
and when production of document is not sought.

10. Mr. N.N. Jha, learned counsel appearing for the

respondents further submitted that the contingencies has been

formulated in the said decision. Nobody can escape the rigours of

the procedural law which are designed to ensure the justice. This

Court finds that the following documents were sought to be

introduced in the proceeding by the defendants No. 5 & 6 :

(i) Certified copy of the revenue authorities

showing allotment of land to defendants (petitioners);
(Exhibit-B).

(ii) File No.CTI204/97 in original along with

the copy of the letter dated 01.09.1981 showing
handing over land on 21.05.1981; (Exhibit-C).

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(iiii) Communication dated 15.12.1987 as made

to Director General Home Guards, Assam of function
of the CTI; (Exhibit-D).

(iv) Certified copy of the Writ Petition (C)

No.4850/08(Exhibit-E).

11. It appears that all the documents are in the nature of

the public documents within the meaning of Section 74 of the

Evidence Act. No doubt, the leave petition does not all the time

persuade to grant leave unless the causes are demonstrated

satisfactorily. The defendants No. 5 & 6 have committed latches

by not giving the catalogue of documents in the Written

Statement or by a separate sheet even though there is references

of those documents in the Written Statement but mere reference

cannot be treated sufficient. A catalogue of documents is either to

be incorporated in the Written Statement or be produced along

with Written Statement. If the documents are not available, in

that case the defendants must indicate in the Written Statement

about the possible custody for compelling production by the Court.

It appears that even after hearing, those documents were not

introduced whereas the law has created a deadline for production

of all the documents by the parties. On consideration of the nature

of the documents and the explanation that was provided that the

documents could not be filed before the settlement of the issues

for change of the head of the institute namely, the Principal,

Central Training Institute (CIT) cannot be discarded on the face.

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But to balance with the interest of justice, the Court is bound to

be liberal for achieving the ends of justice. As such the 4(four)

documents as marked by the defendants No.5 & 6 as Exbt.B,

Exbt.C, Exbt.D & Exbt.E shall be allowed to be introduced in the

evidence by the defendants No.5 & 6 subject to condition that the

defendant-petitioners shall pay a cost of Rs.10,000/- to the

plaintiff-petitioner within a period of 15 days from today and for

that purpose leave is granted to the defendant-petitioners No.5

& 6 under Order VIII Rule 3A of the C.P.C.

It is further directed that if the plaintiff-respondents

intend to re-examine their witnesses in view of the documents as

allowed to be introduced in the records, the trial Court shall allow

them the said opportunity. If the cost is not paid within 15 days,

the trial court shall proceed with the suit in accordance with law

without receiving those documents Exbt.B, Exbt.C, Exbt.D &

Exbt.E in the records.

For the aforesaid reasons, the petition stands allowed.

JUDGE

Sujay

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