Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.2736 OF 2019
CNR: MHCC01-007524-2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.2736 OF 2019
IN
S.C. SUIT NO.7778 OF 2000
Ashok Kumar Agarwal .. Plaintiff
V/s.
1. Mr. Ravinder Kumar Agarwal & Ors. .. Defendants
Appearances :-
Adv. Gautam Ankhad with Ms. Prakruti Joshi & Ms. Shrusti Dalal
i/b Dhruve and co. for the plaintiff.
Adv. Aditya Pimple with Sahil Harjani i/b Desai and Dewanji for
Deft nos. 1 to 4 present.
Coram : R. M. Sadrani
Judge, City Civil Court,
Greater Bombay, C.R. No.07.
DATED : 23rd March, 2021.
ORDER
1 Present Notice of Motion is moved by the defendant
No.1 for leave under Order VIII, Rule 1(3) of Code of Civil
Procedure(hereinafter referred to as CPC) for production of
documents as per list Ex.19 filed alongwith affidavit of
examination in chief of defendant No.1. Further, for leave for
leading secondary evidence in respect of the documents at Sr. No.4
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to 6 and 9 of the list Ex.19, dt.22/03/2019.
2 Learned Adv.Aditya Pimple for the defendant No.1
argued that present Notice of Motion is moved due to various
objections raised by the plaintiff on 18/06/2019 at the time of
marking exhibit to the documents of the defendant No.1 below
Ex.19. Adv. for the plaintiff raised objection that those documents
were not produced at the time of filing written statement,
therefore, formal leave of the Court under Order VIII Rule 1(3) of
CPC was not sought for such production. Therefore, he moved
present Notice of Motion for formal leave for the production of
documents. Document at Sr.No.8 was already exhibited. He
submitted that those documents are necessary for final
adjudication of the matter. Defendant No.1 is 79 years old and
due to bonafide mistake, he had not mentioned those documents
in the list of the documents. Present documents are filed just after
the evidence side of the plaintiff is over and at relevant stage. He
requested to allow the Notice of Motion. He placed his reliance on
the following judgments.
1) HCL Ltd V/s. Krishna Nanu Naik and Sons and
Ors. reported in 2005(4) Mh.L.J. 719.
2) Mr. Sebastian Xavier Fernandes and Anr. V/s.
Mrs. Jovita B. Fernandes and 5 Ors. reported in 2015
SCC OnLine Bom 5652.
3 On the contrary, learned Adv. Gautam Ankhad for the
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plaintiff strongly opposed the Notice of Motion. He argued that
those documents are neither referred in the written statement nor
mentioned in the list of the documents with the written statement.
After lapse of 11 years of filing of the written statement, for the
first time, defendant No.1 intends to produce those documents on
record. Further, defendant No.1 has not shown any sufficient
cause for non production of the same at earlier stage and more
particularly, before settlement of issues. Present Notice of Motion
is moved after thought. He requested to dismiss the Notice of
Motion. He placed his reliance on the following judgments.
1) Coromandel International Ltd. V/s. M.V. Glory I &
Ors, Admiralty Suit No.33 of 2010, dt.3rd July 2014.
2) Shri Ramesh Kumar & Anr. V/s. Sangeeta Khanna,
reported in ILR(2014) II Delhi 1106 CM(M).
4 After hearing both the sides, I go through record. Suit
is filed for partition of HUF property of father of the plaintiff and
defendant No.1. As per Ex.19, defendant No.1 wants to produce
following documents.
Sr. No. Particulars of Documents
1 Original share certificate issued by the Jolly
Maker Apartments 1, Premises Cooperative
Society Ltd. dated 6th September 1977.
2 Original receipts issued against payments
made for all expenses with regard to the Jolly
Maker Flat.
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3 Original Ration Card of the Original Plaintiff
4 Copies of the statements of accounts of Anil
Agarwal for the year ending 31st December
1979
5 Copies of the statements of accounts of Ajit
Agarwal for the year ending 31st December
1979 and wealth tax assessment for the year
1990-1991.
6 Copy of my handwritten proposal made to
my father in the year 1990.
7 Originals of 2 colour photographs that were
taken on 8th July 1992.
8 Certified copy of the letter/form dated 17th
August 1992.
9 Copy of the list of jewellery found by income
tax officers in the safe/vault of my father on
24th January 1992.
5 Out of above documents, document at Sr.No.8 is
already exhibited. It is not case of the defendant No.1 that above
documents were not in his knowledge at the time of filing written
statement. However, it is admitted position that above documents
were not referred in the written statement. Defendant No.1 is
seeking leave for production of documents under Order VIII, Rule
1(3) of CPC only on the ground that defendant No.1 is 79 years
old and on account of his old age, some of the documents were not
mentioned in the list of the documents. I go through the written
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statement and list of documents filed with written statement.
Written statement is filed through advocate. List of documents is
also filed by advocate of the defendant No.1 and at that time,
defendant No.1 relied on only five documents. Those are as under.
1. Copy of Writing dated 13/19th April 2002 signed
by the plaintiff and the 20th Defendant as well as
Mandlik Brothers.
2. Copies of letter dt.17th August 1992.
3. Copy of the revised nomination form dated 17th
August 1992.
4. Copy of Affidavit dated 26th November 2007 made
by the defendant No.9.
5. Any other documents with the permission of the
Court.
6 On the basis of the pleading of the parties and
documents, issues are framed and plaintiff adduced his evidence.
Admittedly, there is no reference of the proposed documents in the
written statement, therefore, granting permission for production of
the documents would be surprise to the plaintiff. The document at
Sr.No.3 is original Ration Card of original plaintiff issued by public
authority, however, rest of documents are not public documents so
as it can be presumed that plaintiff should have knowledge of
them. Therefore, defendant No.1 may be permitted to produce
original Ration Card i.e. document at Sr.No.3 as per list Ex.19.
7 I go through judgment cited by the learned advocate
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for the defendant No.1 in the matter of HCL Ltd (supra). In that
matter, defendant produced documents alongwith list, however, no
order was passed on that application and at later stage, defendant
moved application for marking exhibit to the documents which
was allowed. In the present matter, defendant No.1 is seeking
production of document which was neither referred in the written
statement nor relied as per list of documents filed with the written
statement. Therefore, facts of the cited judgment are totally
different and not applicable to the facts of the present case. In the
matter of Mr.Sebastian Xavier Fernandes(supra), Trial Court
allowed production of documents to the defendant as those
documents are in the nature of public documents. In the present
matter, none of the documents are public documents except
document at Sr.No.3 i.e. Ratio Card of original plaintiff issued by
public authority. Therefore, to the extent of Ration Card, Notice of
Motion can be allowed.
8 I also go through judgment cited by the plaintiff in the
matter of Coromandel International Ltd.(supra). In this matter,
plaintiff applied for permission for production of 156 documents.
At the time of filing the suit, plaintiff relied on only 21 documents
out of those 156 documents. Our Hon’ble High Court in paragraph
No.11 of this cited judgment observed as under.
“11 Therefore, it cannot be disputed that if the
plaintiff fails to mention the documents in the list
annexed to the plaint and place the originals and a
copy on record of such documents which are
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required to be produced with the plaint, the plaintiff
is not entitled to produce any additional document
thereafter except with the leave of the Court. The
freedom that the parties, i.e., the plaintiff and the
defendants had pre-2002 amendment, to produce all
documentary evidence of every description or
possession of their power on which they intend to
rely and which has not already been filed in Court is
no more available post-amendment. Under the old
Order VII, Rule 1(2) of CPC, it says ‘where he sues
on any document in his possession, he shall deliver
the same in plaint and those not in his possession,
he shall enter the same in a list to be annexed to the
plaint’. Under the old Order XIII, Rule 1, parties
could produce all the documentary evidence, on
which they intended to rely and which has not been
filed in the court, at or before the settlement of
issues. The amended Order XIII, Rule 1 says “….
where copies thereof have been filed along with the
plaint or written statement”. The words were not
there pre-amendment. Therefore, the parties were
permitted to produce those missed out documents by
filing an affidavit of documents before or at the time
of settlement of issues. That freedom, as it appears
from the Commentary by Mulla on the Code of Civil
Procedure (18th Edition), 2011, to file documents in
evidence at any subsequent stage of the suit stand
curtailed and this has been done to expedite the
hearing of the suit and also bar the litigants from
taking the other party by surprise. Post amendment,
it would appear, even the discretion the Court
exercised relating to time when the original
documents have to be filed in a case is not left. It
makes the parties and pleaders to produce their
original documents at the time the plaint is filed and
only those documents the originals whereof could
not be filed with the plaint and copies were filed,
could be filed on or before the settlement of issues.
Or else at the time of the hearing, leave of the Court
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has to be obtained to produce further documents.”
9 On this cited judgment, advocate for the defendant
No.1 argued that in paragraph No.22 of this judgment, it is
observed by our Hon’ble High Court that leave for production of
documents to reduce multiplicity of proceedings and avoid delay
can be applied under Order XVIII Rule 4 of CPC. In the present
matter, defendant No.1 moved the present Notice of Motion at the
time of his evidence. Therefore, he requested such leave be
granted. Considering the issue raised by parties, in my opinion,
guidelines given in Para No.15 of this judgment are relevant. Para
Nos.15 and 22 are reproduced for ready reference.
“
15 The Court also says that nothing prevents the
Court in its discretion to grant leave subsequent to the
documents being produced before the Court even
though such documents were not annexed to plaint or
included in the list annexed to the plaint and no
pedantic approach should be adopted. At the same
time, this Court also says it would depend on the facts
of each case and the order of the Court in that regard
will be speaking and reasoned order. The Court cannot
give a speaking and reasoned order unless an
application is made for leave to produce such
documents that were not presented with the plaint or
entered in the list annexed to the plaint. Therefore,
the plaintiff will have to apply explaining as to why
these documents were not annexed to the plaint or
included in the list of documents and why leave
should be granted. It is not for the defendants, as
submitted by Mr. Rajasekhar, to take out an
application explaining what prejudice will be caused
if the document is accepted in evidence.
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22 In the circumstances, if the plaintiff wishes to
rely upon any document other than the 21 documents
that were produced at the time of arrest of the 1st
defendant vessel and additional 135 documents
referred to in the affidavit of documents, the plaintiff
may apply if so advised. Such leave can be applied
for, to reduce multiplicity of proceedings and to avoid
delay in beginning of trial, in the affidavit of evidence
itself filed under Order XVIII, Rule 4 of CPC.”
10 In view of guidelines given in paragraph No.15 quoted
above, the defendant No.1 is incumbent to explain as to why those
documents were not annexed with the written statement or
included in the list of documents and why leave should be granted.
In the present matter, defendant No.1 in his Notice of Motion has
not set out any circumstances to consider to grant such leave.
Further, there is vague prayer in the Notice of Motion that
defendant No.1 be permitted to adduce secondary evidence in
respect of documents at Sr.No.4 to 6 and 9 in the list Ex.19
without setting the ground for leading secondary evidence.
Further, evidence without pleadings has no value. Therefore,
considering the guidelines given in the above cited judgment and
relied by both the parties, in my opinion, defendant No.1 is not
entitled for production of documents except document at Sr.No.3
i.e. Ration Card of the original plaintiff. Hence, I pass following
order.
ORDER
1 Notice of Motion No.2736 of 2019 is hereby partly
allowed.
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2 Defendant No.1 is permitted to produce document at
Sr.No.3 of list of documents Ex.19 i.e. original Ration Card of the
original plaintiff.
3 Notice of Motion is disposed off accordingly.
(R. M. Sadrani)
Judge,
City Civil and Sessions Court,
Dated : 23/03/2021. Greater Bombay.
Dictated on :23/03/2021.
Transcribed on :23/03/2021.
Signed on :24/03/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.
UPLOADED ON: 24/03/2021.
(Santosh B. Sawant)
(Selection Grade Stenographer)
Name of the Judge(with Court Room
No.)
Shri. R. M. Sadrani, Judge, C.R.No.07.
Date of pronouncement of
Judgment /Order
23/03/2021.
Judgment/Order signed by P.O. on 24/03/2021.
Judgment/Order uploaded on 24/03/2021.
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