This order will dispose of the following seven applications all moved on behalf of United Bank Limited, plaintiff in both the suits Suit No. 141 of 1976
(i) C. M. A. 4804/78.-Application dated 26-11-78 under section 148, C. P. C. For allowing the filing of ten additional documents which were filed alongwith the said application.
(ii) C. M. A. 1084/79.-Application under sections 148 and 151, C. P. C. Filed as a matter of abundant caution for extension of time for filing documents which had been filed on 22-3-78 and for extension of time till 26-11-78 when additional documents were filed.
(iii) C. M. A. 1085/79.-Application under Order XLVII, rule 1, sections 114 and 151, C. P. C. Seeking a review of the order dated 28-2-79 whereby it was ordered that the plaintiff should pay costs of Rs.
200 to each Advocate of the two defendants.
(iv) C. M. A. 2390/80.-Application under Order XIII, rule 2, sec--tions 148 and 151, C. P. C. Filed as a matter of abundant caution, to permit the plaintiff to produce the documents which had not been admitted by the defendants out of the documents filed by the plain--tiff in Court on 22-3-78, as well as the documents filed with C: M. A. 4804/79.
Suit No. 142 of 1976
(i) C. M. A. 1258/78.-Application under section 148, C. P. C. Dated 22-3-1978 praying for condonation of delay in filing documents which were filed alongwith this application in Court.
(if) C. M. A. 874/79.-Application under sections 148 and 151, C. P. C. Filed in Court on 24-2-1979 for allowing the filing of additional documents which were filed alongwith the said application with a list.
(iii) C. M. A. 2388/80.-Application under Order XIII, rule 2, sec--tions 148 and 151, C. P. C., filed as a matter of abundant caution pray--ing that the plaintiff be permitted to produce the documents not admitted by the defendants out of the documents filed on 22-3-1978, as well as the documents filed alongwith C. M. A. 874/79.
2. 1 have heard at length Mf. Mansoorul Arfin, Advocate for the plaintiff, Mr. Badrudduja, Advocate for Defendant No. 1 and Mr. Aziz Qureshi, Advocate for defendant No. 2 in both the suits. In order to appreciate the respective contentions raised and arguments advanced by learned counsel, it is necessary to give a short history of the two cases which includes the different stages through which these cases had travelled and which led to the moving of the aforesaid seven applications by the plaintiff.
3. In Suit No. 141/76 the plaintiff is United Bank Ltd. With Shabbir Ahmad Abbasi as defendant No. 1 and James Pinto as defendant No. 2. This suit has been filed for the recovery of Rs. 8,60,235.89.
According to the plaint the Defendant No. 1 opened an account with a branch of the plaintiff-Bank and at the relevant time defendant No. 2 was the Manager of the said branch. The plaintiff has alleged that the defendants conspired among themselves whereby the defendant No. 2 allowed huge advances to defendant No. 1 beyond his powers as well as against the rules and regulations of the State Bank of Pakistan and without obtaining any security whatsoever. The methods employed by the defendant, according to the allegations of the plaintiff, are mentioned in pares. 3 and 4 of the plaint and the same are reproduced here :- "(3) That the modes employed by the defendants were :-
(i) that the defendant No. 1 would draw a cheque for a particular amount on his account maintained at Banks Bohri Bazar Branch generally in favour of the plaintiff which he will deliver to the defendant No. 2 who would issue and deliver to the defendant No. 1 a Pay Order for the amount of the cheque. The defendant No. 2 would not debit the cheque so drawn in the ledger of the Defendant No. 1 at the time of issuing the pay orders. However, he would debit the account of the defendant No. 1 only when the pay orders were presented for payment to the Branch by the beneficiary thereof;
(ii) that the defendant No. 2 unauthorisedly debited the account of various parties by various amounts and gave unauthorised credits to the defendant No. l with these amounts.
(4) That in order to conceal the advances mentioned above, the defendant No. 2 also falsified or caused to be falsified the books of account of the plaintiff/Bank amongst other acts by nothing the wrong balances in the ledger of the defendant No. 1."
4. It is then averred in the plaint that in September, 1975 during normal inspection carried out of the said branch, the aforesaid acts of omission and commission came to the knowledge of the plaintiff-Bank and in spite of the plaintiff's specific instructions to defendant No. 2 not to allow any advances without prior authority of the plaintiff's Head Office, defendant No. 2 continued to cause losses to the plaintiff by granting advances in huge amounts to Defendant No. 1. According to the plaint on account of defendant No. 2 having allowed advances to defendant No. 1 a sum of Rs.
8,71,017.73 was standing to the debit of defendant No. 1 and out of this amount after great efforts on the part of the plaintiff, defendant No. I paid only a sum of Rs. 35,500 and on the date of the filing of the suit a sum of Rs. 8,60,234.89 including interest was due for which plaintiff has claimed a decree jointly and severally against the defendants.
5. The facts in Suit No. 142/76 are somewhat similar: Plaintiff and defendant No. 2 are the same but Defendant No. 1 is one Taj Muhammad Abbasi. In the plaint in this suit more or less similar allegations have been made and an amount of Rs. 6,92,44,77.04 has been claimed jointly and severally against the defendant No. 2.
6. Both the suits were filed in this Court on 24-2-1976 without any documents. After the verification on solemn affirmation of the plaint by the principal officers and attorneys of the plaintiff, reference is made about documents filed and documents relied upon in each of the two cases in the following words :- "Documents Filed:-Nil Documents relied upon.-Cheques, vouchers, pay orders, books of accounts and correspondence."
7. After summons had been served notices under Order XI, rule 16, C. P. C. Were addressed on behalf of defendant No: 1 in each of the suits by his advocate to the Advocate of the plaintiff to give inspection of the documents in order to ascertain the correct position. This inspection was refused by the plaintiff through their advocate's letter dated 28-5-1976. One of .The main objections raised on behalf of defendant No. 1 against the various applications moved on behalf of the plaintiff, is based on Order XI, rules 15 and 16, C. P. C. Which are reproduced here :- "(15) Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his Pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at "liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit."
(16) Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No. 7 in Appendix C, with such variations as circumstances may require."
8. Written statements were filed by defendant No. 1 in both suits on 11-8-1976 and in para. 13 of the Written Statements a specific plea was taken with reference to notice under Order XI, rule 16, C. P. C.
Dated 9-3-1976 to the effect that the plaintiff was debarred from producing the docu--ments of which inspection was asked for. Para. 13 of the Written State--ments on behalf of defendant No. I in both the suits are identical and the same is reproduced here :-- "13. Plaintiff has not filed the statement of accounts or any other - documents with the plaint. Notice under Order XI, rule 16, C. P. C. Dated 9-3-1976 was served upon the learned Advocate for the plaintiff bank to give inspection of the documents in order to ascertain the correct position. This inspection was refused by the learned Advocate for the plaintiff by their Letter No. HC-S-141-76-381 dated 28-5-1976. The "plaintiff is debarred from producing the documents of which the inspection was asked for."
9. Applications were moved before the Additional Registrar by the parties under Order XI, rule 12, C.
P. C. And the Additional Registrar passed orders for filing of affidavits of documents by the parties.
On several dates before the Additional Registrar time was sought by both parties for filing of affidavit of documents. The reason given on behalf of the plaintiff on one occasion for not being able to file the affidavit of documents in time was that the documents were being traced and on another occasion the ground given was that the list of documents had not been received by the Advocate from the Plaintiff. Neither the plaintiff nor the defendants filed any affidavit of documents and in the circumstances the Additional Registrar by his order dated 12-12-1977 closed the directions. The two suits then came up for settlement of issues and by order dated 14-1-1978 this Court settled the issues in both the suits. It was further ordered on 14-1-1978 that documents and applications for commission, if any, be filed within one month and both the cases were fixed for final hearing on 23-2-1978. The order sheet of 19-3-1978 shows that the cases were fixed for evidence but request was made for an adjourament on behalf of the plaintiff on the ground that the plaintiff could not file the documents. Advocates appearing on behalf of defendant No. 1 as well as defendant No. 2 stated that they had no objection and the case then was adjourned to a date in office. I may observe here that, on 23-2-1978 certain documents were filed in each of the two suits by the plaintiff. In Suit No. 141 /76 there is on record a list of documents filed by the plaintiff but the application under section 148, C. P. C. Was not traceable on record. However, in Suit No. 142/76 C. M.
A. 1258/79 was filed with the list of documents as well as documents on 22-3-1978 under section 148, C. P. C. Then there is an order dated 3-5-1978 on which date the case was fixed for evidence but was adjourned to a date in office in the month of August, 1978 as requested by both the learned counsel on the ground that counsel for defendant No. I was examining the accounts and he needed some more time to point out errors, if any, in the accounts.
10. On 27-9-1978 the case was fixed again for evidence but was adjourned at the request of the counsel for the plaintiff to a date in office. It was also mentioned in the order dated 27-9-1978 that in the meantime it had been agreed between. The parties that in order to curtail evidence, defendant's counsel would examine the statement of account and point out the items to which defendant objects but this would be without prejudice to the objections raised by the defendant's counsel.
11. In the order dated 30-10-1978 in Suit No. 141/76 it is observed that the Advocate for defendant No. 1 had admitted 25 cheques, 14 pay orders and 14 vouchers out of the documents filed on 22-3-1978 and by consent these admitted documents were brought on record as Exhs. 6 to 58. It is then observed that on court's question as to which entries in the statement of account the defen--dant had objection, counsel for defendant No. 1 stated that his client was checking the accounts and he be granted 'two weeks tune for this purpose. Advocate for the plaintiff objected on the ground that already the defendant No. I had six months time to check the accounts but as the Court had no time to record the evidence the hearing was adjourned but it was ordered that counsel for defendant No. 1 would inform counsel for the plaintiff at least one week before the next date of hearing about the entries in the statement of accounts his client was disputing so that on the next date of hearing the plaintiff may bring the evidence to prove the entries in question. In Suit No. 142/76, fifty documents were admitted by defendant No. 1 out of the list of documents filed by the plaintiff on 22-3-1978 and the same were taken on record as Exhs. 6 to 55.
12. Suit No. 141/76 was fixed then on 28-11-1978 when it was adjourned and there was an application under section 148, C. P. C. Praying for extension of time for filing list of witnesses on behalf of the plaintiff to which no objection was endorsed by the counsel for the defendants. Suit No. 142/76 was also adjourned with Suit No. 141/76. However, in the orders dated 28-11-1978 in both suits it was observed that Advocate for defendant No. L requested two weeks more time to point out what entries, if any, in the statement of accounts the defendant was questioning. The cases then came up on 22-1-1979 when office had pointed out that Advocate for defendant No. L had not complied with the order dated 28-I1-1978 passed in Suit No. 141/76 in so far as it required pointing out of any disputed entries in the statement of accounts. It was observed by the Court that the learned counsel for defendant No. 1 stated that he did not want to point out any such entries. Both the suits were fixed for evidence on 5-2-1979 when the hearing was adjourned by consent of ail the learned counsel.
13. On 28-2-1979 the cases were fixed for evidence and in Suit No. 141/76 the evidence started with the examination-in-chief of P. W.
1. During his examination-in-chief counsel for the plaintiff wanted to produce certain documents and the statement of accounts. At this stage an objection was raised in Suit No. 141/76 that no documents were filed with the plaint as required under Order VII, rule 14(2), C. P. C. Filed with the plaint. Learned counsel for defendant No. 1 relied upon para. 13 of the written statement. It was further pointed out that no affidavit of documents had been filed by the plaintiff. Counsel for plaintiff argued that issues had been framed on 14-1-1978 when one month's time for filing of documents was granted and, therefore, procedural defect if any regarding non- filing of documents which may have occurred earlier stood cured. The court further observed that documents were filed beyond one month's time granted by this Court on 14-1-1978 and there was no application for extension of time moved by the plaintiff in Suit No. 141,176. The Court, therefore, observed that the objection was well taken and in the circumstances the documents could not be accepted without a proper application giving sufficient reason for non-production of the docu-- ments as required under Order XIII, rule 2, C. P. C. The remaining portion of the order dated 28-2- 1979 in Suit No. 141/76 is as follows :- .
"Mr. Mansoorul Arfin requested for time for making an application. It would not be fair to shut out the evidence on the ground of techni--calities and, therefore, I would grant time to the plaintiff for making a proper application which will be considered on its own merits. The request for adjournment is opposed by the learned counsel for defendants and in the circumstances, I would adjourn the hearing on payment of costs of Rs. 200 to each of the defendants."
14. In Suit No. 142/76 when the case came up for evidence on 28-2-1979 there was C. M. A. 874/79 already fixed for hearing which was opposed by the counsel for the defendant who requested for time for filing affidavits as sufficient time had not been given to them for the purpose. The case was, therefore, adjourned. Thereafter other applications mentioned in para. (1) of this order were moved on behalf of the plaintiff:
15. Before I consider the other applications, I would refer here to some of the provisions of the Civil Procedure Code to which reference has been made or on which reliance has been placed by one or the other counsel appearing in this case. I have already reproduced Order XI. Rules 15 and 16, C.
P. C. I may further here reproduce Order XI, rules 18 and 21, C. P. C.
"18.-(1) Where the party served with notice under rule 15 omits to give such notice of time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his Pleader, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit: Provided that the order shall not be made when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.
(2) Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents shall be founded upon an affidavit showing of what documents inspec-- petition is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.
21. Where any party fails to comply with any order to answer inter--rogatories, or for discovery or inspection of documents. He shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for anorder to that effect, and an order maybe made accordingly."
16. Other provisions to which reference has been made are Order X111, rules 1 and 2 and Order VII, rule 14, rule 17 and rule 18, C. P. C. Which are reproduced here :- Order XIII "1.--(1) The parties or their Pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to reply, 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. No documentary evidence in the possession or power of any party which should have been but has not been produced in 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."
Order VII "14.--(1) Where a plaintiff' sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
(2) Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint."
17.-(1) Save in so far as is otherwise provided by the Banker's Books Evidence Act, 1891, where the document on which the plaintiff sues is an entry in a shop book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies.
(2) The Court, or such Officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification ; and after examining and comparing the copy with the original, shall if it is found correct. Certify it to be so and return the book to the plaintiff and cause the copy to be filed.
18.-(1) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint; and which is not produced, or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(2) Nothing in this rule applies to documents produced for cross-examina--petition of the defendant's witnesses or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory."
17. Mr. Badrudduja, learned counsel for defendant No. I has strongly opposed all the applications moved in the two suits by the plaintiffs. Mr. Aziz Qureshi, learned counsel who appeared on behalf of defendant No. 2 in both the suits has adopted the arguments of Mr. Badrudduja. According to the learned counsel for defendant No. I provisions of Order VII, rule 14, C. P. C. Are mandatory and their compliance is necessary and the documents which ought to have been produced in Court by the plaintiff with the plaint when it is presented or documents which are required to be entered in the list to be added or annexed to the plaint, and which are not produced or entered accordingly, cannot be received in evidence later on without the leave of the Court. According to learned counsel such leave of the Court has to be obtained through an application under Order VII, rule 18, C. P. C. And as no such application has been filed by the plaintiff all applications moved by the plaintiff are liable to b-. Dismissed. According to him neither any documents were filed with the plaint nor any list was filed therewith and, therefore, the documents in respect whereof various applications have been moved are liable to be dismissed. It was further argued that uptill now no cause had been shown by the plaintiff why documents had not been filed and/ or listed as required by sub-rules (1) and (2) of rule 14 of Order VII of the Code of 'Civil Procedure. Mr. Badrudduja had stated that if the plaintiff had moved an application that they had not filed the documents and/or list of the documents as required by the rules aforecited through oversight or forgetfulness and the application had been a bona fide application, he may have raised no objection to such an application. However, according to him, in this case the non-filing of the documents along with the plaint and not listing the documents relied upon in the plaint was not on account of oversight or forgetfulness but it was an intentional and deliberate act on the part of the plaintiff to keep the defendants guessing about the case they were required to meet at the trial and to be seriously handicapped in filing proper written statements. According to learned counsel this male fide intention on the part of the plaintiff is apparent from the following circumstances :-
(a) A notice had been given on behalf of defendant No. 1 under Order X1, rules 15 and 16, C. P. C. For inspection but inspection was specifically refused by the plaintiff.
(b) No affidavit of documents was filed in pursuance of the orders passed by the Additional Registrar on the application moved by defendant No. 1 under Order XI, rule 12, C. P. C. In spite of several dates taken by the plaintiff - for this purpose. Mr. Badrudduja had stated that the failure on the part of the plaintiff to grant inspection of documents as required on notice given to the plaintiffs under Order XI, rules 15 and 16, C. P. C. Might have been condoned and he may not have pressed into service his objections if the affidavit of document had been filed as the same would have given the defendant notice of the documents on which the plaintiffs were relying basing their claim.
(c) In any event the documents in respect of which applications have been made on the . Part of the plaintiff seeking permission to file them are doubtful documents and in view of the doubtful nature of the documents the court ought not to allow the applications.
18. In support of his various contentions learned counsel for defendant No. 1 has referred to various judgments of the superior courts of this country as well as from the Indian jurisdiction and I now propose to consider these authorities.
19. In the case of Jiwan v. Nawab AIR 1926 Lab. 527 a point was raised in a Second Appeal before the High Court of Lahore that the plaintiffs/appellants had tendered certain documents before the trial Court at a late stage which had been improperly rejected and this point was raised before the lower appellate Court which also refused to accept the documents as this evidence was not listed in a statement attached to the plaint as required by Order VII, rule 14(2), C. P. C. A learned Single Judge of the Lahore Court rejected this contention by holding, "I see no reason why the Courts should have admitted it". This authority is of no assistance as there is no discussion in the judgment.
20. In the case of Kuruvilla Gheriyan v. Kuruvilla Chandy (1) it was observed that documents which were in possession of the plaintiff' at the time of the filing. Of the plaint but which were neither included in the list of documents nor even otherwise casually referred to in the plaint and genuine- -ness of which documents itself was in question, such documents could not be relied upon by the plaintiff in view of the non-observance of the provisions of Order VII, rule 14, C. P. C.
21. Reliance was then placed on the judgment of a learned Single Judge of the Lahore High Court in the case of Sh. Muhammad Hussain v. Fuzal Iqbal (2). In this judgment it was observed that the intention of the pro--cedural provisions of Order VII and Order XIII of the Code of Civil Procedure relating to the production of documentary evidence was that all documents on, which a party intends to rely should be produced (if they are in his possession) or disclosed (if they are not in possession) at the earliest opportunity and a document which is not produced or disclosed at the earliest opportunity may be received in evidence if for some sufficient reasons the court allows it to be received.
22. Mr. Badarudduja, learned counsel for the defendant No. 1 then referred to the judgment of a Single Judge in the case of Arunachalam Chettyar v. Koto Maung (3). In this case a document which was neither a public document nor a registered one was produced at a late stage in the suit and was refused to be admitted in evidence by the trial Court. The first appellate Court also refused to interfere with the discretion exercised by the trial Court. Rangoon High Court in second appeal held that the lower Court did not err in law in refusing to admit the document. The facts of that case were that a rent agreement which was not mentioned in the plaint as a document relied upon and was not mention when issues were framed, was sought to be put in evidence towards the close of the examination of the defendant by the plaintiff's Advocate. The defendant's Advocate objected to the document being put in evidence and the trial Court refused to admit it because it bad not been filed with the plaint nor shown in the list as one relied upon and to be produced later.
In the first appeal the District Judge did not question the discretion of the trial Court and upheld his decision on this point. -In the High Court, as observed earlier, it was held that the trial Court did not err in law in refusing to admit the document.
23. The judgment in the case of Lahore Improvement Trust v. Sh. Kuramat All (4) was also relied upon by the counsel for the defendant No. 1. In that case it was held that on a plain construction of Order XIII, rule 2, C. P. C. a party who has failed to produce a document at the proper stage has not the right to produce it at a subsequent stage and its production can only be allowed if good cause is shown to the satisfaction of the Court for its non-production at the proper stage and the Court must record reasons for its reception. It was further observed that the reception of the document cannot be allowed as a matter of course but for special cause made out to the satisfaction of the Court and for reasons to be recorded. In that case the defendant sought to produce a letter of . The plaintiff addressed to the defendant at a late stage when the case was fixed for arguments. The defendant had not put in any affidavit in support of his plea nor had he shown that any effort had been made to trace the letter in time although it appeared from his Advocate's cross-examination of the plaintiff that he was aware of its existence. This letter had not been included in the list of document relied upon. Learned Single Judge of the Lahore High Court, in the circumstances, held that there was no legitimate excuse for non---production of the letter at the proper stage and that its reception was rightly refused by the trial Court and in revision the learned Single Judge refused to interfere.
(1) AIR 1952 Trav.-Co. 445 (2) PLD 1963 Lab. 501
(3) AIR 1933 Rang. 174(4) PLD 1959 Lab. 597
24. In the case of Kanda v. Vaghu (1) the Privy Council held that while admitting public records at a late stage the Court has a discretion and though generally speaking it would be a wise exercise of discretion to admit such evidence, the question must be decided in each case in the light of the particular circumstances. In that case the Privy Council held that three appellate Courts in India had held that the trial Court exercised a wise discretion in refusing to admit additional evidence and, therefore, the Privy Council was not prepared to say that they were wrong in so holding.
25. In the case of Jankidas v. Kushalya Devi (2), a learned Single Judge of Lahore High Court held, confining himself to the fact of that case, that inspection must be allowed under Order XI, rule 15, C.
P. C. When the documents in question are themselves material facts supporting the plaintiff's claim and there is any sort of direct or indirect reference to them in the plaint itself. A qualified observation was also made in this judgment that list of documents mentioned in Order .VII, rule 14(2), C. P. C. Should be treated as part of the plaint. I may reproduce here the last paragraph of the judgment of the learned Single Judge of the Lahore High Court at page 208 of the report:- "There may be cases in which the point will not arise in the same way; and although, as at present advised, I should be inclined to take the view that the list of documents mentioned in Order VII, rule 14(2), should be treated as part of a plaint, I should prefer to limit my decision to the facts of this case by holding merely that inspection must be allowed under Order XI, rule 15 when the documents in question are themselves material facts supporting the plaintiff's claim and there is any sort of direct or indirect reference to them in the plaint itself. It would clearly be impossible for the defendant to set up his defence unless he is allowed to know before the trial Court what are the precise contents of the letter by which the plaintiff claim to have been misled. For these reasons, the petition for revision is accepted and the proceedings will be returned to the trial Court with a direction that inspection should be allowed under Order XI, rule 15. The costs in this Court will bemet by the plaintiff."
(1) AIR 1950 P C68(2) AIR 1943 Lab. 207
26. On Order XI, rules 15 and 18, C. P. C. Learned counsel referred to the decision of a Single Judge of the Madras High Court in the case ofVungarala Venkanna v. Anfsetti Rama Rao (1). In this judgment it was laid down that it cannot be said that unless the party who has given the notice of inspection which is not replied to, takes the other action which is open to him under rule 18, the party who has omitted to reply or give inspection is absolved from the penalties of Order XI, rule 15, C. P. C. According to the Single Judge there was absolutely nothing in rule 18 to suggest down on alternative .Procedure by which, if the notice is not replied to, the party who has asked for inspection can force the other party to give it.
27. Mr. Mansoorul Arfin's argument was that the rules contained in the Civil Procedure Code regarding filing of documents and specially rules contained in Order VII and Order X111, C. P. C.
Should be very liberally construed as the object of the procedural rules is not to shut out evidence but to aid in the administration and dispensation of justice. Mr. Mansoorul Arfin has relied very heavily upon the judgment of Kaikaus, J. In the case of Lahore Improvement Trust v. Khuda Bux Meraj Din (2). Kaikaus, J. Has in great detail dealt with the object and interpretation of Order VII, rule 14 as well as Order XIII, rules I and 2, C. P. C. In his judgment and I may re-produce here the following passages in ,the report at p. 256 :- "Statutes are to be interpreted with due regard to their objects. The object of Order XIII, rule 2 was to exclude forged documents and to expedite the trial and not to exclude genuine documents. If there be no doubt as to the authenticity of a document and if at the same time its admission were not in any way to delay the trial of a suit, words of rule 2 should not be allowed to bar its production. What then is the interpretation which can be consistent with the object ofthestatute and yet will not unduly strain its wordings? .It appears to me that the only reasonable construction of the words "unless goodcause is shown for the non-production thereof" is to construe them as meaning `unless good cause is shown for reception in evidence in spite of such non-production'. In using in rule 2 of Order XIII, the words `unless good cause is shown for non-production' the Legislature was emphasizing the need of considering the reason for non-production with a view to deciding whether the document may not be fabricated and did not intend to provide that the effect of non-compliance with Order XIII, rule 1, should be entirely different from non-compliance with other connected rules. The effect of the rule is only to make the reception of documents dependent on leave of Court. If the document be authentic and the delaying effect be negligible there should be no objection to its being produced."
(1) AIR 1935 Mad. 234(2) PLD 1956 Lab. 252
28. Learned counsel for the plaintiff then referred to a Division Bench judgment of the Allababad High Court in the case of Haji Begum v. Jawahir Singh (1). In this case the plaintiff had brought a suit on a mortgage deed but produced only a copy of the deed with the plaint alleging that the original had been misplaced. On the day the defendants filed their written statement, the plaintiff produced the original mortgage deed. The trial Court showed the deed to the defendant and admitted it in evidence. The first appellate Court however rejected the document. It was held by the Allahabad High Court that the act of the trial Court in receiving the document and in calling the attention of the other side to it and in admitting it in evidence may fairly be considered leave granted to 'the document being placed oil record within the meaning of Order VII, rule 18, C. P. C.
Learned counsel for the plaintiff had cited this judgment for the proposition that permission to produce documents can be inferred from circumstances and it is not necessary that there should be a specific application and order under Order VII, rule 18 to that effect.
29. Counsel then relied on the case of Jamuna Prasad Shah v. Foujdar Shahni (2). In this judgment a Division Bench of the Patna High Court took the view that the Court has a discretion to receive documentary evidence if filed after the date of the first hearing of the suit although it has equal discretion to reject these documents. In that case documents were filed late and the trial Court passed an order directing that the documents should be kept on the record. According to the Patna High Court that order must be read as an order "receiving" the documents under Order XIII, rule 2, C. P. C. It was further observed that it was open to the trial Court afterwards to reject them on the ground that they were not genuine.
30. In the case of Jogendra Kumar Ghose v. Ananda Chandra Mozumdar (3) the plaintiff had brought a suit for enhancement of rent on the basis of a "Kabuliat" which was not filed with the plaint as required by Order VII, rule 14, but was filed in Court after the time within which parties were directed by the Court to file their documents and was, therefore, not received in evidence at the hearing of the suit. It was held that as there was no doubt that the document was in existence at the date of the institution of the suit and also having regard to the proceedings which had taken place in the suit, the rejection of the document by the lower Courts was not a proper or judicial exercise of the discretion conferred by Order VII, rule 18, C. P. C.
31. Learned counsel then relied upon the judgment of a Single Judge of the Patna High Court in the case of Sukan Sahu v. Jhari Mahto (4) in which it was held that the object of Order VII, rule 14, C. P.
C. Is to shut out suspicious documents and to afford as little opportunity as possible for the production of false and fabricated document in Court, but where it is made clear to the Court that in spite of the document not having been filed or entered in the list alongwith the plaint, the document cannot be said to have been fabricated on the face of it, there is no reason why the party should be debarred from using such a document in Court.
(1) 20 1 C 331 (2) AIR 1929 Pat. 254
(3) AIR 1918 Cal. 329(4) 60 1 C 372
32. In relation to Order Xl, rule 15, C. P. C. Learned counsel for the plaintiff relied upon two judgments.
The first is the case of Chanamull Goneshmull v. Dhanrai Ganpatroy (1) in which it was held that a defendant is not entitled as of right to inspect documents relied upon by the plaintiff and of which a list under Order VII, rule 14, C. P. C. Is annexed to the plaint as such documents are not documents referred to in Order XI, rule 15, C. P. C. The other case is of Birenda Kumar Gupta v. Chinta Devi (2) where it was held that before filing written statement a defendant is not entitled to inspect under Order XI, rule 15, C. P. C. Documents referred to in Order VII, rule 14, which are not the basis of suit and have to be produced at a later stage simply as evidence.
33. I would first deal with the objection, raised by counsel for defen--dant No. 1 in both the suits, based on refusal by the plaintiff to grant inspection of documents. 1 agree with counsel for defendant No. 1 that rules 15 and 18 of Order XI, C. P. C. Provide for alternate procedures. In is not encumbent upon a defendant, who is refused inspection by the plaintiff on a notice under rule 15, to move the Court under rule 18. In case of refusal to. Grant inspection, if asked for by the defendant under rule 15, the plaintiff is not at liberty to put the documents in evidence unless he satisfies the Court that he had some cause or .Excuse which the Court shall deem sufficient for not complying with such notice. Failure of the defendant No. 1 in moving an application under rule 18 does not deprive him of the right to raise the objection under rule 15.
34. In the instant cases in reply to the notice under Order XI, rule 15, C. P. C., the plaintiff through their Advocate took the position that the defendant No. I was asking for inspection of documents relied upon in the plaint and to this . The defendant No. 1 was not entitled. According to counsel for the plaintiff Order VII, rule 14, relates to two different categories of documents; sub-rule (1) of this rule deals with documents on which the plaintiff sues and sub-rule (2) talks about documents on which the plaintiff relies. It was contended that the documents mentioned against the heading "Documents relied upon" in the two plaints are in effect lists of documents required to be listed by Order VII, rule 14(2), and such documents cannot be inspected under Order X1, rule 15. The contention was that the list of docu--ments under Order VII, rule 14(2) is not a part of the pleadings and, therefore Order X1, rule 15 was not applicable as it applies to documents referred to in the pleadings or affidavits. In support of his contention learned counsel had relied upon the judgments reported in AIR 1974 Pat. 287 and AIR 1920 Cal. 416, discussed earlier. For the contrary proposition that the list of documents under Order VII, rule 14(2) is a part of the pleadings, learned counsel for the defendant No. 1 had relied upon AIR 1943 Lah. 207, also discussed earlier. There appears to be same conflict on this point and it is for this reason that I am of the view that the plaintiff were not entirely unjustified in taking the plea accepted by the Patna and Calcutta High Courts. Plaintiff had not refused inspection but had taken the stand that the defendant No. 1 was not entitled to inspection for a reason which can be, supported by the judgment reported in AIR 1974 Pat. 287 and AIR 1920 Cal. 416. Rules contained in the Code of Civil Procedure relating to filing and reception of documents are so be liberally construed in favour of documents being allowed to be filed or put in evidence. I have not been persuaded by learned counsel for defendant No: 1 to take the view that as the notices under Order XI, rule 15 were not complied with, the documents filed by the plaintiff should be rejected. Inspection had been refused on the basis of a legal proposition of some substance. I am, therefore, of the view, that in the circumstances, there was sufficient excuse on the part of the plaintiff for not complying with the notices of the defendant No. 1 under Order XI, rule 15, C. P. C. I may add here that in the unusual circumstances of the cases, if the defendant No. 1 were not satisfied with the legal stand taken by the plaintiff and wanted to inspect the documents before filing their written statements, they had the right to move the Court for inspection under Order XI, rule 18, C. P. C., which application would have been decided on merits and if the Court had then come to the conclusion that the defendant No. I were entitled to inspection an order to that effect would have been passed.
(1) AIR 1920 Cal.416 (2) AIR 1974 Pat. 287
35. The next contention of Mr. Badrudduja was that no affidavit was filed by the plaintiff in response `n the orders under Order XI, rule 12, C. P. C. It was stated that bad such an affidavit been filed, defendant No. 1 would not have opposed the filing of documents by the plaintiff. It has to be noted that neither party filed their affidavit of documents. Both parties sought extension of time for different reasons but the directions were closed by the Additional Registrar without any affidavit of document having been filed. I find nothing in Order XI, rule 12 which suggests that in case affidavit of documents is not filed by a party to a suit, he cannot, for this reason file any documents. If defendant No. 1, felt it to be absolute essential for their defence that the plaintiff should file the affidavit o documents, they could have moved an application under Order XI, rule 21, C. P. C. An attack on this front would have forced the plaintiff to file C the required affidavit. Mr. Badrudduja's statement that in case the plaintiff had filed their affidavit of documents, he may not have pressed his objections has not appealed to me. The stage of filing affidavit of documents coin after the filing of written statement and, therefore, the failure of the plaintiff to file such affidavit could not cause any prejudice to the defendant No. 1 in filing their written statements. In any case the defendant No. 1 became aware of the various documents of the plaintiff when they filed their docu- -ments with lists. In my view, failure on the part of the plaintiff in filing their affidavit of documents does not on this ground indicate any mala fide intention on their part and also does not debar them from filing documents. I may here again record that defendant No. 1 themselves did not file their affidavit of documents.
36. Another ground of challenge on the part of the learned counsel for the defendant No. 1 was that the documents sought to be brought on record were doubtful documents and as such the Court should not allow their various applications. This point will be discussed and dealt with later in this order.
37. On a review of the judgments on Orders VII and XII, C. P. C. Cited by the learned counsel and discussed in this order, in my view, the following principles can safely be expressed as well established
(i) Under Orders VII and XIII of the Code of Civil Procedure the Court has a discretion to receive or reject documents not listed a required by Order VII, rule 14(2) or filed late and this decision I taken in each case in the light of its particular facts and circum--stances.
(ii) While exercising its judicial discretion to receive or reject documents, the Court will liberally construe the procedural provisions of Order VII. And XIII, C. P. C. In favour of reception of documents rather than their rejection.
(iii) The object of Order VII, rule 18 and Order X1II. Rule 2 is not to shut out or exclude documents generally. The object is to exclude documents which are apparently suspicious, forged or fabricated, and to expedite the trial.
(iv) Unless it is a consent order, the Court in- its decision, rejection or allowing the reception of document, will record reasons.
38. I may add here that in the judgment reported in PLD 1956 Lah. 252, Kaikaus J, has interpreted Order XIII, rule 2, C. P. C., as discussed in para. 27 of this order, and although I am in respectful agreement with such interpretation placed on the said rule, I find that the applications in the two suits can be disposed of by applying the principles enunciated in the previous paragraph to the relevant facts and circumstances in these cases.
39. Learned counsel for the plaintiff had contended that the general description of the documents given in the plaints in these two suits against the heading "Documents relied upon" are in fact list of documents required to be added or annexed to the plaint under the provisions contained in Order VII, rule 14(20), C. P. C. Mr. Badrudduja, learned counsel for defendant No. 1 has disputed this assertion on the ground that these are not lists but merely description of documents. It is no doubt correct that technically such general description may not be termed as lists but I will take judicial notice of the practice that has been more or less consistently followed for a long time in his Court.
The general practice has been to add or annexe to the plaints such general description of documents and treat them as list of documents relied upon and there is no reported decision of this Court where such general description of documents was challenge on the ground that it was not a list contemplated by Order VII, rule 14(2), C. P. C. And the Court accepting this contention had disallowed the filing of documents on this ground. Additionally such rules have to be liberally construed, as observed earlier. In the circumstances I am inclined to agree with learned counsel for the plaintiff that such general description of documents in the plaints in these two suits comply with the requirement of Order VII, rule 14(2), C. P. C.
40. A defendant in a particular case may be seriously handicapped in the preparation of the written statements of his defence in view of the general description of documents relied upon and added or annexed to the plaint. In such a case the defendant can move the Court for inspection under Order XI, rule 18, C. P. C. Or for an order for complete details of documents in the list form of a with description and date of documents. If the defendant No. I was handicapped in this behalf, they could have conveniently adopted one or both of the said procedures. I may further observe here that although an objection was raised in para. 13 of the written statements by defendant No. I based on Order XI, rule 16, C. P. C., no grievance was made in the written statements that the general description of documents relied upon were not list contemplated by Order VII, rule 14(2), C.
P. C.
41. Under Order X111, rule 1, C. P. C. Parties to a suit are required to file all documents in their possession or power on which they intend to rely at the first hearing of the suit. Date for settlement of issues is considered as the first date of hearing.Here also in this Court the invariable practice has been that documents are not filed by the parties on the date fur settle--ment of issues, but after the issues are settled, the Court fixes a period, generally varying from one month to three months, during which the parties are, directed to file documents. In the instant cases issues were settled on 14-I-1978 and by the orders of the same date one month's time was granted by the Court for filing documents by the parties. In the circumstances the documents could be filed by 14-2-1978. The two cases were then fixed for evidence on 19-3-1978 when counsel for the plaintiff requested for adjournment on the ground that he could not file the documents. Both counsel Messrs Badrudduja and Aziz Qureshi gave their no objection and the cases were adjourned. If the position of defendant No. 1 was that the plaintiff could not file any documents on account of non-compliance of any rule of Order VII or XIII, objection ought to have been raised then. But, as observed earlier, no objection is raised and on the contrary consent for adjournment is given although the ground for adjournment was that documents had not been filed.
42. Document in both suit were filed by the plaintiff on 22-3-1978. In Suit No. 142/76 there is on record and application under section 148, C. P. C. (C. M. A. 1258 of 1978) for condonation of delay in filing documents as the same were being traced and as such could not be filed in time. In Suit No. 141/76 also documents were filed on 22-3-1978 and though there is an endorsement by the office of the Court on the list that the documents were presented with an application under section 148, C. P.
C. Such application not available on the record. However the endorsement of the Office shows that an application under section 148, C. P. C. Had been moved and I would presume that the ground for delay in filing the documents late in Suit No. 141/76 would be similar to the ground in Civil Miscellaneous Appeal No. 1258 of 1978 in Suit No. 142/76 filed on the same day. Factual ground given in Civil Miscellaneous Appeal 1258 of 1978 in Suit No. 142/76 has not been denied by the defendants.
43. On 30-10-1978 admission and denial of documents filed by the plaintiff took place in Suit No. 1.41/76 and on 28-11-1978 in Suit No. 142/76 when a number of documents were admitted by counsel for defendant No. 1 and were, therefore, brought on record and given exhibit numbers.
44. On 26-11-1978 Civil Miscellaneous Appeal 4804 of 1978 was moved in Suit No. 141/76 under section 148, C. P. C. And Civil Miscellaneous Appeal 874 of 1979 was moved in Suit No. 142/76 on 24- 2-1979 for filing additional documents in each case. Reason given was that during admission and denial of documents, defendant No. 1 had denied certain cheques and bad disputed certain amounts which necessitated the filing of the documents. In Suit No. 141/76 plaintiff filed Civil Miscellaneous Appeal 1084 of 19'79 on 3-3-1979 under sections 148 and 151, C. P. C. In respect of documents filed on 22-3-1978 as the application under section 148, C. P. C. Filed on 22-3-1978 was not available on record.
45. In my view Civil Miscellaneous Appeal 1258 of 1978 and Civil Miscellaneous Appeal 874 of 1979 in Suit No. 142/76 and -Civil Miscellaneous Appeal 5804 of 1978 arid Civil Miscellaneous Appeal 1084 of 1979 must be allowed. 1 have already held that documents could be filed by 14-2-78, that is, within one month's time granted by the Court on 14-1-1978 while framing the issues. There is a delay of 37 days only for which a ground was advanced by the plaintiff which is not denied by the defendants.
As regards the filing of additional documents, a plausible reason is given which is accepted. I may here refer to certain other facts and circumstances which, in my view, are additional reasons for grant of the aforesaid four applications :-
(a) Admission and denial of the documents filed by the, plaintiff took place and the defendant No. 1 admitted a number of documents which were taken on record and exhibited. Learned counsel for defendant No. 1 contended that the admission and denial took place without prejudice to his objections. The order sheet of Suit No. 141/76 shows that the statement is not entirely correct. The order dated 27-9-1978 was to the effect that the defendant's counsel will examine the statement of account and point out the items to which defendants object and that this would be without prejudice to the objections, raised by the defendant's counsel. The question of admission and denial of documents, therefore, was different from pointing out entries in the statement of accounts. In any case objection of defen--dant No. 1 in their written statement was confined to Order XI, , rule 15, C. P. C. The defendant No. 1 having carried out admission and denial of documents were hardly in a position to raise the objection about reception of document on other grounds.
(b) Having taken several dates for checking the statement of accounts, the defendant No. 1 were estopped from raising the objection regarding e the reception of the statement of account.
(c) The documents which were not admitted by the defendant No. 1 have been averred by the plaintiff to be genuine and to be signed by the defendant No. 1 of -his agent in para. 9 of Civil Miscellaneous Appeal 2390 of 1980 in Suit No. 141/76 and Civil Miscellaneous Appeal 2388 of 1980.
There is no specific denial by the defendant No. I in their objections that such documents were not signed by him or his agent but it is mentioned that the defendant No. 1 admitted documents which were genuine and were not of doubtful nature, and other documents were not admitted as defendant No. 1 did not consider them as genuine. Learned counsel for defendant No. 1 had contended that the documents are suspicious as it was plaintiff's own case that accounts had been tampered with. The plaintiff's case in this regard is contained in paras. 3 and 4 of the plaint which have been reproduced in para. 3 of this order and these paragraphs of the plaints do not indicate that the documents filed by the plaintiff are forged or fabricated by the plaintiff. At this stage I would restrict myself in observing that apparently these documents are not suspicious to conclude their reception but the Court will be free to reject them if they are not proved in accordance with law.
(d) I am further of the view that on account of reception of these documents trial of the suit will not be delayed.
46. I find no merit in Civil Miscellaneous Appeal 1085 of 1979 filed by the plaintiff in Suit No. 141/76 for review of the order dated 28-2-1979 awarding Rs. 200 as costs to be paid by the plaintiff to each of the two Advocates of the defendants. If an application under section 148, C. P. C. Had been filed by the plaintiff, it was their responsibility to obtain orders on such application. The case had to be adjourned on 28-2-1979 on account of default on the part of the plaintiff. Costs had been awarded as the case had to be adjourned.
47. As a result Civil Miscelllaneous Appeals Nos. 4804 of 1978 and 1084 of 1979 in Suit No. 141/76 and Civil Miscellaneous Appeals 1258 of 1978 and 874 of 1979 in suit No. 142/76 are granted. Civil Miscellaneous Appeal 2390 of 1980 in Suit No. 141 of 1976 and Civil Miscellaneous Appeal 2388 of 1980 in Suit No. 142/76 have become infructuous and the same are dismissed as such. Civil Miscellaneous Appeal 1085 of 1979 is also dismissed.
48. The defendants are permitted to inspect the documents filed by the plaintiff and which they can do so by making an application to the Additional Registrar within one week from today. On such application being made the Additional Registrar will arrange for inspection before 15-11-1980.
Amended written statement if considered necessary, can be filed by the defendant, on or before 30-11-1980 on which date these two cases will be fixed before the Additional Registrar. If any amended written statement or written statements are filed the suits will then be fixed for further issues. If no amended written statements are filed, the suits will be fixed for evidence on a date to be fixed by Office.
S. Q. Larder accordingly.