Full Text
HIGH COURT OF DELHI
Date of Decision: 6th December, 2019
KRISHAN KUMAR WADHWA & ORS ..... Plaintiffs
Through: Mr. Samar Bansal, Advocate.
Through: Ms.Divya Bhalla & Ms.Aathira Pillai, Advocates for D-2 & D-
4.
Mr.Dhruv Mohan, Ms.Ritu Sharma & Mr.Birender Bikram, Advocates for D-3.
PRATEEK JALAN, J. (ORAL)
JUDGMENT
1. This chamber appeal is directed against an order dated 15.07.2019, whereby the learned Joint Registrar has dismissed the plaintiffs’ application under Order VII Rule 14(3) Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”) for filing additional documents.
2. The suit was instituted on 03.11.2015 for recovery of amounts allegedly due to the plaintiffs under an agreement to sell dated 03.01.2012, by which the plaintiffs agreed to purchase the suit property [B-8, Maharani Bagh, New Delhi] from the defendants. In 2019:DHC:6729 the plaint, the plaintiffs refer to correspondence in which they have averred their readiness and willingness to pay the consideration under the said agreement, but subject to the defendants being ready and willing to execute the conveyance after fulfilling the compulsory requirements enumerated in the plaint.
3. In the written statements, the defendants inter alia take the position that the plaintiffs were not ready and willing to make the requisite payment.
4. By a judgment dated 22.02.2018, the application of the plaintiffs under Order XII Rule 6 of the CPC was allowed, and a partial decree in the sum of ₹7,03,12,500/- was granted.
5. The following issues were framed vide an order dated 26.07.2018:- “1. Whether the plaintiffs are entitled to pendent lite and future interest upon the partially decreed amount of Rs.7.50 crores? If so, at what rate and for what period? OPP
2. Whether the plaintiffs are entitled to a decree for recovery of balance principal amount of Rs.2.50 crores? Whether plaintiffs are entitled to pendent lite and future interest thereupon, and if so, then at what rate and for what period? OPP
3. Whether the plaintiffs are entitled to a decree of recovery of Rs.7,10,98,438/- being accrued interest @ 15% p.a. from 03rd January, 2012 till date of filing of suit? OPP
4. Whether the plaintiffs failed to pay the balance consideration within the stipulated time as per the terms of the agreement dated 03rd January, 2012? OPD
5. Whether the defendants are entitled to forfeit the 25% of the earnest money i.e. Rs.2.[5] crores in terms of the agreement dated 03rd January, 2012? OPD
6. Relief”
6. By an order dated 28.01.2019, an additional issue was framed at the instance of defendant no.1 in the following terms:- “Whether the defendant no.1 is entitled to the set off of the amounts as claimed in the written statement against the claims of the plaintiffs in the suit? OPD1”
7. On the same date, an application of the plaintiffs for production of additional documents [I.A. 14509/2018] was allowed, without prejudice to the rights and contentions of the parties during the course of cross-examination of PW-1.
8. The plaintiffs thereafter filed another application for leave to produce additional documents [I.A. 3893/2019] which was disposed of by the impugned order the Joint Registrar.
9. The documents sought to be disclosed are, according to the plaintiffs, intended to substantiate their case on their readiness and willingness. These are as follows:a) Certified copies of the sale deed dated 04.03.2015, by which the plaintiffs sold another property for a consideration of approx. of ₹52 crores. The certified copies were received by the plaintiffs on 15.02.2019. b) A certificate dated 18.12.2018 from the plaintiffs’ banker, confirming that the amount paid under the three cheques sent by the defendant no.1, each amounting to ₹46,87,500/-, had been kept by the plaintiffs in a fixed deposit.
10. The averment of the plaintiffs is that the documents have been recently obtained, and could not have been filed alongwith the suit.
11. The application was resisted by defendant no.1, principally on the ground that the documents ought to have been disclosed with the plaint, and the belated filing is intended to overcome lacunae in the plaintiffs’ evidence.
12. The Joint Registrar, by the impugned order, held that the plaintiffs have not made out a case for grant of permission under Order VII Rule 14(3) of the CPC, as the documents ought to have been produced at the time of filing the suit.
13. I have heard learned counsel for the parties, and have also considered the authorities relied upon by them, to which I shall refer in the course of this order.
14. Order VII Rule 14 of the CPC provides as follows:- “Order 7 Rule 14: Production of document on which plaintiff sues or relies – (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. (3) 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 but 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. (4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.”
15. It is evident from a plain reading of the provision that a document which is in the possession or the power of the plaintiff is required to be filed with the plaint. However, Rule 14(3) permits belated filing of such documents with the leave of the Court.
16. The Supreme Court, in Chakreshwari Construction Private Ltd. vs. Manohar Lal (2017) 5 SCC 212, cited by learned counsel for the plaintiff, was concerned with applications filed by an eviction petitioner for amendment of the petition, and for filing additional documents. After noticing the principles which govern the amendment of pleadings as laid down in Revajeetu Builders and Developers vs. Narayanaswamy & Sons (2009) 10 SCC 84, the Court in Chakreshwari Constructions (supra) held as follows:- “14. Applying the aforesaid principle of law to the facts of the case at hand, we are of the considered opinion that the amendment proposed by the appellant so also the permission sought for filing additional documents deserved to be allowed.
15. It is for the reasons that firstly, the amendment proposed did not change the nature of the case originally set up by the appellant in the eviction petition; secondly, the amendment did not introduce any fresh cause of action; thirdly, the amendment was relevant for deciding the question of subletting and availability of alternative accommodation with the respondent; fourthly, the facts proposed in the amendment not being in the personal knowledge of the appellant and having obtained from the State Department concerned recently, the same could be allowed to be brought on record for its consideration; fifthly, no prejudice was likely to be caused to the respondent, if the applications had been allowed because the respondent in such eventuality would have got an opportunity to make consequential amendment in his written statement and file additional documents in rebuttal; and lastly, in order to prove the case, the amendment proposed and permission to file documents should have been granted.
16. It is true that there was some delay on the part of the appellant in filing the applications but, in our opinion, the appellant had explained the delay. One cannot dispute that in appropriate cases, the parties are permitted to amend their pleadings at any stage not only during the pendency of the trial but also at the first and second appellate stage with the leave of the court provided the amendment proposed is bona fide, relevant and necessary for deciding the rights of the parties involved in the lis.
17. Similarly, the law also permits the parties to file additional evidence at any stage of the trial [Order 7 Rule 14(3)] including at the first or/and second appellate stage (Order 41 Rule 27) with the leave of the court provided a case is made out to seek such indulgence.” [Emphasis supplied]
17. An instructive analysis of the provision is to be found in the judgment of the Kerala High Court in Bhanumathi vs. K.R. Sarvothaman (2010) 4 KLT 809: 2010 SCC Online Ker 3737 (SCC Online): “15. The documents on which Plaintiff or Defendant may rely on can be classified as follows:- I (a) Documents in the possession or power of the Plaintiff on which he sues or relies—such documents are to be produced along with the plaint as provided under Rule 14(1) of Order VII of the Code. (b) Documents which are not in the possession or power of Plaintiff but on which he sues or relies—Plaintiff shall, wherever possible state in whose possession or power such documents are, as required by Sub-rule (2) of Rule 14 of Order VII. II (a) Documents in the possession or power of the Defendant on which he bases his defence or relies—such documents shall be produced along with the written statement as provided under Rule 1(A)(1) of Order VIII. (b) Documents on which Defendant bases his defence or relies and which are not in possession or power— Defendant shall, wherever possible state in whose possess or power such documents are as required under Sub-rule (2) of Rule 1A of Order VIII. III Originals of documents (copy of which have been produced along with the plaint or written statement) shall be produced on or before the settlement of issues as required under Rule 1 of Order XIII. IV Documents on which Plaintiff or Defendant rely on incidentally but not to support his claim or defence. V Documents to disprove the claim or defence of opposite party. VI Documents which come into existence after the pleadings are filed. Documents falling in categories I(a) and II(a) are to be produced along with the plaint/written statement Documents falling in category No.III are to be produced on or before the settlement of issues. If documents falling under category I(a) and II(a) are not produced along with the plaint or written statement as the case may be, the party has no right as such to produce those documents evidence at the time of hearing, but in view of Sub-rule (3) of Rule 14 of Order VII and Sub-rule (3) of Rule 1A of Order VIII, the Court has the power to receive such documents in evidence even at the time of hearing. Documents falling under category I(b), II(b), III, IV, V and VI could be produced along with the affidavit in lieu of chief examination under Rule 4 of Order XVIII but its proof and admissibility will be subject to the orders of the Court.”
18. This has been followed by a Coordinate Bench of this Court in Sadhu Forging Limited vs. M/s Continental Engines Ltd. (2017) 165 DRJ 533.
19. Learned counsel for the defendants have, on the other hand, relied upon the decision in Polyflor Limited vs. Sh. A. N. Goenka & Ors.,(2016) 159 DRJ 664 to the following effect:- “17. Thus, the issue is, whether in the above noted facts and circumstances, the plaintiff is entitled to grant of such leave. In the present case, the plaintiff's witness PW-1 is under cross-examination and has already undergone a substantial portion of his crossexamination. To grant leave to, and permit the plaintiff to file and lead in evidence additional documents at this stage would mean that the defendants would be put to serious prejudice. The defendants have not had the occasion to deal with the said documents. Had the documents now sought to be produced, been produced at the relevant time, i.e. at the stage of filing of the suit, or at least at the time when the issues were framed, the defendants would have had the occasion to deal with the same by making appropriate pleadings and filing its own documents to counter the reliance placed by the plaintiff on the documents in question.
18. The progress of the suit cannot be interdicted on account of the blatantly casual approach of the plaintiff. The plaintiff has not given any justifiable and acceptable explanation for not filing the said documents at the earlier stage of the proceedings. If the submissions of the plaintiff were to be accepted, it would mean that in every case, a party should be permitted to lead in evidence documents not earlier filed and relied upon at any stage of the proceedings. xxxx xxxx xxxx
21. As aforesaid, there is no cause shown, much less a reasonable cause for non-disclosure of the documents and non-filing of the documents, or at least copies thereof along with the plaint, or even till the stage of framing of the issues.”
20. In Polyflor (supra), the Court has also relied upon the decision in Gold Rock World Trade Ltd. vs. Veejay Lakshmi Engineering Works Ltd., (2007) 143 DLT 113, wherein it was held as follows:- “4……. A plain reading of Order 7 Rule 14 (3) makes it clear that 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 but 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. The learned counsel for the plaintiff submits that leave of the Court ought to be granted to the plaintiff for producing the additional documents referred to in the application under Order 7 Rule 14 and as also for calling the witness for producing the documents mentioned in the other application. The learned counsel for the plaintiff referred to the decision of the Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India: (2005) 6 SCC
344. With reference to paragraph 13 thereof, the learned counsel submitted that the Court may permit leading of such evidence even at a later stage subject to any terms that may be imposed upon by the Court which may be just and proper.
5. I have heard counsel for the parties. The Supreme Court decision in Salem Advocate Bar Association (supra) was in the context of additional evidence. By virtue of the 1976 amendment, Rule 17-A had been introduced in Order 18. The said Rule 17-A granted discretion to the Court to permit production of evidence not previously known or which could not be produced despite due diligence. Rule 17-A of Order 18 was deleted by the Code of Civil Procedure (Amendment) Act, 1999 which took effect on 1.7.2002. While considering the effect of this deletion the Supreme Court observed:- “13. In Salem Advocate Bar Assn. (I) v. Union of India, (2003) 1 SCC 49, it has been clarified that on deletion of Order 18 Rule 17-A which provided for leading of additional evidence, the law existing before the introduction of the amendment i.e. 1-7-2002, would stand restored. The Rule was deleted by Amendment Act of 2002. Even before insertion of Order 18 Rule 17-A, the court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order
18 Rule 17-A did not create any new right but only clarified the position. Therefore, deletion of Order 18 Rule 17-A does not disentitle production of evidence at a later stage. On a party satisfying the court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the court may permit leading of such evidence at a later stage on such terms as may appear to be just.”
6. Thus, the Supreme Court held that the insertion of Rule 17-A was only clarificatory of the in-built power of the Court to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. The learned counsel for the plaintiff sought to invoke this in-built power of the court even in respect of Order 7 Rule 14 (3) which relates to production of documents at a belated stage. There would be no difficulty in holding that the in-built power referred to in the said Supreme Court decision could also be invoked when the question of granting leave arises in the context of Rule 14 (3) of Order 7. Consequently, before leave of the Court can be granted for receiving documents in evidence at a belated stage, the party seeking to produce the documents must satisfy the Court that the said documents were earlier not within the party's knowledge or could not be produced at the appropriate time in spite of due diligence. It has been submitted by the learned counsel for the defendant that the documents pertain to a settlement between the plaintiff and a foreign party (COGETEX). The settlement was arrived at, as per the statement recorded in the crossexamination of PW[1], on 7.10.1996. However, there is not a whisper of this statement even in the replication which was filed on 11.9.1997. In fact, the affidavit by way of evidence was filed by the plaintiff in the year 2003 and even in that affidavit, there is no reference to the documents which are now sought to be introduced. In my view, these circumstances clearly show that the conditions necessary before leave of the Court can be granted have not been satisfied. It cannot be said that the plaintiff was not aware of the documents earlier, or that the same could not be produced in spite of due diligence on the part of the plaintiff. All the material now sought to be introduced, was well within the knowledge of the plaintiff at least in the year 2003. As the plaintiff was not diligent enough at that point of time, this Court is left with no alternative but to reject its request.” [Emphasis supplied]
21. The aforesaid authorities indicate that, while the Court has the power under Order VII Rule 14(3) of the CPC to permit belated filing of a document which ought to have been filed with the plaint, the grant of such permission must be for due cause shown by the plaintiff. In the present case, both the sale deed and the cheques received by the plaintiffs from the defendant no.1 pre-date the suit. While the sale deed is of 04.03.2015, the suit was instituted on 03.11.2015. The plaint does not contain any reference to this sale deed. Similarly, while the cheques sent by defendant no.1 are referred to in the plaint, there is no reference whatsoever to the fixed deposit. These facts were within the knowledge of the plaintiffs at the time of filing the suit. Even if the supporting documents were not available at the time, the factual basis ought to have been pleaded.
22. The plaintiffs’ assertion that the documents were obtained later is of little consequence. The question is not when the documents were in fact obtained, but when they ought to have been obtained. The fact that the plaintiffs did not take steps to obtain these documents at the stage of filing of the suit but only during the course of proceedings cannot entitle them to the benefit of Order VII Rule 14(3) of the CPC. The plaintiffs have been unable to show the exercise of any diligence which might persuade the Court to grant such permission. In fact, this is the second application of a similar nature made by the plaintiffs. Granting the indulgence sought in the facts of this case would severely prejudice the defendants, who had already cross-examined the plaintiff no.1.
23. For the reasons aforesaid, the order of the Joint Registrar dated 15.07.2019 is affirmed, and the appeal is dismissed.
1. By the order passed above, O.A.85/2019 has been dismissed.
2. Mr. Samar Bansal, appearing for the plaintiff states that he has to lead evidence of some summoned witnesses. He will move an application in this regard. Mr. Dilbag Singh Punia, District & Sessions Judge (Retd.), [Mobile No. 9910384618] was appointed to record the plaintiffs’ evidence by an order dated 28.09.2019. At Mr.Bansal’s request, the local commissioner is also requested to record the evidence on behalf of defendants. Mr.Bansal states that the fees of the local commissioner will be borne by the plaintiffs at the first instance, subject to final orders of costs in the suit. The fees of the local commissioner for recording of defendants’ evidence is fixed at ₹1,00,000/- of which ₹50,000/- will be paid at the commencement of recording of the defendants’ evidence, and ₹50,000/- will be paid after it is concluded.
3. Learned counsel for the parties will coordinate with the local commissioner for fixing a date for commencing of the defendants’ evidence. The commissioner is requested to record evidence within the premises of this Court. The Registry is directed to make the suit record available at the place and time fixed by the commissioner for recording of evidence.
4. The Commissioner will be at liberty to have the matter placed before the Court if the parties do not cooperate in the recording of evidence, or if any other directions are required.
5. The local commissioner will give directions for filing of affidavits of evidence of the defendants’ witnesses after conclusion of plaintiffs’ evidence.
6. List on 26.03.2020 for monitoring of the proceedings.
PRATEEK JALAN, J. DECEMBER 06, 2019 „pv‟/s