2014 Supreme(Bom) 1822

High Court of Judicature at Bombay
K.R. SHRIRAM, J.
Coromandel International Ltd.
Versus
M.V. GLORY I & Others
Admiralty Suit No. 33 of 2010
Decided On : 30-10-2014

Headnote:Bombay Government Premises (Eviction) Act, 1955 - Rule 172. - See Civil Procedure Code, 1908, Order VII, Rule 14, Order XI, Rule 14.

       Civil Procedure Code, 1908 - Order VII, Rule 1(2) Order XIII, Rule 1 Production document. - Where original documents could not be filed with plaint therefore leave of Court has to be obtained to produce further documents. 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 I 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 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 has to be obtained to produce further documents.

       Civil Procedure Code, 1908 - Order VII, Rule 14 Grant of leave for production of documents. - Plaintiff seeking to produce documents which were not annexed to plaint, required to provide explanation as to why those documents not annexed to plaint and why leave should be granted. The judgment of the Privy Council in Sulaiman v. Biyaththumma and others (supra) relied upon by the counsel for the plaintiff does not anywhere state that only crucial documents have to be annexed to the plaint.

       A document referred to or sought to be enforced in a suit must be produced in Court when the plaint was presented or a copy thereof must be filed with the plaint. Therefore, it does not help the plaintiff’s case at all.

       Civil Procedure Code, 1908 - Order VII, Rule 14 Production of documents. - In view of Order VII, Rule 14 of Code, obligation cast on plaintiff to produce all documents with plaint, he relies upon and not only crucial documents. Present case relates to the grant of leave for production of the documents not annexed to the plaint. True, it is said by the Court 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, 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, to take out an application explaining what prejudice will be caused if the document is accepted in evidence.

       Civil Procedure Code, 1908 - Order VII, Rule 14 Scope of. - Order VII, Rule 14 of CPC is not applicable to documents produced for cross-examination of "defendant’s witness" not `plaintiff’s witness’. Under Order VII, Rule 14 of the CPC where a plaintiff is suing upon a document or relies upon document in his possession or power in support of its claim, such document has to be entered by the plaintiff in a list to be annexed to the plaint and the plaintiff shall also produce it in Court when the plaint is presented. The plaintiff shall also at the time the plaint is presented produce the documents and copies thereof Where any such document is not in the possession or power of the plaintiff, then the plaintiff, where possible, shall state in whose possession or power, the document is. If any such document ought to be produced with the plaint or entered in the list to be added or annexed to the plaint is not so produced or entered accordingly, the plaintiff may still produce the document and the Court may receive the same in evidence provided the plaintiff obtains leave of the Court at the hearing of the suit. This rule is not applicable to documents produced for the cross-examination of the `defendant’s witness’ not `plaintiff’s witness’ as the rule reads.

       Order VII relates to the production of documents by the plaintiff whereas Order VIII relates to production of documents by the defendant. Under Order VIII, Rule 1-A(4) a document not produced by defendant can be confronted to the plaintiff’s witness during cross-examination. Similarly, the plaintiff can also confront the defendant’s witness with a document during cross-examination. By mistake, instead of ’defendant’s witnesses’, the words ’plaintiff’s witnesses’ have been mentioned in Order VII, Rule 4. To avoid any confusion, we direct that till the Legislature corrects the mistake, the words ’plaintiff’s witnesses, would be read as ’defendant’s witnesses’ in Order VII, Rule 4. Court, however, hope that the mistake would be expeditiously corrected the Legislature.

       Civil Procedure Code, 1908 - Order VII, Rule 14, Order XI, Rule 14 Bombay H.C. (O.S.) Rules, 1980, Rule 172 Permissibility to produce documents. - In view of Order XI, Rule 14 of CPC and High Court Rule 172, filing of affidavit documents permissible. 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.

       The order should not be construed as making any observation on the admissibility of any of the 156 documents listed.