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HIGH COURT OF CALCUTTA
B. N. Banerjee
ASHOKA MARKETING LTD. - Appellant
Versus
ROTHAS KUMAR - Respondent
Suit 1181 Of 1962
Decided On : MARCH 28, 1966
DOCUMENTARY EVIDENCE - Production - Time - Order XIII Rule 1 of the Code of Civil Procedure - Interpretation - Discretion of Court to accept documents filed late - Factors to be considered - Rules for affidavit of documents and inspection of documents under Original Side rules of Calcutta High Court - Special provisions for commercial suits - Duty of attorneys to disclose documents fully and freely - Consequences of non-compliance with rules.
Fact of the Case:
In a commercial suit, the plaintiff company filed an affidavit of documents on May 13, 1963, but the defendants did not file their affidavit despite reminders. On April 25, 1964, the Court directed the defendants to make their affidavit forthwith. The defendants made an affidavit on May 5, 1964, disclosing documents. On February 2 and 4, 1966, the plaintiff's attorney disclosed four documents and a copy of a bill to the defendants' attorney. On March 4, 1966, the plaintiff company issued a subpoena upon an Assistant Commissioner of Commercial Taxes to produce certain documents. On March 16, 1966, the plaintiff's attorney disclosed six more documents to the defendants' attorney.
Finding of the Court:
The Court held that the procedure adopted by the plaintiff's attorney in the matter of disclosure of documents should be strongly disapproved. The Court observed that if advice on evidence had been taken earlier, it would not have been necessary for the plaintiff company to make disclosures of documents by driblets and up to the last moment, wholly in disregard of the rules of procedure governing the Court.
Issues: 1. Whether the Court has the discretion to accept documents filed late under Order XIII Rule 1 of the Code of Civil Procedure? 2. What factors should be considered by the Court in exercising its discretion? 3. What are the rules for affidavit of documents and inspection of documents under the Original Side rules of the Calcutta High Court? 4. What are the special provisions for commercial suits under the Original Side rules? 5. What is the duty of attorneys in disclosing documents fully and freely? 6. What are the consequences of non-compliance with the rules?
Ratio Decidendi: 1. The Court has the discretion to accept documents filed late under Order XIII Rule 1 of the Code of Civil Procedure, but this discretion should be exercised judicially and sparingly. 2. In exercising its discretion, the Court should consider factors such as the nature of the documents, the reason for the delay in filing, and the prejudice that may be caused to the other party. 3. The Original Side rules of the Calcutta High Court provide for the filing of affidavits of documents and inspection of documents in commercial suits. Rule 2c in Chapter XII requires all parties to file affidavits of documents within 14 days from the filing of their respective written statements. 4. Commercial suits are to be set down for hearing before a Judge appointed by the Chief Justice and are to be heard in priority to other suits. 5. Attorneys have a duty to disclose documents fully and freely to the other party, both at the time of filing affidavits of documents and subsequently if other documents come to their knowledge. 6. Non-compliance with the rules may result in the Court refusing to accept the documents or adjourning the hearing of the suit.
Final Decision: The Court accepted the cause shown by the plaintiff company and made an order in terms of prayers (a) and (b) of the Summons, but with reluctance due to the inordinate delay by the plaintiff company in the matter of disclosure of documents. The plaintiff was ordered to pay the costs of the Chamber application to the defendants.
( 1 ) RULE 1 of Order XIII of the Code of Civil Procedure provides for production of documentary evidence "at the first hearing of the suit. " The effect of non-production of documents, at the first hearing, is dealt with in Rule 2 of Order XIII, in the following language:"no documentary evidence in the possession or power of any party which should have been put has not been produced in accordance with the requirements of Rule 1 shall be received at subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for non-production thereof: and the Court receiving any such evidence 'shall record the reasons for so doing'" (underlined, here into single quotation for emphasis ).
( 2 ) RULES 1 and 2, referred to above, apply to documents in the possession and power of parties, on which they intend to rely, and also to documents which are ordered to be produced by the Court. Where documents are not in the possession and power of the parties, they cannot and therefore need not be produced at the first hearing. The language of Rule 1 is peremptory. This is so because the object of the rule is to prevent fraud by late production of suspicious documents. The Rule is not, however, penal in nature and the peremptory language of Rule notwithstanding, Rule 2 invests in Courts of law discretion to accept documents, particularly those which are above suspicion, even though not produced at the first hearing. Since Courts exist to assure fair trials, documentary evidence, even though filed late, should not generally be excluded, if such evidence be needed for proper decision of the case.
( 3 ) REGARDING the expression "first hearing of the suit", as used in Rule 1 of Order XIII and elsewhere in the Code of Civil Procedure, there appears some conflict of judicial opinion. Thus, dealing with a case under Order IX Rule 1 of the Code, 'sarju Prosad, J. ,' of the Patna High Court, observed that the date for appearance given in the summons served on the defendants was the date fixed for hearing of the case, (Palat Ahir v. Baijnath Mahton, ). A Division Bench of this Court consisting of Chitty and Richardson, JJ. however observed in the case of Biswanath Sinha v. Kali Charan Sinha 27 Cal LJ 119: (AIR 1919 Cal 800):"as the plaintiffs intended, if they could to prove the documents as part and parcel of the evidence in support of their claim, they intended to rely on them and under Order XIII Rule 1 the parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence in their possession or power on which they intend to rely. . . . . . . . . . . and all documents which the Court has ordered to be preduced'. Under Rule 2 no documentary evidence not produced under 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'. Rule 1 speaks of the first hearing of the suit but no difficulty arises as to that because 'the word 'hearing' is one of those comprehensive words which may be used with a more or less extensive meaning according to the context'. Order XVII Rule 1 which gives the Court power to adjourn the hearing of a suit draws a distinction between the hearing of the suit and the hearing of evidence. There was a hearing of the suit if not on the day when issues were settled, at any rate on the 8th October 1912, though the hearing resulted only in an adjournment". (underlined (here into ' ') for emphasis)
( 4 ) IN a later case, Taran Mandal v. Raj Chandra Mandal, AIR 1919 Cal 70 Greaves, J. , sitting singly, expressed the opinion that the words "first hearing of the suit" in Order XIII Rule 1 meant the date when for the first time the case was called on for hearing and was really gone into and not the date when the case was fixed for hearing but was not gone into at all,
( 5 ) REGARD
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