Back
High Court Of Delhi
ASMAN INVESTMENT LIMITED - Appellant
Versus
K.L.SUNEJA - Respondent
Interim Application 10297 of 1997
Decided On : 03/03/1998
Held:
Rule 1 of Order 13 of the Code of Civil Procedure requires the parties to file the documentary evidence, in their possession or power before the settlement of issues. Rule 2 of Order 13 prohibits such documents not produced at that stage to be received at a subsequent stage of the proceedings unless good cause is shown to the satisfaction of the court for non-production thereof and the court receiving such evidence shall record the reasons for doing so. If the cause shown is good, the court must permit the applicant to produce the same. The provision is not meant to penalise the parties. The object merely is to prevent belated production of documents, so that it may not work injustice to the defendant. It, however, does not provide for any particular ritualistic formula in which the Order of the court has to be passed. The said order confers a discretion on the court to allow production of such documents at any subsequent stage of the proceedings if good cause is shown to its satisfaction for non-production thereof.
No doubt gross negligence cannot be a good cause. One cannot put premium on it. But there is a line of distinction, fine though, in gross negligence and mere inadvertence or oversight which may be human error caused by lack of professional advice or directive or partys lack of knowledge of the urgency of a document being filed early or oblivion of consequences of not doing so. Where the delay in filing is not with a design ormotivated, it may be inadvertent and not gross negligence.
Considering the nature of the two documents and the setting in which these are placed, there seems to be no apparent reason for the plaintiff to withhold these two documents or to infer, prima facie, on the face of the documents that these are fabricated.
The non-filing of the copies of the same at an earlier stage could not be said to be motivated and in all probability was due to sheer inadvertence and oversight. At this stage the question if of leave to produce. The legal efficacy to be attached to them will depend on host of circumstances that may be brought out in cross-examination of the plaintiffs witness(s) at the trial, which obviously has no relevance at this stage. Denial of their production at this stage on the ground of negligence to produce at an earlier stage, as not a "good cause", in the circumstances of the case, will be too harsh and would be a- travesty of justice. A litigant should not be made to suffer for fault of its advisors or functionaries, responsible for the lapse.
( 1 ) THIS order will dispose of plaintiff s application under Order 13 Rule 2, read with section 151 Code of Civil Procedure, seeking leave of the court to file copies of the resolution dated 27 June 1989 and General Power of Attorney dated 10 August 1989, not filed either with the plaint or on settlement of issues.
( 2 ) THE facts giving rise to the application are that the plaintiff, a public limited company, filed the present suit for specific performance of the agreement to sell dated 13 August 1986, which it claims to have entered into with the defendants in respect of property commonly known as 8, Community Centre, Saket, New Delhi-110 017. The plaint was signed and the suit was filed on behalf of the plaintiff company, by one Kamal Jhaveri in his capacity as the Power of Attorney holder of the plaintiff, having been authorised to do so by a resolution passed by the Board of Directors on 27 June 1989. In the plaint, it is averred that under the said agreement to sell the defendants agreed to sell the land and the building for a consideration of Rs. 53,50,000. 00; a sum of Rs. 5 lacs was paid as part price by means of a cheque and the balance amount of Rs. 48,50,000. 00 was payable as provided in the agreement. In addition to the said agreement to sell, a lease deed was also executed between the parties and under the said lease the plaintiff was put in possession of the property.
( 3 ) THE suit was resisted by the defendants, inter alia, on the plea that the plaint was not signed or the suit instituted by a competent person. It was denied that the said Kamal Jhaveri had been authorised to institute the suit, sign and verify the pleadings. The factum and validity of the alleged Resolution dated 27 June 1989 and the Power of Attorney purported to be in favour of Kamal Jhaveri was also denied. On the basis of the pleadings, issues were framed on 9 May 1994 and one of the issues so framed was:
"whether the suit has been instituted, signed and verified by a duly authorised person?"
( 4 ) WHILE framing issues, the court directed that before the next date the parties should file their affidavits of discovery of documents and may file such documents which are in their power and possession. After admission/denial of the documents, the suit was directed to be listed for trial. On 12 March 1996, statement of one of the plaintiff s witnesses was recorded partly. No further evidence could be recorded till 10 November 1997. On the said date, the said Kamal Jhaveri appeared as Public Witness-3 and original minutes book containing the aforenoted resolution was produced. During the course of his examination-in-chief, a copy of the resolution dated 27 June 1989 in the minutes book was sought to be filed. This was objected to by learned counsel for the defendant on the ground that the same had neither been filed with the plaint nor thereafter despite sufficient opportunity to produce the same earlier and in any case no application seeking permission to produce it had been filed by the plaintiff showing any cause for its non-production at an earlier stage. Accordingly, at the request of counsel for the plaintiff, recording of further statement of Public Witness-3 was deferred. It is under these circumstances that the present application has been filed.
( 5 ) IN the application, seeking leave to produce the two documents, it has been stated that copies of the said resolution, dated 27 June 1989 and the General Power of Attorney, dated 10 August 1989 could not be filed earlier due to inadvertance and oversight; that the error in this regard was a human error and not one which could be said to be an afterthought; that the resolution was REFERRED TO to in the plaint itself; the same is not of a class of documents that creates evidence of defendant s liability; there could be no valid objection or injustice caused to the defendant if the resolution is allowed to be produced and that if not allowed, great injustice will be caused to
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
