Misconceived applications burdening the plaintiff with costs

Rajiv Sahai Endlaw, J.

IAS No.13702/2018(u/O.XI R5(1) CPC as applicable to Commercial Suits r/w Section 151 CPC & 13703/2018(u/S.65A of Indian Evidence Act filed by plaintiff)

The counsel for the plaintiff/applicant has been heard.

2. The counsel for the plaintiff/applicant has argued (I) that the plaintiff, along with the plaint has filed its office copies of the documents, listed at serial no.(i) to (xiv) of para 2 of IA No.13702/2018 and originals of which were sent by the plaintiff to the defendant; (II) that the defendant, at the stage of admission/denial of documents, denied all the said office copies; (III) that the plaintiff, in examination-in-chief of its witness, sought to exhibit the said office copies but an objection was taken thereto by the counsel for the defendants, of the same being only office copies and not originals; and (IV) the plaintiff has thus filed IA No.13702/2018 for a direction to the defendant to produce the originals of the said documents and IA No.13703/2018 for permission of this Court to lead secondary evidence qua the said documents.

3. I have enquired from the counsel for the plaintiff/applicant as to how IA No.13702/2018 is maintainable under Order XI Rule 5(1) as applicable to Commercial Suits, invoking which it has been filed.

4. Sub-Rule (1) of Rule (5) of Order XI entitles any party to seek or the Court to order at any time during the pendency of any suit, production by any party or person, of such documents in the possession or power of such party or person, relating to any matter in question in such suit. Sub-Rule (2) provides for the notice to produce such document to be in Form No.7 in Appendix (C) to the CPC. Sub-Rule (3) provides that any person to whom such notice is issued, if does not produce the said document the Court may under Sub-Rule (4) draw adverse inference against such party.

5. The Commercial Courts Act, while amending CPC, has not provided any new format for notice to which reference is made in Sub-Rule (2) of Rule 5 of Order XI. A perusal of Form No.7 in Appendix (C) to the CPC shows the notice to be given by the Advocate for the parties seeking production of documents to the Advocate of the opposite party, of production of documents.

6. In operation of the entire Rule (5), no intervention of the Court is called for. Merely issuing notice to the counsel for defendant, of production of originals of office copies filed, would have sufficed.

7. The contention of the counsel for the plaintiff/applicant that an application will be on higher pedestal than merely issuing notice, cannot be accepted. The underlying idea of the Commercial Courts Act was/is expediency, and it appears that the plaintiff is not interested in expeditious disposal of its claim in this suit. PW1 of the plaintiff was under examination on 28th August, 2018 and whereafter the recording of evidence has been interrupted on account of the plaintiff having filed these applications and the Joint Registrar having mechanically ordered pleadings to be completed on the said applications. In the process, six valuable months have been lost.

8. Rule 5 of Order XI of the CPC as applicable to Commercial Suits, is not a new provision and similar provision exists in Order XI Rule 16 and in Order XII Rule 8 of CPC. The plaintiff, as the author of the documents, office copies of which are already claimed to have been filed by the plaintiff and originals of which are claimed to have been sent to the defendant, merely by issuing a notice under Order XI Rule 5 (supra), can proceed to prove the office copies in accordance with law.

9. For the benefit of the counsel for the plaintiff, it is explained, that the witness of the plaintiff is then required to prove (a) that the originals of the document of which office copies are filed, were delivered to the defendant; (b) the office copies produced are an exact replica of the original; and, (c) service of the notice as aforesaid, either under Order XI Rule 16 or Order XII Rule