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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.M. Sundresh, C. Saravanan, JJ.
Punjab and Sind Bank – Appellant
Versus
M/s. Dewa Properties Limited – Respondent
O.S.A. No. 450 of 2018 and C.M.P. No. 20608 of 2018
Decided On : 11-02-2019
Civil Procedure Code,1908 - Order 14,,7,37,43,18,7 - Rule 1,17A,17,8,14,14(3), 14(4) - Section 2(9) - Evidence Act,1872 - Section 15 - Tamilnadu Rent Control Act (1960) - Section 4 - Small Causes Court for fixation of fair rent under Section 4 of Tamilnadu Rent Control Act - In said proceeding appellant has not disputed with character of possession as lease - However in above suit filed in year appellant has sought for a specific performance to direct respondent to execute a years sale cum lease in its favour - In said suit after cross examination of and after cross examination of appellant filed Application under Order 14 Rule 8 of O.S Rules R/W - Section 151 of C.P.C to mark other documents - It was stated that these documents are nothing but communication exchanged between appellant and respondent between and would establish case appellant - Several other applications also came to be filed by appellant to stay said RCOP - Those applications were closed as not pressed for - Application was contested by respondent herein stating that evidence was closed as early as and that when case was to be argued attempt of appellant to introduce documents was not bonafide - It was stated that there are no sufficient reasons to allow said application - Whether appellant was entitled to seek leave of court to mark additional document at an advanced stage of case after evidence was closed and case was waiting to be heard on merits? - Held, Court find that application to introduce additional evidence was filed by appellant belatedly in year and therefore appellant was not diligent - Suit was filed in year - Trial was completed in year and evidence was closed - Appellant waited for another years to lapse - Thereafter appellant filed above application to mark additional documents - Single Judge in Court view has rightly refused to exercise discretion in favour of appellant - As a plaintiff appellant ought to have laid suit based on documents that were in its possession or at its head office - In case it did not have such document appellant should have reserved right under Order 7 Rule 14 (2 ) of CPC - On other hand appellant has stated nil under list of document in plaint under aforesaid provision - Further, Order 7, Rule 14 of CPC indicates that plaintiff can introduce documents which were not in possession at time of filing this suit only with leave of Court In this case this is not case - Appellant cannot mark documents which were in its possession but were not filed along with plaint - Marking of additional documents which were neither specified in plaint nor in contemplation at time of filing of suit but in possession of plaintiff is not permissible except under Order 7, Rule 14(4) during cross examination of defendant - Further documents appear to have been introduced in an apparent bid to make out a new case after trial was complete - Therefore even on that ground Court do not wish to interfere with order of Single Judge - This Court say after taking note of stand taken by appellant in counter affidavit filed in fair rent proceeding and averment in plaint admitting status as a tenant - Though relief sought for in suit in one for sale cum lease it is only a lease cum sale as it is not happily worded and as could be seen from averments - Reason for filing application after a decade and a half does not sound convincing - Court are of view it is only for attempt to drag on Suit which is nearing finality - Appeal Dismissed
JUDGMENT :
C. Saravanan, J.
The above O.S.A has been filed, against the fair and decretal order dated 12.10.2018 in Application No.6787 of 2018 in C.S.No.668 of 2004. The above suit was filed by the appellant herein for a specific performance to direct the respondent herein to execute and register a 99 years sale cum lease in favour of the appellant herein based on the alleged contract as per the offer letters dated 12.11.1980 and 19.09.1983 and acceptance letters dated 24.11.1980 and 19.04.1984.
2. The trigger for filing the above suit appears to be a previously instituted rent control proceeding by the respondent and against the appellant vide RCOP.No.1109 of 2001 filed before the Small Causes Court for fixation of fair rent under Section 4 of the Tamilnadu Rent Control Act (1960). In the said proceeding, the appellant has not disputed with character of the possession as lease. However, in the above suit filed in the year 2004 the appellant has sought for a specific performance to direct the respondent to execute a 99 years sale cum lease in its favour.
3. In the said suit, after the cross examination of PW-1 on 27.07.2012 and after cross examination of DW-1 on 27.08.2012, the appellant filed Application No.6787 of 2018 on 21.08.2018 under Order 14, Rule 8 of O.S Rules R/W. section 151 of C.P.C to mark 13 other documents.
4. It was stated that these documents are nothing but communication exchanged between appellant and respondent between 1978 and 1981 and would establish the case the appellant herein. Several other applications also came to be filed by the appellant to stay the said RCOP. Those applications were closed as not pressed for.
5. Application No.6787 of 2018 was contested by the respondent herein stating that the evidence was closed as early as on 27.08.2012 and that when the case was to be argued, the attempt of the appellant to introduce 13 documents was not bonafide. It was stated that there are no sufficient reasons to allow the said application.
6. The learned single Judge, by an order dated 12.10.2018, rejected the prayer for introducing these documents with the following observations :-
Therefore, it is clear that though the provisions of the Order 18, Rule 17A was removed, the parties were permitted to produce evidence but however on the condition of their satisfying the court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time of the party leading evidence on such terms as may appear to be just. In fact, the provisions of Order 7, Rule 14 (3) also spells out a similar provision even if a document which ought to be produced 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 the same shall not be received in evidence post trial except by the leave of the court at the hearing of the suit. Order 18 deals with the hearing of the suit and examination of witnesses and it is after this stage that the parties move to the stage of arguments. The like procedure is also contemplated under the Original Side Rules narrated supra. Given below is the chronology of the dates and events with reference to the suit on hand.
7. The learned Single Judge has observed that the appellant has not disputed the existence lease and therefore on a conjoint reading of the plaint and the counter filed by the respondent herein the case of the appellant was 99 years lease in terms of Letter of Offer dated 21.11.1980 and 19.09.1993 and the Letter of Acceptance dated 24.11.1930 and 19.04.1934.
8. The learned Senior counsel for the appellant submitted that the appellant is seeking to mark additional documents only to establish their rights through the documents which they could not locate at the time of filing of the suit.
9. It was submitted that there was no estoppel based on the stand taken in the RCOP and therefore the law did not prohibit the appellant from taking a correct stand in a subsequent p
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