Headnote:Code of Civil Procedure, 1908–Order 18 Rule 17 read with Order 7 Rule 14 and Section 151–Recall of witness and production of additional evidence–Original bills have not been placed on record by plaintiff till the date of filing of such application–During entire trial, those documents have remained in exclusive possession of plaintiff but still plaintiff has not placed these bills on record–At this belated stage and after conclusion of evidence and final arguments and after reserving matter for pronouncement of judgment, plaintiff cannot be permitted to file such applications to fill lacunae in its pleadings and evidence led by him–Final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, plaintiff came forwards with such an application to avoid final judgment against it–Such course is not permissible even with aid of Section 151 CPC–Appeal allowed. (Paras 11 to 14)
(2009)4 SCC 410; (2011)11 SCC 275–Relied.

Judgement Key Points

Key Points: - The judgment discusses recall of witnesses under Order XVIII Rule 17 CPC and the cautious use of this power, limiting it to clarifying evidence, not filling lacunae. (!) (!) (!) - It analyzes the interplay of Order VII Rule 14 CPC (production of documents) and the need for documents to be produced in the plaint, with non-production generally not allowed without leave. (!) (!) (!) (!) - It emphasizes Section 151 CPC inherent powers to prevent abuse of process and to ensure ends of justice, but cautions against routine or belated attempts to introduce new documents or recall witnesses, especially after final arguments and judgment reserved. (!) (!) (!) (!) - It cites Vadiraj Naggappa Vernekar and Velusamy decisions to illustrate limited, justified use of recalle/late evidence, including costs and time-bound qualification. (!) (!) (!) (!) - It holds that the plaintiff cannot be permitted to file belated applications to fill its own lacunae when documents were available during trial and were not produced, and thus the High Court’s reversal was incorrect. (!) (!) - The trial court’s decision to dismiss the applications was restored, and the appeal was allowed with no costs. (!) (!)

What is the test to recall a witness or admit additional documentary evidence under Order XVIII Rule 17 and Order VII Rule 14 read with Section 151 CPC?

What are the proper limits and consequences of invoking Section 151 CPC and recall/apply for additional evidence after final arguments and judgment reserved?

What determines whether a trial court may permit reproduction of documents not produced earlier to fill lacunae in pleadings and evidence?

Judgment :-

P. Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the order dated 23.08.2011 passed by the High Court of Delhi at New Delhi in C.M.(M) No. 707 of 2010 (Civil Revision No. 707 of 2010) whereby the learned single Judge of the High Court allowed the revision filed by the respondent herein and set aside the order dated 25.02.2010 of the Additional District Judge, Delhi.

3) Brief facts:

(a) The appellant is a proprietorship concern dealing in interior decoration and construction work and Mr. Lalit Bagai is the sole proprietor of the said concern. The respondent is a partnership firm registered with the Registrar of Firms vide Registration No. 1237/93 dated 07.06.1993 and is engaged in the business of sale and supply of building materials.

(b) Admittedly, the appellant and respondent have often transacted with each other. According to the respondent, the appellant made various purchases on credit from them for which payments were made in parts and the same were credited to his account maintained by them. It is alleged by the respondent that after adjusting all the payments being made by the appellant, an amount of Rs.4,35,250.18 is due against his firm. Despite repeated demands, requests, and reminders, the appellant has not cleared the outstanding amount. Therefore, the respondent sent legal notice dated 11.04.2005 to the appellant through his counsel calling upon him to pay the outstanding dues along with interest @ 2% per month. Despite notice, the appellant did not pay any amount, therefore, the respondent instituted a suit against him for recovery of sum of Rs.4,35,250.18 along with interest accrued thereon. After the arguments were concluded in the suit on 27.10.2009, the matter was adjourned for judgment on 03.11.2009.

(c) In the meantime, on 31.10.2009 the respondent moved two applications, one under Order VII Rule 14 read with Section 151 of the Code of Civil Procedure, 1908 (in short “CPC”) for placing on record certain documents and the other under Order XVIII Rule 17 read with Section 151 of CPC for seeking permission to recall PW-1 for proving certain documents by leading his additional evidence. By order dated 25.02.2010, the Additional District Judge, Delhi dismissed both the applications.

(d) Dissatisfied with the said order, the respondent filed revision petition being CM (M) No. 707 of 2010 (Civil Revision No. 707 of 2010) before the High Court of Delhi. The learned single Judge of the High Court by impugned order dated 23.08.2011 allowed the revision and set aside the order dated 25.02.2010 passed by the Additional District Judge, Delhi.

(e) Aggrieved by the said order, the appellant has preferred this appeal by way of special leave.

4) Heard Mr. Siddharth Yadav, learned counsel for the appellant and Mr. Jinendra Jain, learned counsel for the respondent.

5) The only point for consideration in this appeal is whether the plaintiff has made out a case for allowing the applications one filed under Order XVIII Rule 17 read with Section 151 CPC and another application under Order VII Rule 14 read with Section 151 CPC? The trial Court dismissed both the applications, however, the High Court by the impugned order set aside the order of the trial Court and directed taking on record the bills which are proposed to be filed by the plaintiff, granted permission to recall PW-1 to prove those bills. The High Court passed such order in favour of the plaintiff subject to payment of cost of Rs.5,000/-.

6) In order to find out the acceptability of the impugned order or not, it is useful to refer the relevant provisions of the CPC which read thus:

“Order VII Rule 14

14. Production of document on which plaintiff sues or relies.-

(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereo

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2013 Supreme(SC) 189

Supreme Court of IndiaP. SATHASIVAM & JAGDISH SINGH KHEHAR, JJ.M/s. Bagai Construction Thr. Its Proprietor Lalit Bagai – AppellantVersusM/s. Gupta Building Material Store – RespondentCivil Appeal No. 1787 of 2013 (Arising out of S.L.P. (C) No.35268 of 2011) Decided On : 22-02-2013

What is the test to recall a witness or admit additional documentary evidence under Order XVIII Rule 17 and Order VII Rule 14 read with Section 151 CPC?

What are the proper limits and consequences of invoking Section 151 CPC and recall/apply for additional evidence after final arguments and judgment reserved?

What determines whether a trial court may permit reproduction of documents not produced earlier to fill lacunae in pleadings and evidence?

Supreme Court of India
P. SATHASIVAM & JAGDISH SINGH KHEHAR, JJ.
M/s. Bagai Construction Thr. Its Proprietor Lalit Bagai – Appellant
Versus
M/s. Gupta Building Material Store – Respondent
Civil Appeal No. 1787 of 2013 (Arising out of S.L.P. (C) No.35268 of 2011)
Decided On : 22-02-2013