JUDGMENT
S.N. Kapoor, J.
1. I have heard the learned Counsel for the parties.
2. The grievance of the petitioner is rejection of application under Order 13 Rule 2, CPC.
3.1. It is submitted that the documents relating to the counter claim have already been admitted some documents and authenticity of those documents could not be doubted. These documents relate to creation of initial partnership, and would establish that the partnership has been dissolved from time to time by mutual consent and by which act alone is to be dissolved.
3.2. The second category documents are audit reports, balance report, profit and loss accounts, balance sheets, etc. pertaining to the partnership firm in question and relate back to the year 1992 and some of even previous period. Chartered Accountant, Sh. Bhagwat Bihari Mathur is yet to be examined. The said documents having been filed before the Income Tax and Sales Tax Authority and as such are public documents and their veracity cannot be doubted.
3.3 The third category of documents are letters of Sales Tax, Income Tax Returns, Income Tax Clearance Certificate, Assessment Order, etc., which being public documents and their veracity cannot be doubted.
3.4 The fourth category of documents are the minutes of meeting of the partners of the partnership firm indicating that Sh. Shahzad Bahadur, his daughter -Rashmi Lal and also Sh. B.B. Mathur, Auditor of the firm, actively participated in the meetings and in fact Sh. Shahzad Bahadur was being effectively consulted for auditing purposes.
4. It is submitted that in case the documents are not allowed, the petitioner would be prejudiced in his case and the view taken by the learned Trial Court is erroneous.
5. On the other hand the application was opposed for three reasons. Firstly, there was the direction of this Court vide an order dated August 20, 1997 to the Trial Court to decide this matter at the earliest. Secondly, it could not be said that the documents were not in knowledge and possession of the petitioner and they could not have been filed earlier. Thirdly, these documents should have been put to Shahzad Bahadur in cross-examination, but now after death of Shahzad Bahadur it cannot be done. The legal heirs are not in a position to admit or deny those documents.
6. It has also been contended that the revision petition is not maintainable.
7. There cannot be any doubt that the learned Trial Court has rejected the contention of the petitioner to file the documents for a no good cause was shown.
8. It is submitted that the plaintiff No. 3 was under the impression that the documents have already been filed and taken on record and so he has good cause for their non-production. In this regard, the learned Trial Court took the view that supposing for the sake of arguments the Counsel could not be aware of the documents, at least while cross-examination of Sh. Shahzad Bahadur, the factum of non-production of the documents or their urgency could have come to the notice of the Counsel. The learned Trial Court further took the view that since Sh. Shahzad Bahadur has died, plaintiff in the counter claim would not be in a position to challange the authenticity of the documents and their execution. The learned Trial Court also noticed that the application was moved by the applicant after concluding his own evidence and consequently did not find any good cause and dismissed the application to file the documents.
9. Having heard the learned Counsel for the parties and having gone through the records, it would appear that even if for the sake of arguments it is accepted that the documents may be relevant and may be coming from authentic source, so far as the record relating to Income Tax and Sales Tax returns are concerned, but at least the petitioner was supposed to show some good cause. One could not be oblivious to the directions issued by this Court to the learned Trial Court to dispose of the matter at the earliest. There cannot be any dispute with the proposition that the parties should not suffer on account of the negligence and callousness of the Counsel in not filing the documents in time for the prime concern shall always remain-Justice-in spirit of its term and not just as an ornamental word, which is crucified in the name of technical/procedural justice. But whether the Court could countenance any deliberate attempt to cause delay, is a counter question which also requires consideration? In addition to this another question which is before this Court is about the maintainability of the petition.
10. Supposing the view taken by the learned Additional District Judge is erroneous, even then in terms of the judgment of the Hon’ble Supreme Court in Madanlal v. Shyamlal, , it cannot be said that the learned Trial Court has acted with such material irregularity in exercise of jurisdiction in rejecting the application filed by the appellant that the order would provide an occasion to failure of justice. The words ‘material irregularity in exercise of jurisdiction’ do not cover either errors of fact or law. Supposing for the sake of arguments the view taken by the learned Trial Court is considered erroneous, in terms of the observations made by Supreme Court in Madanlal v. Shyamlal (supra), it would still be open to the appellant to raise this contention at the appellant stage, if decree is passed against him. Consequently, there is no occasion to assume any failure of justice or causing irreparable injury as was submitted by the learned Counsel for the petitioner.
11. On analogy of judgment in Prem Bakshi and Ors. v. Dharam Dev and Ors., , learned Senior Counsel submits that petition should be allowed and should not be rejected on the ground of technicalities. It may be mentioned that this judgment related to provisions under Order 6 Rule 17 and not under Order 13 Rule 2. Consequently, this judgment is not of much help to the petitioner in view of authoritative pronouncement in regard to provisions of Order 13 Rule 2, CPC and Section 115, CPC in Madanlal v. Shyamlal (supra).
12. For the foregoing reason I do not find any force in the petition and the petition is accordingly dismissed.
13. Parties are let to bear their own cost.