ORDER
N.V. Ramana, J.
1. These two Civil Revision Petitions can be disposed of by a common order for they arise of two different interlocutory orders passed in the same suit being O.S. No. 37 of 1999 on the file of the Principal Junior Civil Judge, Bobbili.
2. CRP No. 3818 of 2002 is directed against the order dated 14-8-2002, passed by the Junior Civil Judge allowing the application, filed by the plaintiff-respondent in LA. No. 485 of 1999, under Order XIII, Rule 2 of the Code of Civil Procedure, 1908, (for short ‘CPC’) for receiving the registered sale deed, dated 12-10-1988, namely the original of Ex. A1. While CRP No. 3819 of 2002 is directed against the order dated 14-8-2002, passed by the Junior Civil Judge allowing the application, filed by the plaintiff-respondent in IA No. 486 of 1999, under Order XVIII, Rule 17 CPC for recalling PW1 for marking the registered sale deed dated 12-10-1988.
3. In the affidavits filed in support of the aforementioned applications, it is stated by the plaintiff-respondent, that his father was examined as PW1 on his behalf. At the time of examination of PW1, he could not file the original registered sale deed dated 12-10-1988 because the same was misplaced, and despite his due diligence, he could not trace it. Therefore, he filed the certified copy of the original registered sale deed, which was marked as Ex. A1. Now that the original registered sale deed has been traced, and in view of the fact that the said document is very crucial to prove his title over the suit schedule property, he prays that the said document be received, and PW1 be recalled for marking the same in evidence.
4. The defendant-petitioner resisted the aforementioned applications contending that the certified copy of the registered sale deed dated 12-10-1988 was marked as Ex.A1 through PW1 under protest, that when the trial was concluded and arguments as regards the admissibility and evidentiary value of Ex.A1 were heard, and the matter posted for judgment, the plaintiff-respondent filed the present applications with a view to fill up the lacuna in their evidence, and if the original registered sale deed is received, and PW1 recalled for marking the said document, it would cause prejudice to him. He, therefore, prayed, that the applications be dismissed.
5. Upon hearing the rival contentions, the learned Principal Junior Civil Judge, by reason of the orders under revision, allowed the applications holding that the reasons assigned by the plaintiff-respondent in support of the applications, are convincing. Since the certified copy of the original registered sale deed, was already filed as Ex.A1, and the original registered sale deed, now sought to be filed is only a replacement of Ex.A1, no prejudice would be caused to the defendant-petitioner, if the said document was received.
6. The learned Counsel appearing on behalf of the petitioner-defendant submits that as the amended provisions of CPC do not provide for filing of documents at the stage of arguments, the applications filed by the plaintiff-respondent for receiving the original registered sale deed in evidence and for recalling PW1 for marking the said document in evidence, ought not to have been allowed by the Court below, and more so when the reasons for not filing the said document at an earlier stage, are not disclosed.
7. On the other hand, the learned Counsel for the plaintiff-respondent contends that the original registered sale deed was
misplaced and despite his due diligence it could not be traced. Since the certified copy of the original registered sale deed, was already received in evidence through PW1 as Ex.A1, the original registered sale deed, now sought to be filed, being only a replacement of Ex.A1, certified copy, the Court below has rightly allowed the applications, filed by him to receive the document and recall PW1 for marking the same in evidence, and more particularly when no prejudice is likely to be caused to the petitioner-defendant.
8. In the light of the rival contentions, the only point that arises for consideration is whether the original registered sale deed, which is now sought to be filed, can be received in evidence at a stage when the arguments in the case were heard and the matter was posted for judgment, and more particularly when a certified copy thereof was marked as Ex. A1 through the evidence of PW1, and whether PW1 should be recalled for marking the said document in evidence?
9. The Government of India in its endeavour to implement the Common Minimum Programme and the promises made by it to the people with respect to pendency of large volume of cases in the Courts, envisaged several judicial reforms, which includes speedy disposal of cases within a specified period of three years. With this end in view, the Government decided to implement the report of Justice V.S. Malimath Committee on judicial reforms. Accordingly, to elicit the views of various States, the Government of India convened a meeting of Law Ministers’ Conference, which was held in New Delhi. In pursuance of a resolution passed at the Law Ministers’ Conference, a Bill called Act 46 of 1999 was introduced to bring in amendments to the Code of Civil Procedure Code, 1908 so as to simplify some of the procedures relating to service of summons, attachment of property and filing
of appeals etc. Though the same was passed by both the Houses of Parliament, the same could not be notified because of controversies raised by the legal fraternity. Keeping the interests of the legal fraternity in view and the need for change, the Parliament balanced some of the provision and passed the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), which came into force on 1-7-2002. In this process of amendment to CPC, Rule 2 of Order XIII and Rule 17-A of Order XVIII were deleted to ensure speedy justice to litigants and avoid unnecessary delays. It is pertinent to note that the deleted Rule 17-A of Order XVIII was introduced earlier by Amendment Act 104 of 1976 keeping in view the difficulties. The said provision was introduced to enable a party to produce evidence which was previously not known to him or which he could not produce despite due diligence on his part.
10. By the date the applications came to be filed, amendments made to CPC by the Code of Civil Procedure (Amendment) Acts 46 of 1999 and 22 of 2002 already came into force on 1-7-2002. By reason of Amendment Acts 46 of 1999 and 22 of 2002, Order VII, Rule 14, Order VIII, Rule I, Order XIII, Rules 1 and 2, and Order XVIII, Rule 17-A CPC, were amended. Prior to the amendments, documents were expected to be produced by the plaintiff along with the plaint under the provisions of Order VII, Rule 14 and allied Rules 15 to 18, and by the defendant under Order VIII, Rule 1-A, along with the written statement. At the instance of either of the parties to the suit, for the purpose of making discovery, the Court may make an order for the production of the documents under the provisions of Order XI, Rules 12, 14 and 15. Again at or before the settlement of issues, the documents could be produced by either of the parties to the suit under the provision of Order XIII, Rule 1. At any subsequent stage, after the settlement of issues, on good cause being
shown to the satisfaction of the Court, the Court might receive the documentary evidence, which is in the possession or power of any party under Order XIII, Rule 2 CPC. Apart from the above provisions, which cover various stages of the suit or proceedings, under Order XVIII, Rule 17-A, either of the parties to the suit might produce evidence, which is previously not known to him or which he could hot produce despite due diligence. After the disposal of the suit, and during the pendency of the appeal, again under Order XLI, Rule 27, the parties can produce additional evidence, which evidence has either been refused to be received by the Trial Court or is required by the Court itself to enable it to pronounce the judgment or for any substantial cause. As already noted supra, Rule 17-A of Order XVIII was incorporated in the CPC vide Amendment Act 104 of 1976. Prior to its incorporation, the documents in the suits were received at a later stage in exercise of inherent powers under Section 151 CPC.
11. The scope of Order XVIII, Rule 17-A CPC was considered by the Patna High Court in Kamleshwari Prasad Singh v. Suja Singh, AIR 1984 Pama 152, and Adalat Choudhary v. Satan Choudhary, . The former judgement was considered in the latter judgment. The Patna High Court having considered the effect of Rule 2 read with Rule 1 of Order XIII and Rule 17-A of Order XVIII CPC, held as under:
The effect of Rule 2 read with Rule 1 of Order 13 is that even if the party did not produce any documentary evidence in possession or power at or before the settlement of issues, it can be received at a later stage provided good cause is shown to the satisfaction of the Court and further Order 18, Rule 17-A allows a party for production of not only such an evidence which was not previously known but also for production of such an evidence which could not be produced despite due diligence.
In principle it makes no difference in a case falling within the ambit of Order 13, Rule 2 and case falling within the ambit of Order 18, Rule 17-A. In both the situations, the party has to make a good cause and has to satisfy the Court of the reasons which prevented him from producing the same at a proper time. It is the satisfaction of the Court and if the Court is satisfied, the Court may permit the party to produce that evidence even at a later stage on such terms as may appear to be fit.
12. The Patna Court upon considering the purpose of introducing Rule 17-A of Order XVIII CPC, held thus:
On a perusal of this rule, it is apparent that it was inserted to permit production of additional evidence, which was not within the party’s knowledge or which could not be produced when leading evidence, at a later stage. The object of inserting Rule 17-A of Order XVIII is very clear. It is often seen that application for additional evidence is filed at the appellate stage, and if filed it has to be dealt with in accordance with law and it naturally delays the disposal of the suit. In my opinion, it is with this view that the provision was enacted in 1976 so that the filing of application for additional evidence at a later stage i.e., appellate stage is minimized. Rule 17-A of the Code, as stated earlier, allows a party for production of not only such an evidence which was not previously known but also for production of such an evidence which could not be produced despite due diligence. In principle, in my opinion, it makes no difference in a case falling within the ambit of Order XIII, Rule 2 of the Code and a case falling within the ambit of Order XVIII, Rule 17-A of the Code. In both the situations, the party has to make a good cause and has to satisfy the Court of the reasons which prevented him from producing the same at a proper time. It is the satisfaction of the Court, and if the Court is satisfied, the Court may permit the party to produce that evidence even at a later stage on such terms as may appear to be fit.
13. By reason of repeal of Rule 17-A of Order XVIII CPC by Amendment Act 22
of 2002, the position which existed prior to the incorporation of the said Rule in the year 1976, stood restored. The Apex Court in a very recent judgment in Salem Advocates Bar Association v. Union of India , considered the effect of deletion of Rule 17-A of Order XVIII CPC, and held:
We find that in the Code of Civil Procedure, 1908 a provision similar to Rule 17-A did not exist. This provision, as already noted, was inserted in 1976. The effect of the deletion of this provision in 2002 is merely to restore status quo ante, that is to say, the position which existed prior to the insertion of Rule 17-A in 1976. The remedy, if any, that was available to a litigant with regard to adducing additional evidence prior to 1976 would be available now and no more. It is quite evident that Rule 17-A has been deleted with a view that unnecessarily applications are not filed primarily with a view to prolong the trial.
14. By deletion of Rule 2 of Order XIII CPC, it appears that no documentary evidence can be produced after the settlement of issues, but on a critical examination of the various provisions in the CPC, the position would be otherwise. In this context, the amended provisions of Rule 14 of Order VII may be read in juxtaposition with that of the unamended provisions of Rule 14 of Order VII CPC:
Unamended provisions of Order VII,
Rule 14 CPC
14. Production of document on which plaintiff sues :–(1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
(2) List of other documents :–Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.
Amended provisions of Order VII 14 CPC
14. Production of document on which plaintiff sues or relies :–(1) Where a plaintiff sues upon a document on relies upon a 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 thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the plaintiff 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, shall not without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff’s witness, or, handed over to a witness merely to refresh his memory.
15. Under Sub-rule (1) of Rule 14 of Order VII of the unamended CPC, the plaintiff shall produce the document on which he sues, and which is in his possession or power, in the Court at the time of presentation of plaint, and under Sub-rule (2) thereof, the plaintiff shall give a list of the documents on which he relies, irrespective of whether they are in his possession or power or not, as evidence in support of his claim, which shall be annexed to the plaint. However, the amended provision of Sub-rule (1) of Rule 14 of Order VII CPC provides that the plaintiff shall produce the document on which he sues or relies, which is in his possession or power, in support of his claim, by entering such documents in a list, which shall be presented along with the plaint, and he shall at the
same time, deliver the document and a copy thereof, to be filed with the plaint. Sub-rule (2) thereof provides that if the document on which the plaintiff is placing reliance is not in his possession or power, then he shall, wherever possible, state in whose possession or power it is. Sub-rule (3) thereof, mandates that the document which ought to have been filed at the time of the presentation of the plaint or entered in the list or added or annexed to the plaint, but was not done so, shall not without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. In other words, notwithstanding the mandatory provision of Sub-rule (1) of Rule 14 of Order VII of the amended CPC, Sub-rule (3) thereof, which was introduced by Amendment Act 22 of 2002, provides that if the document which ought to have been produced by the plaintiff at the time of presentation of plaint or entered in the list or added or annexed to the plaint, shall be received in evidence on his behalf at the hearing of the suit, only with the leave of the Court. It is pertinent to note that Sub-rule (3) of Rule 14 of Order VII of amended CPC did not find place in the Amendment Act 46 of 1999. Perhaps, realizing the difficulty, the Parliament has incorporated Sub-rule (3) to Rule 14 of Order VII CPC. Similar such provisions have been incorporated in Order VIII where the defendant in case of counter-claim, is obliged to file the document along with the written statement. Rule 1-A of Order VIII is a new provision, which is akin to Rule 14 of Order VII CPC, the only difference being that the former applies to the defendant and the latter applies to the plaintiff. The provision which enabled the parties to produce evidence with the leave of the Court under Rule 2 of Order XIII has been removed and transplanted virtually in Order VII, Sub-rule (3) of Rule 14 and Order VIII, Sub-rule (3) of Rule 1-A CPC. These two provisions, now enable the parties to produce the documents at the hearing of
the suit, which have not been produced along with the plaint or written statement, as the case may be, Since Sub-rule (3) of Rule 14 of Order VII and Sub-rule (3) of Rule 1-A clearly contemplate the production of evidence with the leave of the Court at the time of hearing of the suit, a stage which is subsequent to the filing of the plaint and written statement, I am of the opinion that the CPC has not provided for a provision which enables the parties to produce such evidence at the conclusion of the trial and before the pronouncement of judgment, the stage which has been clearly envisaged under Rule 17-A of Order XVIII whereunder, the Court may recall a witness at any stage of the suit for examination. While that be the position, I see no reason as to why the parties should not be permitted to produce the documentary evidence, and more so when the Appellate Court is authorized to receive additional evidence under Rule 27 of Order XLI CPC. In order to avoid such a situation, it would be better if the trial Court itself permits the parties to produce documentary evidence which were not within their knowledge despite due diligence before the conclusion of the hearing of the suit.
16. As is well known, procedures are manmade. Procedures should not come in the way of advancement of justice, but should be a facilitator of justice. In this regard, it is apt to refer to some observations made by the Apex Court in Bhagwan Swaroop v. Mool Chand, , which read as under:
But the law of procedure devised for advancing justice and not impeding the same……… a Code of procedure designed
to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up.
17. It may be reiterated that out of three conditions enjoined under Rule 27(1)
of Order XLI CPC, the first two conditions pertain to non-production of the documents on account of the fact that either such evidence was refused by the Trial Court or such evidence was not within the knowledge of the plaintiff or the defendant, as the case may be, despite exercise of due diligence during the pendency of the suit. Even if the two requirements are not satisfied, the Appellate Court, notwithstanding the same, as its requirement, can receive the documents. While that be the position, so as to prevent such a contingency, why not the Trial Court permit the parties to produce such a document if it is convinced that such a document is required for an effective adjudication of the suit, without driving the parties to resort to the provisions of Rule 27 of Order XLI CPC and relieve the Appellate Court of the task of getting such documents as a requirement of the Court. Even otherwise, the inherent powers of the Court under Section 151 CPC have been saved, and nothing prevents the Court from receiving the documents in exercise of its inherent power, in the absence of any express prohibition to that effect in the CPC.
18. It is no doubt true that at the conclusion of the trial in the suit and at the time when the arguments were heard and the matter posted for judgment, the two interlocutory applications came to be filed by the respondent-plaintiff. But in the instant case, Ex.A1, certified copy of the original registered sale deed, was marked through the evidence of PW1, though under protest as a secondary evidence. The objection taken by the petitioner-defendant is that such secondary evidence cannot be permitted to be let in, in the absence of any proper explanation as to why the primary evidence could not be produced. Inasmuch as the respondent-plaintiff had already filed the certified copy of the original registered sale deed, under Ex.A1, and the original registered sale deed now sought to be filed
is only a replacement of Ex.A1, I am of the opinion that no prejudice would be caused to the petitioner-defendant.
19. For the foregoing reasons, I see no merit in the CRPs. and they are accordingly dismissed. In view of the dismissal of the CRPs., the original registered sale deed, a certified copy of which was already marked as Ex.A1 through the evidence of PW1, shall be received, and PW1 shall be recalled for marking the said document in evidence. No costs.