Mohammed Kaleel v. P. RadhaKrishnan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 11[TH] DAY OF NOVEMBER 2021 / 20TH KARTHIKA,** ## **1943** **OP(C) NO. 1972 OF 2021** **AGAINST THE ORDER DATED 1.10.2021 IN IA 2694/2018 IN OS 723/2011 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM** ## **PETITIONER/PETITIONER/DEFENDANT** **MOHAMMED KALEEL AGED 62 YEARS S/O. MOHAMMED HANEEFA, PROPRIETOR, EMARALD ENTERPRISES, GROUND FLOOR EMARALD APARTMENTS, NEW NANDAVANAM ROAD, PALAYAM, THIRUVANANTHAPURAM, PIN CODE-695 033.** **BY ADV J.HARIKUMAR** ## **RESPONDENT/COUNTER PETITIONER/PLAINTIFF** **P.RADHAKRISHNAN AGED 66 YEARS S/O. N.PURUSHOTHAMAN, RESIDING AT T.C.48/563-35, NATIONAL NAGAR, HOUSE NO.49, KALLATTUMUKKU, MANACAUD P.O., THIRUVANANTHAPURAM, PIN CODE-695 009.** ## **BY ADV.R.LAKSHMI NARAYAN FOR RESPONDENT** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON 11.11.2021 DELIVERED THE FOLLOWING:** O.P.(C)No.1972 of 2021 ..2.. **“C.R.”** ## **O.P.(C)No.1972 of 2021** **-------------------------------------------------------** ## **J U D G M E N T** This is an original petition filed challenging order passed by the Principal Sub Court, Thiruvananthapuram in I.A.No.2694 of 2018 in O.S.No.723 of 2011, for the third time. 2. This case is a typical example to see how a petition matter involving reception of documents would stall the trial. 3. The challenge in this original petition is Ext.P8 order dated 01.10.2021 in I.A.No.2694 of 2018(hereinafter will be referred as IA) in O.S.No.723 of 2011. 4. O.S.No.723 of 2011 marked as Ext.P1 in this matter is a suit for money filed by the plaintiff who is the O.P.(C)No.1972 of 2021 ..3.. respondent herein where the petitioner herein got arrayed as the defendant. The original petitioner filed IA to receive additional documents after trial had commenced. The learned Sub Judge allowed the IA and received documents initially. However, the respondent herein challenged the said order in O.P.(C)No.3043 of 2018 before this Court and as per order dated 18.12.2018 marked as Ext.P6 herein, the said order was set aside and the court below was directed to re-consider the same and pass appropriate orders. 5. Later, in tune with Ext.P6 order, the learned Sub Judge re-considered the IA subject to payment of cost of Rs.1,000/- as per order dated 01.07.2019. The respondent herein again challenged the said order before this Court by filing O.P.(C)No.1935 of 2019. This Court, by Ext.P7 order dated 29.10.2019, set aside the said order and directed the Sub Court to pass order afresh in the IA. It was thereafter Ext.P8 order dated 01.10.2021 was passed and thereby the learned Munsiff dismissed the application. O.P.(C)No.1972 of 2021 ..4.. 6. The learned counsel for the original petitioner would contend that one Compact Disc containing the recording of threatening calls made by the respondent to the petitioner and other three sets of documents found out later were sought to be received as per the IA. However, as per Ext.P8 order, the learned Munsiff dismissed the same. According to the learned counsel for the petitioner, the Sub Court failed to consider the observation made by this Court in Ext.P7 judgment holding the view that settlement of the dispute on merit would lead to finality. Further, the documents sought to be received are intended to prove the definite contention raised in paragraph 16 of the written statement (Ext.P2 herein). It is specifically contended that the Sub Judge did not follow the ratio in the decision reported in [2020 KHC 6637], **Sugandhi (died) by Lrs. and Another v. P.Rajkumar** and also the decision reported in [2010 (4) KHC 920], **Bhanumathi v. K.R.Sarvothaman and Others.** Thus, Ext.P8 order sought to be set aside. O.P.(C)No.1972 of 2021 ..5.. 7. Whereas, the learned counsel for the respondent justified the order. Paragraph 8 of the impugned order has been read out in this regard. In paragraph 8 of the impugned order, the learned Sub Judge observed that the documents now sought to be brought on record were not matters which found a place in the pleading of the defendant. Any amount of evidence tendered by a party without sufficient pleadings would go out of the zone of consideration. If the defendant was in possession of records of his transactions with the plaintiff, his brother-in-law, his wife and his son, he was expected to disclose such aspects in his pleadings. After placing on record that he had repaid the borrowed amounts to the plaintiff through the wife, son and brother-in-law of the plaintiff alone could be permitted to tender evidence in that regard. The defendant cannot be permitted to set up a new case which he never had while filing the written statement. On such a consideration, the application could only fail. O.P.(C)No.1972 of 2021 ..6.. 8. Similarly, paragraph 9 dealing with filing of additional affidavit as stated in Ext.P7 order also has been highlighted to contend that the reasons cited for non production of these documents at an earlier point of time also cannot be justified. 9. Before analysing the merits of the argument, I am inclined to refer the decision in **Sugandhi's** case( _Supra_ ). In this decision, the Honourable Supreme Court considered production of additional documents which were not filed along with the written statement. In this decision, the order of the High Court which set aside order passed by the trial court to receive documents was reversed taking note of the particular facts involved therein as the defendants therein stated that they were able to get the documents only after trial and they were not in custody of those documents to be produced in Court at the time of filing written statement. In this case, the Honourable Supreme Court held that procedural and technical hurdles shall not be allowed to come in the way of the court O.P.(C)No.1972 of 2021 ..7.. while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule(3), [while dealing with Order 8 Rule 1A(3)]. Further, the decision in **Bhanumathi's** case( _Supra_ ) also, a learned Single Bench of this Court held that the Court has power to receive additional documents in evidence at the time of hearing of the suit also. At the same time, another Single Bench of this Court in the decision reported in [2014 KHC 715], **Santhakumari v. Raghavan Unni & Another,** while dealing with Order 13 Rule 3 of the Code of Civil Procedure held that the Court has O.P.(C)No.1972 of 2021 ..8.. ample power to weed out such inadmissible document or a document which is not a valid document at all. 10. Here, as I have already pointed out, the learned Sub Judge allowed the IA twice, one at the first instance and pursuant to Ext.P6 order of this Court. Thereafter in view of Ext.P7 order passed by this Court, the IA was dismissed as per Ext.P8 order. While addressing the crucial issue regarding acceptance of documents, perusal of the additional affidavit filed as observed in Ext.P8 order of this Court is necessary. In paragraph 8 of the affidavit, it is stated that these documents were kept at the office of the defendant where one M.N.Sathi the wife of M.S.Sunil worked as an Accountant-Clerk. The above Sunil is none other than the brother-in-law of the plaintiff, the respondent herein. Again in paragraph 9, it is stated that at the time of filing written statement, the documents produced were not seen in the place where it was kept and on further enquiry, it was revealed that the above custodian at the instigation of the O.P.(C)No.1972 of 2021 ..9.. plaintiff and her husband dumped the same with the very old documents and the same could not be traced out. 11. Move on further, reference to Order 8 Rule 1A and Rule 1A(3) are apposite. Order 8 Rule 1A provides that where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. At the same time, Order 8 Rule 1A(3) permits the court to receive the documents with leave of the court at the time of hearing. Therefore, it has to be held that the power of the court to receive additional documents which were not produced along with the written statement is protected under Order 8 Rule 1A(3) and if the court feels that leave is liable to be granted to receive documents to address the real controversy between O.P.(C)No.1972 of 2021 ..10.. the parties, additional documents can be received in evidence. In **Sugandhi's** case( _Supra_ ), the Honourable Supreme Court held that procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. I have discussed the facts of the case which led to filing of this original petition for the third time in relation to one IA. In my view, the sanctity, probative value and the relevance of the documents sought to be tendered in evidence are matters to be considered during final decision of the case and there is no necessity to chain the hands of the petitioner herein from tendering the said documents in evidence. Thus, I am of the view that the defendant can be given leave to produce documents produced along with I.A.No.2694 of 2018 and the order dismissing the petition without granting leave to receive documents is liable to be set aside in the interest of justice. In view of the matter, Ext.P8 order is set aside and the learned Sub Judge is directed to receive the documents and to O.P.(C)No.1972 of 2021 ..11.. permit the defendant to tender the same in evidence as per the procedure provided under the Evidence Act. This Original Petition is allowed as indicated above. Since the Original Suit is of the year 2011, the trial court is directed to dispose of the same at the earliest at any rate within four months from the date of production or receipt of a copy of this judgment. The interim stay granted by this Court as per order dated 02.11.2021 stands vacated. Sd/- **A.BADHARUDEEN, JUDGE** rkj O.P.(C)No.1972 of 2021 ..12.. ## **APPENDIX OF OP(C) 1972/2021** ## **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE PLAINT IN OS NO.723 OF 2011 DATED 25.6.2011, PENDING BEFORE THE PRINCIPAL SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM.** **Exhibit P2 TRUE COPY THE WRITTEN STATEMENT DATED 19.11.2012 IN O.S.NO.723 OF 2011 DATED 25.6.2011 PENDING BEFORE THE PRINCIPAL SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM.** - **Exhibit P3 TRUE COPY OF THE REPLICATION DATED 14.7.2017 FILED BY THE RESPONDENT IN O.S.NO.723 OF 2011, PENDING BEFORE THE PRINCIPAL SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM.** - **Exhibit P4 TRUE COPY OF THE AFFIDAVIT IN LIEU OF CHIEF EXAMINATION FILED BY THE PLAINTIFF IN O.S.NO.723 OF 2011, PENDING BEFORE THE PRINCIPAL SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM DATED 13.9.18.** - **Exhibit P5 TRUE COPY OF THE CROSS EXAMINATION OF THE PLAINTIFF IN PART IN O.S.NO.723 OF 2011, PENDING BEFORE THE PRINCIPAL SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM.** - **Exhibit P6 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP NO.3043/2018 DATED 18.12.2018.** **Exhibit P7 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP(C) NO.1935/2019 DATED 29.10.2019.** O.P.(C)No.1972 of 2021 ..13.. ## **Exhibit P8** **Exhibit P9** **TRUE COPY OF THE ORDER IN I.A.NO.2694/2021 DATED 1.10.2021 IN O.S.NO.723/2018 OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM, RECEIVED BY THE PETITIONER ON 22.10.2021.** **TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER HEREIN DATED 7.11.2019 IN I.A.NO.2694/2018 IN O.S.NO.723/2011 BEFORE THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM.**