M/S. S. GOPAL KAMATH (COCHIN) (P) LTD. v. V.K. PUSHKARAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 20TH DAY OF OCTOBER 2020 / 28TH ASWINA, 1942** ## **OP(C).No.1927 OF 2018(O)** **AGAINST THE INTERIM ORDERS PASSED IN I.A.NO.2004 OF 2018 AND I.A.NO.2005 OF 2018 IN OS 224/2014 OF II ADDITIONAL SUB COURT,THRISSUR** ## **PETITIONER:** **M/S. S. GOPAL KAMATH(COCHIN) (P) LTD. 41/1172,ARANGATH ROAD, COCHIN 682 018 REPRESENTED BY ITS DIRECTOR, V. PREMNATH, AGED 63, S/O. C.V PRABHU,RESIDING AT NJRA-69, SREELAKSHMI,KARMA ROAD, ELAMAKKARA, KOCHI 682 026.** **BY ADVS. SRI.P.VISWANATHAN (SR.) SRI.SHIBU JOSEPH** ## **RESPONDENT:** **V.K. PUSHKARAN AGED ABOUT 57, S/O. KRISHNAN, PROPERITOR, TREADSON POLYMERS, KAINOOR P.O, THRISSUR 680 014.** **R1 BY ADV. JAYASHANKAR P.G. R1 BY ADV. LINTA VARGHESE** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16-10-2020, THE COURT ON 20-10-2020 DELIVERED THE FOLLOWING:** O.P.(C) No.1927/2018 2 **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ ## O.P.(C) No.1927 of 2018 ----------------------------------------------Dated this the 20[th] day of October, 2020 ## **J U D G M E N T** The petitioner is the plaintiff and the respondent is the defendant in the suit O.S.No.224/2014 on the file of the Additional Sub Court, Thrissur. 2. The suit is instituted for granting a decree for realisation of money. The plaintiff is a private limited company. The case of the plaintiff is that it is a dealer of M/s.Himadri Chemicals and Industries Limited, Calcutta and that the defendant had purchased carbon black on credit from the plaintiff as per three invoices dated 19.08.2011, 01.11.2011 and 27.07.2011. The plaintiff company has claimed a decree for realisation of the price of the carbon black allegedly sold by it to the defendant, with interest. O.P.(C) No.1927/2018 3 3. The defendant filed written statement in the suit contending that the plaintiff company is not a dealer of M/s.Himadri Chemicals and Industries Limited and that the plaintiff company is only an agent of the aforesaid company. The defendant also denied any direct transaction with the plaintiff and contended that the carbon black supplied to him by the manufacturer was of inferior quality. 4. On 02.07.2018, the Director of the plaintiff company was examined as PW1 and Exts.A1 to A12 documents were marked. He was also cross-examined by the defendant. On 09.07.2018, the plaintiff filed an application as I.A.No.2004/2018 (Ext.P3) under Order VII Rule 14 of the Code of Civil Procedure, 1908 (for short 'the Code') for receiving in evidence six documents. The plaintiff also filed another application as I.A.No.2005/2018 (Ext.P6) under Order XVIII Rule 17 of the Code for recalling PW1 for marking the additional documents produced. 5. The defendant filed objection to Exts.P3 and P6 applications, contending that the attempt of the plaintiff is to fill O.P.(C) No.1927/2018 4 up the lacuna in the evidence already adduced and therefore, the applications are liable to be dismissed. 6. As per Exts.P8 and P9 orders, the trial court dismissed Exts.P3 and P6 applications. 7. The plaintiff has filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Exts.P8 and P9 orders. 8. Heard learned counsel for the petitioner and also the respondent. 9. Order VII Rule 14(1) of the Code provides that, 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 thereof, to be filed with the plaint. Order VII Rule 14(3) of the Code states that, 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 O.P.(C) No.1927/2018 5 without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. 10. Before the Code of Civil Procedure (Amendment) Act 46 of 1999 and Act 22 of 2002, Order VII Rule 14 of the Code of Civil Procedure dealt with two types of documents, namely, (1) the document in possession or power of the plaintiff, upon which he sues and (2) any other document on which he relies. In so far as the document on which the plaintiff sues is concerned, it was required to be produced when the plaint is presented. Any other document on which he relies could be filed later, provided a list is furnished under Order VII Rule 14(2) of the Code. Order XIII Rule 1(1) of the Code required the parties to produce all documentary evidence of every description in their possession or power, at or before the settlement of issues, if they had not already been filed. Order XIII Rule 2(1) of the Code permitted the production of documents at any subsequent stage of the proceedings only on showing good cause, the satisfaction of the Court, for their non-production earlier. O.P.(C) No.1927/2018 6 11. But the Amendment Acts of 1999 and 2002 introduced certain changes. Even after the amendment, as per Order V11 Rule 14(1) of the Code, the plaintiff is required to produce, at the time of presentation of the plaint, any document upon he sues or which he relies upon and which is in his possession or power. After the amendment, Order XIII Rule 1(1) of the Code allows only those documentary evidence in original to be produced at or before the settlement of issues, where copies thereof have been filed with the plaint or written statement. But, Order XIII Rule 2(1) of the Code which, prior to the amendment, permitted the parties, on showing good cause, to file all documents at any subsequent stage of the proceedings, now stands deleted. But, the deletion of this provision stands compensated by the introduction of new sub-rule (3) of Rule 14 of Order VII by Amendment Act 22 of 2002. Therefore, the right of the plaintiff to file a document, which he has not so far produced, at the time of hearing of the suit, is retained. The only requirement is that the plaintiff shall obtain the leave of the court to produce such documents. The plaintiff need not even show good cause for the O.P.(C) No.1927/2018 7 non-production of the documents earlier which was required under Order XIII Rule 2(1) of the Code as it existed before the amendment. Similar provision is there under Order VIII Rule 1-A(3) of the Code enabling the defendant also to produce documents. 12. The discretion to grant leave under Order VII Rule 14(3) of the Code shall be exercised by the Court in a sound manner, taking into consideration the facts and circumstances of each case. Even in cases under Order XIII Rule 2 of the Code, as it existed before amendment, where the party had to show good cause for non-production of the documents at the proper stage, the Supreme Court had held that the power under that provision shall be exercised liberally and that "goods cause" requires lesser degree of proof than that of "sufficient cause (See **Madanlal v. Shyamlal : AIR 2002 SC 100** ). 13. As per Ext.P3 application, the plaintiff had requested the trial court to receive the following additional documents. (1) Certified copy of the certificate of incorporation of the plaintiff company. (2) The copy of the memorandum and articles of O.P.(C) No.1927/2018 8 association of the plaintiff company. (3) The entire file containing the invoice No.AA757 dated 19.08.2011. (4) The entire file containing the invoice No.AA1140 dated 01.11.2011. (5) The entire file containing the invoice No.AA248 dated 27.07.2013. (6) The agreement dated 06.05.2011 entered into between M/s.S.Gopal Kamath (Cochin) and Himadri Chemicals and Industries Limited. 14. The plaintiff had produced photocopy of the aforesaid documents, except items (2) and (6), along with the plaint. Therefore, production of documents shown as items (1) and (3) to (5) above, after the examination of PW1, would not have caused any surprise or prejudice to the defendant. The document produced as item (2) is only copy of the memorandum and articles of association of the plaintiff company. Production of that document at a belated stage does not cause any prejudice to the defendant. The only other document, copy of which was not earlier produced by the plaintiff, is the document shown as item (6) above, namely, the agreement dated 06.05.2011 entered into between the plaintiff company and M/s.Himadri O.P.(C) No.1927/2018 9 Chemicals and Industries Limited. At this juncture, it is to be noted that the defendant has got a plea that the plaintiff is not a dealer of M/s.Himadri Chemicals and Industries Limited but the plaintiff is only an agent of that company. In view of this dispute, the agreement between the plaintiff company and M/s.Himadri Chemicals and Industries Limited assumes significance and it would assist the court to properly decide the dispute between the parties. Since the defendant has not commenced evidence, he would get opportunity to discredit the additional documents produced by the plaintiff and establish that they are not reliable. 15. In the above circumstances, the trial court should have taken a realistic view of the matter and allowed Ext.P3 application filed by the plaintiff. Ext.P8 order passed by the trial court, dismissing the aforesaid application, is liable to be set aside, of course, on payment of reasonable amount of costs by the plaintiff to the defendant. 16. Order XVIII Rule 17 of the Code states that, the Court may at any stage of a suit recall any witness who has been O.P.(C) No.1927/2018 10 examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit. 17. The ambit and scope of the provisions contained in Order XVIII Rule 17 of the Code have been considered by this Court in **Savithri v. Sreenivasan : 1987 (2) KLT 388** and by the Supreme Court in **Vadiraj Naggappa Vernekar v. Sharad Chand Prabhakar Gogate: AIR 2009 SC 1604** , **Velusamy v. Palanisamy : (2011) 11 SCC 275** , **Bagai Construction v. M/s Gupta Building Material Store : AIR 2013 SC 1849** and **Ram Rati v. Mange Ram : AIR 2016 SC 1343** . 18. After a survey of the aforesaid decisions, in **Mathew Lawrence v. Rockey C. Neroth** [ **2020 SCC OnLine Ker 3849 : 2020 (5) KLT OnLine 1016** ], this Court has stated as follows: _“The following principles can be culled out from the decisions referred to above. The power of the Court to invoke the provision under Order XVIII Rule 17 is discretionary and ought to be exercised very sparingly. The discretion shall be exercised judicially and on well accepted principles and not arbitrarily or capriciously. The power can be_ O.P.(C) No.1927/2018 11 _exercised by the Court at any stage of the suit, that is, before pronouncing judgment. The main purpose of this rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. It is not a provision intended to be used to fill up omissions or lacunae in the evidence of a witness who has already been examined. The power under Order XVIII Rule 17 of the Code can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit. It will not be proper to invoke the power under this provision merely for the reason that recalling a witness at the instance of a party will not cause any prejudice to the opposite party. But, the inherent power of the court under Section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re-open the evidence and/or recall witnesses for further examination and it is not a power which is affected by the express power conferred upon the court under Order XVIII Rule 17 of the Code. The power under Section 151 of the Code shall be sparingly exercised when the Court feels that it is absolutely necessary to do so. Where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that_ O.P.(C) No.1927/2018 12 _non-production of such evidence earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit such additional evidence. But,in such cases, the Court shall ensure that delay in the proceedings in the suit is avoided and that the party affected is compensated by payment of costs. Deletion of the provision contained in Order XVIII Rule 17A from the Code does not mean that no evidence can be received at all, after a party closes his evidence. But, an application under Order XVIII Rule 17 of the Code, for recalling a witness for further crossexamination on points left out earlier, cannot be entertained by the Court.”_ 19. When Ext.P9 order passed by the trial court, dismissing Ext.P6 application filed by the plaintiff, is examined in the light of the principles stated above, it can be found that the trial court has not exercised its discretion properly. The trial court dismissed Ext.P6 application filed by the plaintiff on the ground that the plaintiff cannot be permitted to fill up the lacuna in the evidence already adduced. As noticed earlier, the plaintiff had produced the photocopies of the crucial documents, namely the invoices showing purchase of carbon black by the defendant, O.P.(C) No.1927/2018 13 along with the plaint. Therefore, recalling PW1 for proving the additional documents produced by the plaintiff will not amount to filling up the lacuna in the evidence already adduced by the plaintiff. The additional documents produced by the plaintiff, most of them originals of the copies already produced, would certainly assist the court to clarify the evidence on the issues and in rendering justice. The hardship caused to the defendant by the delay in producing the documents can be compensated by payment of costs. In order to bring on record a relevant fact, the court has to play an active role; no doubt within the bounds of the statutorily defined procedural law. 20. In the aforesaid circumstances, I find that Exts.P8 and P9 orders passed by the trial court cannot be sustained in law and they are liable to be set aside. However, the plaintiff has to pay costs to the defendant to compensate the hardship that would be caused to him by allowing the applications filed by the plaintiff. Considering the period of delay that occurred on the part of the plaintiff in taking proper steps for adducing proper evidence, I find that the plaintiff has to pay an amount of O.P.(C) No.1927/2018 14 ## Rs.7,000/ - as costs to the defendant. 21. Consequently, the original petition is disposed of as follows. Exts.P8 and P9 orders passed by the trial court are set aside. Exts.P3 and P6 applications filed by the petitioner/plaintiff in the trial court shall stand allowed on the condition that the petitioner/plaintiff shall deposit an amount of Rs.7,000/- (Rupees seven thousand only) in the trial court towards costs to be paid to the respondent/defendant. The parties shall appear before the trial court on 16.11.2020. The petitioner/plaintiff shall deposit the amount of Rs.7,000/- (Rupees seven thousand only) in the trial court on or before that date. If the plaintiff fails to deposit the amount within that period, Exts.P3 and P6 applications filed by it shall stand dismissed. It is made clear that this Court has not made any findings with regard to the admissibility of the documents produced by the plaintiff. The trial court shall dispose of the suit as expeditiously as possible. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr O.P.(C) No.1927/2018 15 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE PHOTOCOPY OF THE PLAINT FILED IN O.S NO. 224 OF 2014, ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, TRICHUR** - **EXHIBIT P2** **TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED IN O.S NO. 224 OF 2014, ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, TRICHUR.** - **EXHIBIT P3** **TRUE PHOTOCOPY OF I.A NO. 2004 OF 2018 FILED IN O.S NO. 224 OF 2014, ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, TRICHUR.** - **EXHIBIT P4 TRUE PHOTOCOPY OF THE LIST OF DOCUMENTS FILED IN O.S NO. 224 OF 224,ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, TRICHUR** **EXHIBIT P5** - **TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT IN I.A NO. 2004 OF 2018 FILED IN O.S NO. 224 OF 2014, ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, TRICHUR.** - **EXHIBIT P6** - **TRUE PHOTOCOPY OF I.A NO. 2005 OF 2018 FILED IN O.S NO. 224 OF 2014, ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, TRICHUR** - **EXHIBIT P7** - **TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT IN I.A NO. 2005 OF 2018 FILED IN O.S NO. 224 OF 2014, ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, TRICHUR** O.P.(C) No.1927/2018 16 **EXHIBIT P8** **TRUE PHOTOCOPY OF THE ORDER PASSED IN I.A NO. 2004 OF 2018 FILED IN O.S NO. 224 OF 2014, ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, TRICHUR** **EXHIBIT P9** **TRUE PHOTOCOPY OF THE ORDER PASSED IN I.A NO. 2005 OF 2018 FILED IN O.S NO. 224 OF 2014, ON THE FILES OF THE 2ND ADDITIONAL SUB COURT, TRICHUR.** ## **RESPONDENT'S EXHIBITS : NIL** TRUE COPY PS TO JUDGE