1. In this petition plaintiffs of Civil Suit No. 3/2011 have challenged the order passed by the Principal Civil Judge, Vanthali, Junagadh dated 3rd August 2011 on an application Exh. 78, requesting to produce documents at a belated stage.
2. To briefly narrate the facts for understanding the controversy between the parties, the petitioners herein are the plaintiff who entered into agreement to sell the land bearing survey No. 386/2 being 1 acre and 20 gunthas of village Shahpur, Taluka Vanthali for total consideration of Rs 1,05,000/ from one Shri Gordanbhai Kanjibhai. Pursuant to oral agreement arrived at by and between the parties dated 11th November 1997, a registered agreement to sell was entered into on 8th December 1997 for the said land and the cheque of Rs 80,000/ was handed over to Shri Gordanbhi Kanjibhai. All possible preparations for executing registered sale deed in favour of petitioners was done, however, since, the trust was required to obtain necessary permission for purchasing the agricultural land from revenue department through the power of attorney of Shri Gordanbhai gave no objections on 10th December 1997 and on the basis thereof, Deputy Collector permitted the trust to purchase the agricultural land on 28th February 2000. The permission for purchase was for educational purpose, however, as the trust needed it for the purpose of agricultural and agricultural experiments, a revised request was made. In the meantime on 28th February 2000, Shri Gordabhai passed away. The legal heirs of Shri Gordanbhai refused to execute registered sale deed in favour of the trust and therefore, the suit has been filed against them seeking specific performance of the agreement.
3. In the suit the plaintiff's examinationinchief is over and it closed evidence on 16th July 2010. On 28th July 2010 for the the first time it is averred that the respondents raised the contention that Shri Jivrajbhai Arjanbhai Ghatia who had accepted the power of attorney on behalf of trust since, is not impleaded as party the suit requires to be dismissed for nonjoinder of necessary party.
4. The trustee Shri Jivrajbhai Arjanbhai Ghatia since had expired on 29th May 1995, he was replaced by Shri Dolatpur Sunderpuri Goswami 2nd February 1996. The said minute book is of the year 1996 and therefore there was a need to bring these details on record.
5. In the aforementioned background the petitioner trust sought permission to place on record three documents (1) a resolution passed for condolence of death of Shri Jivrajbhai Arjanbhai Ghatia dated 2nd February 1996 his death certificate (2) appointment of Dolatpuri Sunderpuri Goswami as a trustee in place of Shri Jivrajbhai Arjanbhai Ghatia.(3) Death Certificate of the trustee Shri Jivrajbhai.
5.1 An application preferred was rejected by the learned judge on the ground that such production was sought after three years of framing of the issues.
Being aggrieved by the impugned order dated 3rd August 2011, this petition is preferred under Article 227 of the Constitution of India where both the sides have been heard at length.
6. Learned advocate for the petitioner, Ms. Ajmera urges that the evidence of the respondents is yet to be over and sufficient opportunity would be made available for rebutting evidence. She further urged that the reasonings are neither sound nor cogent and since, the documents were very old it took sometime for production of the same and after strenuous search, the petitioner could lay hands on the same.
7. Learned advocate appearing for the respondent urged that Rule 54 and 55 of Bombay Public Trust (Gujarat) Rules read with section 21 of Bombay Public Trust Act would require that change in the name of the trustee to be made into 30 days of the death of the trustee. Therefore document produced after lapse of three years of the filing of the suit, are rightly not accepted by the Court and no interference is required under Article 227 of the Constitution of India.
Reliance is placed on judgment of Supreme Court rendered in the case of Billa Jagan Mohan Reddy and Another Vs. Billa Sanjeeva Reddy and Ors reported in 1994(2)G.L.H. 160. In the matter before the Apex Court documentary evidences were produced at the stage of arguments and both subordinate courts and High Court refused the production of documents. The Supreme Court in the said judgment set aside the orders by holding that the Courts were not justified in refusing to the production of documents as the party was not in possession and certified copies were obtained from the public record. It also further held that explanation for delay is not so rigorous as found under section 5 of the Limitation Act and when the documents are relevant and necessary, in the interest of justice, the Court in appeal would also receive the same.
8. In another decision rendered in Saifudin Mosinali Vs Vora Rajabali Taiyabali reported in 1983 G.L.H. 120 consisting of counterfoils of rent receipts and registered gift deed long after the issues were framed. In the application for production, the plaintiff did not state any reason for producing the documents at a belated stage. The trial court rejected the application as documents were not produced at a appropriate stage and no ground were made out for late production.
This Court held that recording of evidence did not commence for long time after settlement of issues and documents sought to be produced were not likely to be fabricated. This Court therefore held that the order of rejection was erroneous and the production of documents was allowed.
The High Court of Rajasthan in the case of IBP Company Ltd and Anr. V/s Chandrabai and others reported in 1999 Law Suit (Raj) 375 dealt with such a situation where plaintiff's request of production of documents was rejected by the trial court allowing the application under Subrule (2) of Rule 2 of O.13 CPC wherein the Court has held that solemn object of Subrules (1) and (2) of Rule 2 of Order 13. Code of Civil Procedure is not to penalise the parties but the Courts are given discretion to receive any documentary evidence at later stage of the suit after settlement of issues provided there is no suspicion in the mind of the Court relating to authenticity of documents sought to be produced. It further held that these provisions have to be construed liberally so as to advance cause of justice between the parties and whether the documents were public or private if its authenticity is beyond suspicion should be ordinarily received in evidence by the trial courts under Subrule (1) and Subrule (2) of Rule 2 of Order 13 of Code of Civil Procedure for complete and effective adjudication of the controversy between the parties, leaving the question relating to relevancy and admissibility to be decided at later stage of the suit as envisaged under Rule 3 of Order 13, CPC. It further held that while receiving evidence after settlement of issues Courts are under legal obligation to give opportunity of rebuttal to the other party against whom such documentary evidence is received.
9. As can be seen from the scheme of the Code of Civil Procedure in light of aforementioned decisions, it is required of the plaintiff to produce documents on which plaintiffs sues or relies upon along with the plaint presented by him. The plaintiff is also required to deliver the documents and copy thereof to be filed with the plaint and if such documents is not in the possession or power of plaintiff he is required to state in whose possession or power it is. A document which is not produced with the plaintiff is not permitted to be produced before the leave of the Court however, exception contemplated is for documents produced for the crossexamination of defendants witness for a refreshing memory.
10. Order XI Rule 14 also speaks of the power of the Court at any time during the pendency of the suit, to order the production by any party thereto, upon oath of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such document, when produced, in such manner as shall appear just.
11. As can be noted from the order impugned the Court denied production of these documents on the ground that the scheme of Civil Procedure Code does not permit production of these documents at a belated stage. The Court found no sound or cogent reason for nonproduction of documents earlier. The Court also held that minute book of the year 1996 is an official record of the trust. It is expected to be preserved by the trust and therefore also nonfinding of these documents is not a ground in late production.
11.A. The Civil Procedure Code not only requires of the parties to produce the documents before the framing of the issues but it also requires the parties to produce the original documents prior to the framing issues.
11.B. It would be worthwhile to reproduce Order XIII Rule 1 at this stage :
Original documents to be produced at or before the settlement of issues :
(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with paint or written statement.
(2) The Court shall receive the documents so produced.
Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
(3) Nothing in subrule (1) shall apply to documents
(a) produced for the crossexamination of the witnesses of the other party ; or
(b) handed over to a witness merely to refresh his memory By virtue of the amendment in the year 1999 rules 1 and 2 of Order XIII of which has been provided that the original documents of which copies have been filed with the plaint and written statement shall be submitted before the settlement of issues is made by the Court.
12. Admittedly in the instant case the plaintiff has produced the document after the framing issues and after the evidence of the plaintiff was over in its application which has been mentioned vide Exh. 59 that requirement of producing these documents arose when the affidavit in lieu of examination in chief was produced by defendant No. 1. A specific averment was made that these documents are public document which are relevant and obtained from the government record and they cannot be concocted by the party. Accordingly, request was made to allow these documents.
13. Ordinarily this Court is expected to exercise powers under Article 227 very sparingly unless there is a grave injustice to the parties on account of any erroneous order or interpretation. This Court would not have interfered with the order of the trial court but for the possible defeat of substantive justice on technical ground. These documents which are denied to be produced on record are public documents. Admittedly it is not the case of the other side that they can be concocted. It is a fact that plaintiff petitioner produced them after its evidence was over. However, as can be noted from the pleadings, when objection was raised with regard to the nonjoinder of the power of attorney of the Trust Shri Arjanbhai Ghatia, who died long ago, his death certificate, condolence resolution as also document of replacement of trustee in his place were necessary to be brought on record otherwise that would go to the very root of the case and possibility cannot be ruled out that the said denial would materially affect the outcome of the suit, if this technicality would be allowed to be prevailed. In such circumstances when the plaintiff succeeded to explain that the minute book of year 1996 of trust was unavailable and it needed an endeavour to find out these details, the Court ought to have allowed these documents.
14. It is expected of the parties to produce relevant and all necessary documents along with the plaint as provided under the Code, however, at a later stage with the Court's permission, such documents can be allowed when there is sufficiency of reasons being put forth. As needed in the decisions discussed hereinabove, necessity of the explanation of delay should not be made so rigorous as in case of Section 5 of the Limitation Act particularly when authenticity of documents is not doubtful and moreover, the Court cannot be oblivious of the fact that ultimately procedural law is a handmaid of substantive justice and therefore, merely because there was delay in producing these documents which are required to be received in evidence in wake of the affidavit filed by the defendant, denial of receiving these documents in evidence, in the opinion of this Court was not justifiable. Particularly in wake of the controversy which was required to be adjudicated by and between the parties in the pending suit. Again, even if the provisions of Bombay Public Trust Act and also Rules 54 and 55 of Trust Rules necessitate production of such certificate within 30 days of the death of the trustee that would not mean that the documents of years 1995 and 1996 ought to be available under all circumstances. These being the public documents having no questioning on their genuiness, in the opinion of this Court disallowance of documents at the stage when respondent could have sufficient opportunity to rebut the same, requires interference from this Court. Accordingly this petition is allowed quashing and setting aside the order impugned dated 3rd August 2011 perused below Application Exh. 78. This petition stands disposed of in above terms.
(Ms. Sonia Gokani,J.) mary//