Relevant provisions
In the Code of Civil Procedure, 19081 (hereinafter referred to as “the Code”); provisions pertaining to the production of documents by parties on their own volition are contained in Rule 14 of Order 72, Rule 17 of Order 73, Rule 1-A of Order 84, Rule 1 of Order 135, proviso to sub-rule (1) of Rule 4 of Order 186 and Rule 27 of Order 417.
Earlier provisions and the parliamentary intention behind the amendments
In the original unamended Code, Rule 14 of Order 7 read as under:
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.
List of other documents.—(2) 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.
Apart from this, Rule 15 of Order 7 (deleted), Rule 18 of Order 7 (deleted), Rule 1 of Order 13 (substituted by a new provision), Rule 2 of Order 13 (deleted), Rule 17-A of Order 18 (deleted) of the Code were other relevant provisions in this regard.
The position before the 1999 Amendment8, was that the plaintiff was only required to present along with the plaint the document on which he sued; other documents on which he relied for his claim were only required to be entered into a list which was to be filed along with the plaint. All the documentary evidence on which the plaintiff relied for his claim were to be filed in court before or at the time of the settlement of issues after which only on showing good cause (in light of the unamended Rule 1 of Order 13 of the Code) for the non-timely production, the documents not produced earlier could be taken on record.
It was felt that these provisions led to delay in disposal of cases.
In the year 1997, a Bill was introduced by which the abovementioned original provision of Rule 14 of Order 7 of the Code was sought to be substituted by a new provision.
The new provision in the 1997 Bill read as under:
14. Production of document on which plaintiff sues or relies.—
(1) 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.
(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) Where any such document or a copy thereof is not filed with the plaint under this rule, it shall not be allowed to 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 witnesses, or, handed over to a witness merely to refresh his memory.
As per the new provision, the plaintiff had to file documents on which he sued or relied on for his claim at the time of filing the plaint, and it was provided that thereafter he could not produce such documents in the course of the proceedings in the suit. The Bill was passed by both the Houses of Parliament and also received the assent of the President. The Act was titled the Code of Civil Procedure (Amendment) Act, 1999.
On the passing of the Amendment Act, 1999, there were widespread agitation by the advocate community across the country. Resultantly, the then Law Minister, Shri Jethmalani, made a statement in a House of Parliament that the Amendment Act, 1999 would not be enforced unless discussions were held with the advocate community. Thus, the Bill of 1997 which was passed, and which had turned into an Act was not enforced immediately.
The next Law Minister, Shri Arun Jaitley, held discussions with various Bar Associations, the Law Commission, etc. A Bill titled the Code of Civil Procedure (Amendment) Bill, 2000 was moved in the Rajya Sabha. It was comprehensively considered by the Standing Committee. In this new Bill, the rigour introduced by the earlier Bill was reduced vis-à-vis Rule 14 of Order 7 of the Code. In the Code of Civil Procedure (Amendment) Act, 1999, the plaintiff was mandated to file documents along with the plaint and he was specifically restricted from filing the documents thereafter. In the Bill of 2000, he was mandated to file the documents along with the plaint and the rigour introduced earlier was reduced by providing that if he wished to produce documents later they could be produced upon taking the permission of the court.
Sub-rules (1), (2) and (4) of Rule 14 of Order 7 of the Code remain unchanged but sub-rule (3) of Rule 14 of Order 7 was changed in the new provision in the 2000 Bill vis-à-vis the provision contained in the Amendment Act of 1999. The new sub-rule (3) of Rule 14 of Order 7 of the Code read as under:
14. Production of document on which plaintiff sues or relies.—
(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.
There was not much discussion on this provision of the Bill in the Rajya Sabha where only one member, Shrimati S.G. Indira, exhibited her objection to the provision stating the provision to be too restrictive. The Bill was passed by the Rajya Sabha and subsequently by the Lok Sabha. The Act, thus, passed was titled the Code of Civil Procedure (Amendment) Act, 20029.
Both the Code of Civil Procedure (Amendment) Act, 1999 and 2002 were enforced on the same date. By these Acts, inter alia, Rule 15 of Order 7, Rule 18 of Order 7, Rule 2 of Order 13, Rule 17-A of Order 18 of the Code were deleted; Rule 14 of Order 7 and Rule 1 of Order 13 of the Code were substituted by new provisions; and Rule 1-A of Order 8 was inserted in the Code.
On going through the debates on the 2000 Bill which took place on 8-5-2002 in the Rajya Sabha and on 13-5-2002 in the Lok Sabha, taking into consideration the earlier position of the law on the point and the provisions contained in the Code of Civil Procedure (Amendment) Act, 1999 — it is crystal clear that the intention of Parliament in bringing such amendments was to curb the delay in disposal of cases.
Relevant provisions after the Amendment
After the Amendment Acts of 1999 and 2002 were enforced, the following relevant provisions read as under:
Rule 14 of Order 7. Production of document on which plaintiff sues or relies.—
(1) 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.
(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 witnesses, or, handed over to a witness merely to refresh his memory.
Rule 1-A of Order 8. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.—
(1) 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 counterclaim, 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.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in court by the defendant under this rule, but, is not so produced 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 documents—
(a) produced for the cross-examination of the plaintiff’s witnesses; or
(b) handed over to a witness merely to refresh his memory.
Rule 1 of Order 13. 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 plaint 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 sub-rule (1) shall apply to documents—
(a) produced for the cross-examination of the witnesses of the other party; or
(b) handed over to a witness merely to refresh his memory.
Rule 4 of Order 18. Recording of evidence.—
(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the court.
Rule 27 of Order 41. Production of additional evidence in appellate court.—
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if—
(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed; or
(b) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission.
The law relating to production of documents by the parties
The effect of the provisions, as they stand now, is that two categories of documents viz. the document on which the suit is based and the documents on which the plaintiff relies in support of his claim, have to be entered into a list which is to be filed with the plaint and at the same time the plaintiff has to produce these documents and a copy thereof to be filed along with the plaint. If the original of such documents are not filed with the plaint, they may be filed at or before the stage of the settlement of issues. The rigour applies only to the above two categories of documents. For any different category of documents, there is no such rigour.
The rigour of the above provisions does not even apply to documents produced for the cross-examination of the witnesses of the other side or handed over to a witness merely to refresh his memory. How this provision has been interpreted shall be seen shortly.
If the documents are not in the possession or power of the plaintiff, the plaintiff shall, as far as possible, state in whose possession or power they are.
If the documents required to be filed and entered into the list are not so filed or entered into the list to be annexed with the plaint, such documents shall not be received in evidence unless the leave of the court is obtained. What are the considerations to be kept in mind for courts to exercise the discretion to grant such leave shall be shortly discussed in detail.
When can a party produce additional documentary evidence at the stage of appeal shall also be discussed in the course of this article.
Firstly, we shall see how the courts are expected to judiciously exercise their discretion in granting or refusing leave to produce documents when the documents are not produced with the plaint or entered in the list to be annexed with the plaint.
When to exercise discretion in favour of granting leave
When the documents are relevant.— Only relevant documents can be taken on record under sub-rule (3) of Rule 14 of Order 7 of the Code.10 Irrelevant documents cannot be taken on record by accepting such an application. Admissibility is not to be seen at the stage of deciding the application; only the relevance of the document is to be seen. Admissibility to be considered at the time of evidence.11
Amount of delay should be considered.— Delay is a relevant consideration for deciding an application under Rule 14 of Order 7 of the Code.12 When the delay is not much, the application may be accepted subject to the fulfilment of the other relevant factors. In cases of huge delay, the effect which the documents sought to be produced can have on the plaintiff’s case and other relevant factors should be weighed simultaneously with the probable delay which may be caused because of relegation of the proceedings to an early stage upon acceptance of the documents sought to be produced.
Sufficient/reasonable cause for the delay to be shown.—Application cannot be accepted if reasons for the delay are not stated. Party to state the reasons because of which he could not produce the documents on time.13 Sufficient/reasonable cause for non-production of the documents on time to be made out.14 Application cannot be accepted if such cause is not shown.
Sufficient/reasonable cause for non-compliance with the statutory provisions should be shown.—The plaintiff must show in his application, for leave under sub-rule (3) of Rule 14 of Order 7 of the Code, the reasons for non-compliance with the statutory provisions of Rule 14 of Order 7 and Rule 1 of Order 13 of the Code. Any application bereft of such reasons should not be accepted. It has been held that the provision of Rule 14 of Order 7 of the Code is not a hollow formality.15
The above factors are not exhaustive but are material factors that should be borne in mind when an application under sub-rule (3) of Rule 14 of Order 7 is to be decided. Keeping in view the above factors, an application under sub-rule (3) of Rule 14 of Order 7 may be accepted. The discretion is to be exercised only in rare cases and not in a routine manner.16 The discretion has to be exercised sparingly and for some overpowering reason and not as a matter of routine.17
When to exercise discretion against granting leave
When the documents sought to be produced are not relevant, when no plausible explanation is put forth for non-production of documents on time or at the earliest possible stage of the case, or where no reason is shown for the non-compliance of the statutory provisions of Rule 14 of Order 7 and Rule 1 of Order 13 of the Code — leave ought to be refused.
It has been held in Ashok Choudhary case18 that the provision of Rule 14 of Order 7 of the Code is not a hollow formality. It has also been held that sub-rule (3)19 It has also been held that no leave should be granted in a mechanical manner and that it is incorrect to allow applications under sub-rule (3) of Rule 14 of Order 7 of the Code as a matter of course with the imposition of some costs for the delay.
Authors’ views
Courts are to effectuate the intention of Parliament. The intention of Parliament in bringing amendments to the relevant provisions of the Code is crystal clear: to curb delays in the disposal of cases. Parliament has not put absolute restrictions on the production of documents by parties after the filing of the plaint or the passing of the stage of the settlement of issues. Discretion has been given to courts. The discretion has to be exercised keeping in mind the legislative intent (behind the Amendment Acts of 1999 and 2002) of curbing delays in the disposal of cases.
In the view of the authors, when the documents are relevant and reasonable cause is shown for the non-compliance of the above statutory provisions, the ultimate decisive factors for the exercise of discretion should be the amount of delay, reasonableness/sufficiency of the cause shown for the delay in producing the documents, the effect which the documents can have on the plaintiff’s case and the probable delay which will be caused because of the proceedings being relegated back to a past stage if the application for production of documents after the filing of plaint is allowed.
In spite of the sufficiency or reasonableness of the delay having been shown, if the documents although relevant would not materially affect the decision in the suit vis-à-vis the plaintiff, documents should not be taken on record in cases of huge delay in cases where the proceedings will be relegated back to an initial stage in a suit which is at an advance stage. Otherwise, discretion can be exercised, upon imposition of proper costs, in favour of the party applying for taking documents belatedly on record. This view is in tune with the intent of Parliament.
Documents although relevant ought not to be taken on record merely because of their probable effect which they may have on the plaintiff’s case if no cause for their non-timely production is shown, no cause for the delay caused is shown and reasonableness/sufficiency of the delay is not explained.
Such a view may be criticised on the ground that procedural law is understood as the handmaid of justice and that it is considered that when substantial justice and procedural/technical considerations are pitted against each other the latter should give way to the former. But this is not a rule without exceptions.
Can a suit for which the period of limitation is 3 years be admitted after the expiry of the period of limitation? Can such a time-barred suit be admitted by condoning the delay when in effect condonation of delay is not permissible for suits — on the ground that the law of limitation is a procedural law which is a handmaid of justice and that in the name of doing substantial justice, delay should be condoned. Section 5 of the Limitation Act, 196320 does not permit condonation of delay in respect of suits. Such an interpretation of procedural law in the name of doing substantial justice is unthinkable and has never been approved of.
At the end of the day, it is the intention of Parliament that has to be given effect to by the courts unless the parliamentary enactment or some provision thereof is declared unconstitutional by the courts.
The provisions amended and inserted by the 1999 and 2002 Amendment Acts have been held to be intra vires the Constitution.
Proviso to Rule 17 of Order 6 of the Code21 which, to some extent, curtails absolute discretion to allow amendment at any stage, may appear harsh and may at times adversely affect the administration of substantial justice, has been similarly held to be intra vires the Constitution.
Justice delayed is justice denied and the right to speedy justice is as much a reality as justice hurried is justice buried.
The view of A.N. Sen, J. who partly dissented in Bhagwan Swaroop v. Mool Chand22 is worth mentioning, here:
12. It is no doubt true that a code of procedure “is designed to facilitate justice and further its ends and it is not a penal enactment for punishment and penalty and not a thing designed to trip people up”. Procedural laws are no doubt devised and enacted for the purposes of advancing justice. Procedural laws, however, are also laws and are enacted to be obeyed and implemented. The laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties. On the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers, and justice will be in a state of confusion and quandary. Difficulties arise when parties are at default in complying with the laws of procedure. As procedure is aptly described to be the hand-maid of justice, the court may in appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger interest of justice. It is, however, always to be borne in mind that procedural laws are as valid as any other law and are enacted to be observed and have not been enacted merely to be brushed aside by the court. Justice means justice to the parties in any particular case and justice according to law. If procedural laws are properly observed, as they should be observed, no problem arises for the court for considering whether any lapse in the observance of the procedural law needs to be excused or overlooked. As I have already observed depending on the facts and circumstances of a particular case in the larger interests of administration of justice the court may and the court in fact does, excuse or overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the court passes proper orders which will serve the interests of justice best.
13. Excuse of lapses in compliance with the laws of procedure, as a matter of course, with the avowed object of doing substantial justice to the parties may in many cases lead to miscarriage of justice.
Interpretation of sub-rule (4) of Rule 14 of Order 7 of the Code
Secondly, we shall see how sub-rule (4) of Rule 14 of Order 7 of the Code has been interpreted. The provision of Rule 14 of Order 7 of the Code makes it clear that the rigour of the provision does not apply to documents produced for the cross-examination of the witnesses of the other side or handed over to a witness merely to refresh his memory. This sub-rule was interpreted by the Delhi High Court in Subash Chander v. Bhagwan Yadav23 as under:
8. Order 7 Rule 14(4), Order 8 Rule 1-A(4), as well as Order 13 Rule 1(3) provide that the provisions requiring parties to file documents along with their pleadings and/or before the settlement of issues do not apply to documents produced for the cross-examination of the witnesses of the other party. To the same effect, Section 145 of the Evidence Act24 also permits documents to be put to the witnesses, though it does not provide whether such documents should be already on the court record or can be produced/shown for the first time. However, in view of the unambiguous provisions of the CPC, it cannot be held that the document cannot be produced/shown for the first time during cross- examination. If the witness to whom the said document is put, identifies his handwriting/signature or any writing/signatures of any other person on the said document or otherwise admits the said documents, the same poses no problem, because then the document stands admitted into evidence. However, the question arises as to what is the course to be followed if the witness denies the said document. Is the document to be kept on the court file or to be returned to the party producing the same?
9. This question in my view is also not difficult to answer. It cannot possibly be said that the document should be returned to the party. If the document is so returned it will not be possible for the court to at a subsequent stage, consider as to what was the document and what was denied by the witness. In a given case, it is possible that the answer of the witness on being confronted with the document may not be unambiguous. It may still be open to the court to consider whether on the basis of the said answer of the witness, the document stands admitted or proved or not and/or what is the effect to be given to the said answer. Thus, the document cannot be returned and has to be necessarily placed on the court file.
10. The next question which arises is that if the document is so placed on the court file, whether it becomes/is to be treated as the document of the party producing the same and is that party entitled to prove the said document notwithstanding having not filed the same earlier, as required by law, or the use of the said document is to be confined only to confront the witness to whom it was put and it cannot be permitted to be proved by that party in its own evidence.
11. The legislative intent behind Order 7 Rule 14(4) and Order 8 Rule 1-A(4) and Order 13 Rule 1(3) appears to be to permit an element of surprise, which is very important in the cross-examination of witnesses. A litigant may well be of the opinion that if the document on the basis whereof he seeks to demolish the case of the adversary is filed on the court record along with pleadings or before framing of issues, with resultant knowledge to the adversary, the adversary may come prepared with his replies thereto. On the contrary, if permitted to show/produce the document owing to element of surprise, the adversary or witness may blurt out the truth. Once it is held that a litigant is entitled to such right, in my view it would be too harsh to make the same subject to the condition that the litigant would thereafter be deprived of the right to prove the said documents himself. Thus, if the witness to whom the document is put in cross-examination fails to admit the document, the party so putting the document in its own evidence would be entitled to prove the same. However, the same should not be understood as laying down that such party for the said reason and to prove the said document would be entitled to lead evidence which otherwise it is not entitled to as per scheme of CPC and evidence law. For instance, if the document is shown by the defendant to the plaintiff’s witness and the plaintiff’s witness denies the same, the defendant can prove the document in his own evidence. Conversely, if the plaintiff puts the document to the defendant’s witness and the defendant’s witness denies the same, the plaintiff if entitled to lead rebuttal evidence would in his rebuttal evidence be entitled to prove the same. However, if the plaintiff has no right of rebuttal evidence in a particular case, the plaintiff would not be entitled to another chance to prove the document. In such a case, the plaintiff has to make a choice of either relying upon the surprise element in showing the document or to file the document along with its pleadings and/or before the settlement of issues and to prove the same. Similarly, if the defendant chooses to confront the document to the plaintiff’s witness in rebuttal, merely because the witness denies the document would not entitle the defendant to a chance to prove the document subsequently.
12. I may however put a line of caution over here. It is often found that a party which has otherwise failed to file documents at the appropriate stage, attempts to smuggle in the documents in the evidence of the witness of the adversary by putting the documents to the witness whether relevant to that witness or not. The court should be cautious in this regard. Only those documents with which the witness is concerned and/or expected to know or answer ought to be permitted to be put to the witness in the cross-examination. If other documents with which the witness is not concerned are confronted only in an attempt to have the same filed and to thereafter prove the same, the court would be justified in clarifying that the document is taken on record only for the purpose of cross-examination and the producing party would not be entitled to otherwise prove the same, having not filed it at the appropriate stage.
Production of documents at the appellate stage
Thirdly, we shall see how far the parties are entitled to produce documents at the stage of appeal.
Rule 27 of Order 41 of the Code makes it clear that the parties are not, as of right, entitled to produce documentary evidence at the appellate stage. But additional evidence may be admitted if the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. The appellate court, for any other substantial cause, may also allow additional documents to be produced.
The provision of Rule 27 of Order 41 of the Code, insofar as it is concerned with production of additional documents at the appellate stage, will, now, have to be read and interpreted keeping in view the legislative intent behind the Amendment Acts of 1999 and 2002, by which amendments have been made in corresponding relevant provisions of Order 7, Order 8 and Order 13 of the Code which means that they will have to be interpreted in a very strict sense. Now, due to the amended provisions, additional documents cannot be taken on record liberally at the stage of the suit. The rigour will have to apply with extra force at the appellate stage to effectuate the parliamentary intent.
Miscellaneous matters
There is no need to produce as many sets of documents as there are defendants. Only the original and one set of copy to be produced at the time of filing of the plaint to comply with the provision of Rule 14 of Order 7 of the Code.25
The terms used in sub-rule (3) of Rule 14 of Order 7 of the Code are hearing of the suit. Hearing of a suit begins after the pleadings are filed and even before the stage of framing of issues in the case. At the first hearing, as per Order 1026 of the Code, admissions and denials are elicited and the parties are examined whereafter issues are framed. Hearing continues till final arguments are heard.
For understanding the scope of the proviso to sub-rule (1) of Rule 4 of Order 18 of the Code, reference may be made to the judgment in Nanjunda Setty v. Tallam Subbaraya Setty & Sons27 in which it has been held as follows:
16. The amended provisions either at Order 7 Rule 14 or at Order 8 Rule 1-A, only speaks of documents on the basis on which the plaintiff has sued or the defendant has based his defence and both of them rely upon which are in their possession or power cannot be received in evidence at the hearing of the suit without the leave of the court. Therefore, the documents which came into the possession of the parties after the pleadings are filed in the court on which they rely on in support of their claim or defence could be produced along with the affidavit filed by way of examination-in-chief. Similarly, documents which are not in the nature of suit documents or documents on which the defence is not based could also be produced along with an affidavit. The said affidavit can only contain oral evidence. It cannot contain documentary evidence. It is in that context proviso is added making this position clear. Proviso states, provided that where documents are filed and parties rely upon the documents, proof and admissibility of such documents which are filed along with the affidavit shall be subject to orders of the court. Therefore, it is clear that the aforesaid proviso provides for filing of documents along with affidavit which is certainly a stage subsequent to filing of pleadings. Said proviso does not provide for any leave of the court being obtained for production of such documents or any cause being shown for delay in production of documents and not producing them along with pleadings.
The authors do not academically agree with many of the other conclusions arrived in the case because of the reasons stated in this article.
The provision for filing of documents by a defendant in a suit is Rule 1-A of Order 8 which corresponds to Rule 14 of Order 7 of the Code. The discussion in this article for production of documents by the plaintiff shall be understood mutatis mutandis for production of documents by the defendants in the light of Rule 1-A of Order 8 of the Code.
Legislative defects
The Supreme Court has held that the word plaintiff’s witnesses in sub-rule (4) of Rule 14 of Order 7 of the Code has been mentioned as a result of mistake of the legislature and ought to have been defendant’s witnesses. It was held that till a legislative change is made, the words plaintiff’s witnesses are to be read as defendant’s witnesses.28 Till date, Parliament has not rectified the above mistake.
At the stage of the suit, strict provisions have been made for production of documents after the filing of pleadings vide the Amendment Acts of 1999 and 2002, but consequential amendments in Rule 27 of Order 41 of the Code have not been made. There is a provision in Rule 27 of Order 41 of the Code that the appellate court may for any substantial cause allow additional documents to be produced. This rule, unless amended, is bound to create incongruity in the strict provisions for production of documents at the stage of the suit and the corresponding provisions at the appellate stage.
Suggested amendments
Firstly, the provision in Rule 27 of Order 41 of the Code which empowers the appellate courts to allow additional documents to be produced for any substantial cause need to be suitably amended to meet the strictness introduced in the provisions of the Code for production of documents by parties at the stage of the suit. Whereas on the one hand, rules have been made strict for taking those documents on record which were not filed at the appropriate stage during the trial; on the other hand, the existence of the above provision in Rule 27 of Order 41 of the Code would mean that although to meet the strict procedural law, trial courts cannot in appropriate cases, allow documents to be produced at the stage of the trial due to non-compliance of Rule 14 of Order 7 of the Code, but the appellate courts can do so in the name of doing substantial justice. This is the apparent conflict in the provisions for production of documents at the stage of the trial and at the appellate stage which need legislative intervention in the form of a suitable amendment of Rule 27 of Order 41 of the Code.
Secondly, when applications are allowed or disallowed under sub-rule (4) of Rule 14 of Order 7 of the Code, the costs to be imposed should be made realisable by making provisions akin to Section 35-B of the Code29 applicable for the recovery of such costs. This would deter filing of frivolous applications and would also provide immediate succour to the opposite side for the inconvenience caused to him.
Thirdly, the defect pointed out by the Supreme Court in Salem Bar case30 should be legislatively remedied by amending the word plaintiff’s witnesses with defendant’s witnesses in sub-rule (4) of Rule 14 of Order 7 of the Code.
Conclusion
Expeditious disposal of cases is the intent of Parliament and to curb the delay caused in expeditious disposal of cases, parties to a suit are required to file their documentary evidence along with their pleading. Documents cannot be taken on record as a matter of routine by mere imposition of costs for the delayed production of documents. Relevance of documents, tendering of sufficient cause for non-timely production and for the non-compliance of the statutory provisions contained in Rule 14 of Order 7 and Rule 1 of Order 13 of the Code, the length of delay, sufficiency/reasonableness of the reasons assigned for the delay, the effect which the documents sought to be produced can have on the plaintiff’s case, and the probable delay which may be caused by relegating the proceedings to an earlier stage by taking the documents on record belatedly are the major factors to be considered in taking or not taking documents on record at a belated stage. Of which, delay may in some cases become the ultimate decisive factor. Amendments made to the Code in 1999 and 2002 have been held to be intra vires the Constitution and have received the imprimatur of the Supreme Court.
Former Judge of the US Supreme Court, Benjamin Cardozo, has said, “The Judge, even when free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles.”
The argument of filing documents at any stage without justifying the non-compliance of the mandatory provisions of Rule 14 of Order 7 and Rule 1 of Order 13 of the Code is no more tenable on the mere ground of doing substantial justice. The cause for doing substantial justice may be a ground to take on record documents filed belatedly when the length of delay is not huge and other relevant factors are satisfied. In cases where the length of delay is excessive and unexplained, doing so would mean ignoring the legislative intent behind making amendments to the corresponding provisions in the Code.
Delay in the disposal of cases is one of the major reasons because of which foreign companies do not come for business in the country. It is also one of the major reasons because of which the institution of suits has considerably reduced in the courts in the past years. This points to the reduction of faith of the common men in the system of justice dispensation because of the delay in getting justice from the courts. In the name of doing substantial justice, if a blind eye is turned to excessive and unexplained delay, the general image which the common men have in the institution of justice dispensation will tarnish; and, consequently, people may avoid coming to courts because of the delay caused in the disposal of civil cases.
†Civil Judge Senior Division, Jabalpur, M.P., dagliyashrikrishna@gmail.com
††Civil Judge Senior Division, Jabalpur, M.P.
1. Code of Civil Procedure, 1908.
2. Code of Civil Procedure, 1908, Or. 7 R. 14.
3. Code of Civil Procedure, 1908, Or. 7 R. 17.
4. Code of Civil Procedure, 1908, Or. 8 R. 1-A.
5. Code of Civil Procedure, 1908, Or. 13 R. 1.
6. Code of Civil Procedure, 1908, Or. 18 R. 4 sub-r. (1).
7. Code of Civil Procedure, 1908, Or. 41 R. 27.
8. Civil Procedure Code (Amendment) Act, 1999.
9. Civil Procedure Code (Amendment) Act, 2002.
10. Kanta Devi Girdhani v. Union of India, 2011 SCC OnLine MP 1154; Nanjunda Setty v. Tallam Subbaraya Setty & Sons, 2003 SCC OnLine Kar 424
11. Punit Agrawal v. Murarilal, 2020 SCC OnLine MP 3013.
12. Kanhaiyalal v. Priyambada Mishra, 2012 SCC OnLine MP 4729.
13. Prafullanath v. Sohanlal, 2012 SCC OnLine MP 1032.
14. Hyatunisa v. Vikas Bhatia, 2012 SCC OnLine MP 10029; Jagdish Singh v. Chote, 2013 SCC OnLine MP 8452; G. Sanjeeva Reddy v. Indukuru Lakshmamma, 2006 SCC OnLine AP 161; Asia Pacific Breweries v. Superior Industries, 2009 SCC OnLine Del 503; Polyflor Ltd. v. A.N. Goenka, 2016 SCC OnLine Del 2333.
15. Ashok Choudhary v. Gwalior Diary Ltd, 2017 SCC OnLine MP 1955.
16. Bada Bodaiah v. Bada Linga Swamy, 2002 SCC OnLine AP 992.
17. Haldiram (India) (P) Ltd. v. Haldiram Bhujiawala, 2009 SCC OnLine Del 733.
19. Bhaiyalal v. Ramswaroop, 2013 SCC OnLine MP 3821.
20. Limitation Act, 1963, S. 5.
21. Civil Procedure Code, 1908, Or. 6 R. 17.
22. (1983) 2 SCC 132, 138-139.
23. Subhash Chander v. Bhagwan Yadav, 2009 SCC OnLine Del 3818.
24. Evidence Act, 1872, S. 145.
25. Sahodrabai Rai v. Ram Singh Aharwar, AIR 1968 SC 1079.
26. Civil Procedure Code, 1908, Or. 10.
28. Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344.
29. Civil Procedure Code, 1908, S. 35-B.
30. Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344.
