2015XAD(Delhi)70, 221(2015)DLT606
IN THE HIGH COURT OF DELHI
Decided On: 03.07.2015
Appellants: Capital
Meters Limited and Ors.
Vs.
Respondent: S. Johnflex Industries and Ors.
Judges/Coram:
Counsels:
For Appellant/Petitioner/Plaintiff:
Subject:
· Code
of Civil Procedure, 1908 (CPC) - Order XIII Rule 10
· Lakshmi
and Anr. vs. Chinnammal @ Rayyammal and Ors. MANU/SC/0543/2009
JUDGMENT
CM No. 11303/2015 (exemption)
Exemption is allowed subject to all just exceptions.
FAO (OS) 324/2015 & CM No. 11302/2015 (stay)
1. This appeal is preferred
against the order dated 25.5.2015 passed by a learned Single Judge of this
Court, whereby IA No. 1072/2015 filed by the appellant/defendant seeking to
bring certain documents was rejected. The documents which were sought to be
brought on record are as under:
"(i) The photographs
of the products under the trade mark Capital carrying the manufacturing year
1987.
(ii) The ITCC Certificate
for the financial year 1987-88.
(iii) The NSIC certificate
dated 22.5.1990 against application of defendant No. 1 dated 8.3.1990.
(iv) KSEB Registration
certificate dated 6.12.1988.
(v) The letter dated
27.3.1987 issued by the Electricity department of UP.
(vi) No Objection
Certificate from UP Pollution Board dated 26.4.1986.
(vii) UP PWD approval dated
14.5.1987.
(viii) UP SEB approval
dated 25.5.1987.
(ix) The ISI Licence valid
since the year 1987.
(x) Surrender letter of
defendant No. 1 of BIS Licence."
The learned Single Judge
noted that these documents were always available with the defendants/appellants
at all times. We may also point out that the said suit was filed in the year
2004. Initially, a written statement was filed by the defendants which was
subsequently amended in the year 2008. Issues were framed in the year 2009 and
the plaintiffs, evidence was concluded in the year 2012. Three years later, in
the current year, i.e., 2015, the said application being IA 1072/2015 was filed
to bring on record the documents which were, at all times, available with the
defendants. A flimsy explanation had been attempted to be given for the
non-production of the said documents at an earlier stage. The same can be
discerned from paragraph 4 of the application which reads as under:
"4. That
the defendant No. 1 is filing the afore mentioned additional documents by way
of list of document dated 15.5.2015. The same may be referred to. All the
documents are being filed in photocopies. The plaintiff is desirous of producing
the same at the trial stage as the same are very important and necessary for
the defendant No. 1 to produce the same in relation to various proceedings on
daily basis. The said document could not have been filed before framing of
issues. The afore mentioned documents are very old documents are were lying
under various files in godown. The custodian of the aforementioned documents
changed from time-to-time in the office of the defendant No. 1. After much
effort, the defendant No. 1 was able to obtain the same. The same could not
have been filed before framing of issues because of the reasons mentioned
hereinabove. The reasons for not filing the aforementioned document is beyond
the power and control of the plaintiff."
2. The learned Single Judge
has correctly noted that, at this stage, the defendants (appellants herein)
cannot be permitted to rely on the same and that the application does not
indicate diligence and seriousness of the defendants. In our view, this is only
an attempt to delay the proceedings in the suit.
3. The learned Counsel for
the appellants placed before us a judgment of the Supreme Court in Lakshmi
& Anr. v. Chinnammal Rayyammal & Ors., MANU/SC/0543/2009 : III (2009)
SLT 312 : 11 (2009) CLT 191 (SC) : (2009) 13 SCC 25, in an attempt to support
his argument that this Court ought to take the said documents on record. First
of all, the said decision of the Supreme Court in Lakshmi (supra) was one under
Order 13 Rule 10, CPC which is entirely different from the situation which
obtains in the present case. Under that provision, the Court may send for the
papers from its own record or from other Courts. Here the documents were
available with the appellants at all times and admittedly so. The explanation
sought to be given by the appellants, as noted above, is clearly untenable. It
is in the context of Order 13 Rule 10 that the Supreme Court in Lakshmi (supra)
made the observation in paragraph 12 which is reproduced hereinbelow:
"12. If bringing on
record a document is essential for proving the case by a party, ordinarily the
same should not be refused; the Court's duty being to find out the truth.
The procedural mechanics
necessary to arrive at a just decision must be encouraged. We are not unmindful
of the fact that the Court in the said process would not encourage any fishing
inquiry. It would also not assist a party in procuring a document which he
should have himself filed."
Even in the said
observation of the Supreme Court, the word 'ordinarily' has been used. The
present case does not fall in that category. Here, no plausible explanation has
been given for not producing the documents despite the suit having been filed
in 2004 and even the written statement having been amended in 2008,
particularly, when the documents were all along said to be available with the
appellants.
4. In the factual matrix of
the present case, we do not find any error in the impugned order whereby the
learned Single Judge has refused the appellant/defendant's request for taking
on record the said documents. The appeal has no merit. The same is dismissed.
