IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.4261 of 2015 ------ Triveni Engineering & Industries Limited, having its Registered Office at Deoband, P.O.-Deoband, P.S.-Deoband, District- Saharanpur, U.P. and corporate office at Triveni Engineering & Industries Limited, 8th Floor, Express Trade Towers, 15-16, Sector 16A, Noida-201 301, U.P. through its Deputy General Manager, Legal ... ... … Petitioner Versus Bharat Coking Coal Limited, through its Chairman cum Managing Director, Koila Bhawan, Koila Nagar, P.O. & P.S.-Dhanbad, District-Dhanbad ... ... ... Respondent ------ CORAM: HON'BLE MR. JUSTICE RAVI NATH VERMA For the Petitioner : Mr. Raj Nandan Sahay, Sr. Advocate Mr. Yashvardhan, Advocate Mr. Allan Andrew, Advocate For the Respondent : Mr. Anoop Kumar Mehta, Advocate ------ C.A.V. ON:
11. 08.2016 PRONOUNCED ON:- 14.09.2016 Invoking the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India, the plaintiff-petitioner has prayed to set aside the order dated 14.07.2015 passed by learned Additional Civil Judge (Junior Division), Dhanbad in Title Suit No.10 of 1996 whereby the court below rejected the petition filed by the plaintiff on 21.03.2014 to direct the Judge-in-Charge-cum- Registrar of Civil Court to trace out the documents filed by the present plaintiff in Title Suit No.10 of 1996 or in alternative direct the party to reconstruct the record to enable the petitioner to use those documents as evidence in the subsequent Title Suit No.34 of 1999 pending in the court of Civil Judge (Senior Division), Dhanbad.
2. Bereft of unnecessary details, the facts, which is relevant for the proper adjudication of the issue involved in this writ application, in short, is that the petitioner which a public limited company, had preferred one Title Suit No.10 of 1996 for declaration that defendant no.1 is not entitled to invoke the bank guarantees for 2 W.P.(C) No.4261 of 2015 Rs.9,20,000/- and 35,58,300/- issued by defendant nos.2 and 3 respectively and also for restraining the defendant no.1, its employees or agents from invoking the three bank guarantees issued by defendant nos.2 and 3 and further restraining defendant nos.2 and 3 from making any payment to defendant no.1 under the bank guarantees. During pendency of the said suit, an order of temporary injunction was granted but subsequently the said order was revoked and the present respondent-BCCL encashed the bank guarantees which necessitated the filing of another Title Suit No.34 of 1999 for recovery of amount of Rs.1,88,69,894.93/-. After appearance of the respondent in the subsequent suit, they filed the written statement and at the time of leading evidence, some documents were required by the plaintiff-petitioner which were filed in the earlier title suit no.10 of 1996. The petitioner requested the Registry of the court in writing to make available the certified copies of the documents which were filed in the earlier suit. A list of documents was also enclosed with the said request letter but the Registry informed the petitioner in writing that those documents in the list are not traceable. Thereafter, the petitioner on 24.03.2014 filed a petition in the court concerned to direct the Registry to trace the documents or in alternative permit the parties to reconstruct the file so that the plaintiff be in a position to file those documents in court and lead secondary evidence in the absence of the primary evidence.
3. The defendant-respondents filed a rejoinder to the said petition alleging that the said petition is misconceived and not in accordance with law and in fact the plaintiff had filed xerox copy of the documents in the earlier suit which are not admissible in evidence and none of those documents were original and that the courts and its officials cannot be blamed for misplacing the documents. 3 W.P.(C) No.4261 of 2015 The said application was dismissed by the court below by order dated 11.05.2015 which was challenged by the present petitioner in W.P.(C) No.2286 of 2015 and after hearing both the parties, a Bench of this Court vide order dated 22.07.2015 set aside the order of the court below dated 11.05.2015 and remitted the matter to the trial judge for deciding the application dated 24..03.2014 afresh.
4. The court below after hearing both the parties again dismissed the petition filed by the petitioner by the present impugned order dated 14.07.2015 holding that the alleged documents were copies of some official letters and C.Cs. of some orders and the same can be obtained from the concerned offices or authorities. The court further held that the provision of law do not provide for reconstruction of documents of any parties but it is for construction of evidences already taken on record. Aggrieved by the order impugned, the present writ petition has been filed.
5. It is relevant to mention here that from the record available with this writ, it appears that when the plaint in the earlier suit was filed, the plaintiff in view of the mandatory provision as incorporated in Order XIII Rule 1 of the Code enclosed several documents in two volumes. The concerned court in its order dated 31.01.1996 has recorded that documents in two volumes were filed alongwith the plaint. The relevant part of the said order is quoted hereinbelow:- Plaintiff files hazri alongwith registration receipt. Notice and summon issued upon defendant No.1 received after proper service but he did not take any step today. S/R of notices and summons issued upon defendant No.2 and 3 not received. Case called out and taken up for hearing on injunction petition. No body turned up on behalf of defendant No.1. Heard arguments in part on behalf of the plaintiff. Put up on 1.2.96 for further hearing. 4 W.P.(C) No.4261 of 2015 Documents in two vol. have been filed on behalf of the plaintiff. Let it be kept with the record. The court below has also discussed in the order impugned that the plaintiff had filed some documents with list alongwith the plaint but those documents are traceless since long.
6. Learned counsel appearing for the petitioner assailing the order impugned as bad in law, seriously contended that when the court has come to the finding that documents in two volumes were filed alongwith plaint, it was the duty of the court to direct the Registry to trace out those documents even if those documents were not admitted in evidence and not marked as exhibit. It was also submitted that those documents are necessary for the settlement of the issues by the court below and sub rule 2 of Rule 1 of Order XIII imposes a duty on the court to receive documents produced by the parties to the suit and that there is absolutely no evidence or any endorsement of handing over those documents to the plaintiffs by the officials or staff of the court concerned and in absence of that the onus lies upon the court to bring those documents on record either by way of reconstruction or by giving direction to the Registry to trace out documents.
7. Contrary to the aforesaid submissions of Mr. Anoop Kumar Mehta appearing for respondent-BCCL, seriously contended that the court below after appreciating the cases in right perspective has rejected the prayer of the plaintiff-petitioner and there is no question of reconstruction of record as the documents were never admitted in evidence and even certified copy of those documents cannot be issued.
8. Undoubtedly, alongwith the plaint, documents in two volumes were filed by the plaintiff-petitioner and the court directed the office to keep those documents with record. On perusal of order impugned, it appears that no such direction was given by the court 5 W.P.(C) No.4261 of 2015 concerned either to the Registry of the court or to the staff of the said court where the title suit no.10 of 1996 was pending to trace out those documents and the court below has relied on the earlier reply of the Registry that the documents in the list are not traceable. A list of documents which was filed in the court below in two volumes is enclosed with this writ application as Annexure-6 and it appears that besides some official letters, agreement executed between the defendant and plaintiff, the advance bank guarantees, the extension letter and several other letters, which were important, were also filed. It is nowhere came in the order impugned that in view of the Order XIII Rule 3 the court concerned had at any stage of suit rejected any documents which was considered to be not relevant or otherwise admissible and returned the documents to plaintiff.
9. In view of the discussions made above, in my opinion, the court below by order impugned has not properly appreciated and adjudicated the issue and rejected the prayer without making any effort to trace those documents.
10. The impugned order dated 14.07.2015 passed by learned Additional Civil Judge (Junior Division), Dhanbad in Title Suit No.10 of 1996 is, hereby, set aside and the matter is remitted to the court concerned to reconsider the application filed by the plaintiff and direct the Registry and concerned officials to trace those documents and if the court feels any difficulty may request the Principal District Judge of the concerned district to do the needful.
11. With this observation, this writ application is, hereby, allowed. (R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 14th September, 2016 Anit/N.A.F.R.