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Chidambaram Chettiar Vs. Parvathi Achi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad347; 87Ind.Cas.351
AppellantChidambaram Chettiar
RespondentParvathi Achi
Cases ReferredTaran Mandal v. Ram Chandra Mandal
Excerpt:
.....there may be eases where good cause is shown for admitting an unregistered, and there may be cases where no good cause is shown for admitting a registered, document. 8. i find that first hearing in order 13, rule 1, means framing of issues and documents can only be ,produced after that date on good cause being shown under order 13, rule 2, for rules 63 and 64 have not in my experience led to any confusion......a bench of the calcutta high court has held the first hearing to mean the day on which the issues are framed. talewar singh v. bhagwan dass [1908] 8 c.l.j. 147, and a patna high court bench has held the same, taibunnissa begum v. jagdip pandey a.i.r. 1924 patna 517 and i should infer that rules 63 and 74, civil rules of practice, were framed on the same assumption. a single judge in calcutta has held [taran mandal v. ram chandra mandal [1919] 50 i.c. 296 that the first hearing means when the case is really gone into and the case then in question (on previous occasions) had not been gone into at all. 'gone into ' is rather a vague phrase which may refer to the framing of issues or to the examination of witnesses, and this case does not shake the authority of those already.....
Judgment:

Jackson, J.

1. Petitioner is defendant in O.S. No. 29 of 1923 on the file of the Sub-Court, Mayavaram. Plaintiff is suing in forma pauperis for maintenance due to her as a Hindu widow after the lapse of 20 years, for her husband died in 1902. The petitioner contended in his written statement that she had gone to the home of her own people at the time of her husband's death, and they came to an oral arrangement that she should keep her jewels in lieu of maintenance. Issues were framed on 30th October 1923 and the suit was posted for hearing to 11th December 1923, and adjourned to 29th January 1924. In the interval, on 9th January 1924, the petitioner applied to file certain documents which he swore he had been unable to find earlier. The Subordinate Judge observing that the reason could not be accepted rejected the application. This Court ordered a rehearing, as the Subordinate Judge had not apparently directed his mind to the truth of the statement. Accordingly the application has been re-heard, and again rejected, and petitioner once again comes up in revision.

2. The learned Subordinate Judge has stated as the points for determination:

Whether the reason given by the petitioner for his failure to produce the documents on the date of first hearing is true: and

3. Whether it is sufficient within the meaning of Order 13, Rule 2, Civil Procedure Code.

4. He finds that the reason is untrue, and that concludes the matter. No one supposes that a deliberate falsehood is a, good cause under Order 13, Rule 2, and the question whether supposing the story had been true, it would be acceptable as good cause becomes merely academic.

5. But of course the question of fact is only concluded as regards this revisional case ; it may come up again on appeal, and the counter-petitioner must bear in mind that by refusing to allow these documents, to go in at this stage, she may be jeopardizing her whole suit, and may find herself, after she has obtained a decree, referred back for a fresh trial. The admission of these documents is not disputed because they are possible forgeries, or because they establish a new case for the defendant, but because they are entirely irrelevant to the defence. If so it would seem simpler and would certainly have been quicker1 to have allowed them to go in for what they are worth. But if, after all, they are relevant to the defence it will certainly be argued that they were wrongly rejected, and what reasons for the objection have been adduced The learned Subordinate Judge propounds the question whether the statement that a party was searching for documents and was unable to find them earlier is credible and finds it to be incredible. Apart from the possibility of forgery which is not now in question, only two things are likely to have happened ; either the party found the documents before the issues were framed, and owing to some negligence failed to produce them or he found them after the issues were framed. Neither version seems incredible and ordinarily one story would serve as well as the other for, as this Court has already pointed out in remanding the previous petition no one was prejudiced by the delay, and it is the sort of negligence which in the circumstances is usually condoned. Therefore there seems to be small room for assuming either incredibility or mendacity, and the reason which the learned Subordinate Judge gives for making this assumption is curious.. He says that parties who have failed to produce documents at the first day of hearing have often pleaded before him that they were searching for them and could not find them. That might ordinarily be supposed to point to credibility and truth. 'It is usually then a Judge hears a thing for the first time in his experience, that he is inclined to be incredulous. No doubt the learned Subordinate Judge regards this case as belonging to the category of those where a person charged with some fault, resorts to a familiar and discredited excuse as for instance the alibi in a criminal trial, But here there is no charge and no substantial proof of another version of the facts. It is not as though it were proved that the petitioner for his own purposes deliberately kept back these papers till January. So he has nothing to excuse ; only something to explain : and if the explanation is familiar it would only seem to point to the fact that several Indians bundle up and stow away their papers in an unmethodical manner and find difficulty in laying their hands on the right paper by the right time. However, I am not prepared to find that the Subordinate Judge has committed any material irregularity in approaching the facts of this case in his own way, and I merely comment on his finding in order to put the counter-petitioner upon her guard. Neither she nor anyone else wants time/to be wasted by a re-trial, but of course it rests entirely with her and her advisers. It would be open to her, if so advised to arrange to put the documents in herself subject to proof.

6. The judgment concludes with an inquiry based on various authorities, whether Order 13, Rule 2, can apply to documents which are neither public nor registered and the learned Subordinate Judge finds that it cannot so apply. No doubt in several cases having regard to particular facts, it has been found advisable not to admit unregistered private documents at a late stage, but this circumstance cannot be taken as creating an absolute restriction upon the Judge's discretion under O, 13, R, 2, If the statute allows a discretion, not one jot or tittle can be taken away or added to the plain and express provisions of the Legislatures by any decision of the Court: An Attorney, In re [1914] 41 Cal. 446. There may be eases where good cause is shown for admitting an unregistered, and there may be cases where no good cause is shown for admitting a registered, document. The Court acting under Order 13, Rule 2 has full discretion in every case.

7. Finally Mr. Jayarama Aiyar has pleaded that in law the documents were produced by the due date, and the provisions of Order 13, Rule 2, are not attracted. Order 13, Rule 1 enjoins production at the first hearing of the suit, and it is argued, the defendant then waits for the Court acting under Rule 64, Civil Rules of Practice either to call for the production of the documents or to direct him to file a list of documents to be produced at a later date. By January 1924 no such list had been ordered and, therefore, the petitioner did not file his documents too late. This plea might be arguable if it were the petitioner's case that he did produce his documents at the first hearing and, misled by Rule 64. did not file them, as he was awaiting the Court's action. But it was never suggested that he produced the documents before January 1924, which was after issues had been framed, and after the case had been posted for trial in December 1923, and adjourned. Petitioner is then driven to his last position that the first hearing of the suit means the first time that witnesses are examined. A Bench of the Calcutta High Court has held the first hearing to mean the day on which the issues are framed. Talewar Singh v. Bhagwan Dass [1908] 8 C.L.J. 147, and a Patna High Court Bench has held the same, Taibunnissa Begum v. Jagdip Pandey A.I.R. 1924 Patna 517 and I should infer that Rules 63 and 74, Civil Rules of Practice, were framed on the same assumption. A single Judge in Calcutta has held [Taran Mandal v. Ram Chandra Mandal [1919] 50 I.C. 296 that the first hearing means when the case is really gone into and the case then in question (on previous occasions) had not been gone into at all. 'Gone into ' is rather a vague phrase which may refer to the framing of issues or to the examination of witnesses, and this case does not shake the authority of those already quoted.

8. I find that first hearing in Order 13, Rule 1, means framing of issues and documents can only be , produced after that date on good cause being shown under Order 13, Rule 2, for Rules 63 and 64 have not in my experience led to any confusion. Ordinarily a Court should frame issues, and on that day if any party wants the immediate discovery of a document it should be filed. Otherwise the Court shall order a list to be filed and give a date for the production. The reason for having all the documents produced on the day when the issues are framed is mainly to prevent misguided parties fabricating documents to suit the issues. The other side has its preventive by being able to call for the document at once. The reason for not finding all the documents on the day when the issues are framed is that it is only after the framing that the parties can accurately decide which documents are essential, and unessential documents if filed in a case area nuisance to every one concerned. In the present case there was no question of calling for documents or of listing them, for the defendant at the time when the issues were framed did not profess to have any. His subsequent application proceeded, and could only proceed under Order 13, Rule 2. Under that rule the Court of trial is judge of the fact whether the cause shown is good and there is no ground for revision after the finding that the cause is bad. The aggrieved party must abide his remedy by appeal. Accordingly I dismiss this petition with costs


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