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Ashoka Marketing Ltd. Vs. Rothas Kumar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberSuit No. 1181 of 1962
Reported inAIR1966Cal591,70CWN729
ActsCode of Civil Procedure (CPC) , 1908 - Order 13, Rules 1 and 2; ;Calcutta High Court Original Side Rules - Rules 2C, 2D, 4 and 20; ;Bengal Finance Act, 1941 - Section 25
AppellantAshoka Marketing Ltd.
RespondentRothas Kumar and ors.
Appellant AdvocateA.C. Bhabhra and ;S.K. Gupta, Advs.
Respondent AdvocateS. Sinha, Adv.
Cases ReferredGopika Raman Roy v. Atal Singh
- b.n. banerjee, j.1. rule 1 of order xiii of the code of civil procedure provides for production of documentary evidence 'at the first hearing of the suit.' the effect of non-production of documents, at the first hearing, is dealt with in rule 2 of order xiii, in the following language:'no documentary evidence in the possession or power of any party which should have been put has not been produced in accordance with the requirements of rule 1 shall be received at subsequent stage of the proceedings unless good cause is shown to the satisfaction of the court for non-production thereof: and the court receiving any such evidence 'shall record the reasons for so doing' ' (underlined, here into single quotation for emphasis).2. rules 1 and 2, referred to above, apply to documents in the.....

B.N. Banerjee, J.

1. Rule 1 of Order XIII of the Code of Civil Procedure provides for production of documentary evidence 'at the first hearing of the suit.' The effect of non-production of documents, at the first hearing, is dealt with in Rule 2 of Order XIII, in the following language:

'No documentary evidence in the possession or power of any party which should have been put has not been produced in accordance with the requirements of Rule 1 shall be received at subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for non-production thereof: and the Court receiving any such evidence 'shall record the reasons for so doing' ' (underlined, here into single quotation for emphasis).

2. Rules 1 and 2, referred to above, apply to documents in the possession and power of parties, on which they intend to rely, and also to documents which are ordered to be produced by the Court. Where documents are not in the possession and power of the parties, they cannot and therefore need not be produced at the first hearing. The language of Rule 1 is peremptory. This is so because the object of the rule is to prevent fraud by late production of suspicious documents. The Rule is not, however, penal in nature and the peremptory language of Rule notwithstanding, Rule 2 invests in Courts of law discretion to accept documents, particularly those which are above suspicion, even though not produced at the first hearing. Since Courts exist to assure fair trials, documentary evidence, even though filed late, should notgenerally be excluded, if such evidence be needed for proper decision of the case.

3. Regarding the expression 'first hearing of the suit', as used in Rule 1 of Order XIII and elsewhere in the Code of Civil Procedure, there appears some conflict of judicial opinion. Thus, dealing with a case under Order IX Rule 1 of the Code, 'Sarju Prosad, J.,' of the Patna High Court, observed that the date for appearance given in the summons served on the defendants was the date fixed for hearing of the case, (Palat Ahir v. Baijnath Mahton, : AIR1952Pat338 ). A Division Bench of this Court consisting of Chitty and Richardson, JJ. however observed in the case of Biswanath Sinha v. Kali Charan Sinha 27 Cal LJ 119: (AIR 1919 Cal 800):

'As the plaintiffs intended, if they could to prove the documents as part and parcel of the evidence in support of their claim, they intended to rely on them and under Order XIII Rule 1 'the parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence in their possession or power on which they intend to rely ........... andall documents which the Court has ordered to bepreduced'. Under Rule 2 'No documentary evidence not produced under Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof and the Court receiving any such evidence shall record the reasons for so doing'. Rule 1 speaks of the first hearing of the suit but no difficulty arises as to that because 'the word 'hearing' is one of those comprehensive words which may be used with a more or less extensive meaning according to the context'. Order XVII Rule 1 which gives the Court power to adjourn the hearing of a suit draws a distinction between the hearing of the suit and the hearing of evidence. There was a hearing of the suit if not on the day when issues were settled, at any rate on the 8th October 1912, though the hearing resulted only in an adjournment'. (underlined (here into ' ') for emphasis)

4. In a later case, Taran Mandal v. Raj Chandra Mandal, AIR 1919 Cal 70 Greaves, J., sitting singly, expressed the opinion that the words 'first hearing of the suit' in Order XIII Rule 1 meant the date when for the first time the case was called on for hearing and was really gone into and not the date when the case was fixed for hearing but was not gone into at all,

5. Regard being had to the conflict of opinion as indicated above, it become necessary for me to examine some of the provisions of the Code of Civil Procedure, bearing upon the question.

6. Order VII Rule 14 deals with production of documents, on which the plaintiff sues and is couched in the following language:

Rule 14. '(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.

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 list to be added or annexed to the plaint.'

7. Order VII Rule 15 deals with documents not in plaintiff's possession and power and reads as follows:

Rule 15: 'Where any such document is not in the possession or power of the plaintiff, he shall, if possible, state in whose possession or power it is.'

8. I need not concern myself with the other provisions for production of documents, contained in Order VII, for example, production of shop books. After a suit has been duly instituted, summons may be issued to the defendants 'to appear and answer the claim on a date to be therein specified' (vide Order V Rule 1).

9. Order V Rule 5 further provides: Rule 5: 'The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly:

* * * *

10. Order VIII of the Code deals with written statements and Rule 1 of the Orderrequires:

'The defendant may, and if so required by the Court, shall, at or before 'the first hearing' or within such time as the Court may permit, present a written statement of his defence.' (underlined (here into ' ') for emphasis).

11. Order IX of the Code deals with appearances of parties and consequences of non-appearance. Rules 1 and 6 of the Order read as follows:

Rule 1: 'On the day fixed in the summonsfor the defendant to appear and answer, theparties shall be in attendance at the Court-housein person or by their respective pleaders and thesuit shall 'then be heard' unless the hearing isadjourned to a future day fixed by the Court.'(underlined (here into ' ') for emphasis)

Rule 6; '(1) Where the plaintiff appeal's and the defendant does not appear when the suit is called on for hearing,' then

(a) if it is proved that the summons was duly served, the Court may proceed ex parte;

(b) if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;

(c) it if is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall 'postpone the hearing' of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

2. Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.' (underlined (here into ' ') for emphasis).

Order X deals with examination of parties by the Court and Rule 1 of the Order X is couched in the following language:

Rule 1: ''At the first hearing of the suit' the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials', (underlined (here into ' ') for emphasis).

12. Order XI deals with discovery and inspection. Rules 12 and 14 of the Order read as hereunder quoted:

Rule 12: 'Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit or make such order, either generally or limited to certain classes of documents as may, in its discretion, be thought fit. Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either or disposing fairly of the suit or for saving costs.'

Rule 14: 'It shall be lawful for the Court, at any time during the pendency of any 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 documents, when produced, in such manner as shall appear just.'

13. Order 11 Rule 15 provides for inspection of documents referred to in the pleading or affidavit filed by the other side. Rule 21 of the Order provides for consequence of non-compliance of an order for discovery in the following language:

'Rule 21: 'Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made accordingly.'

14. Order XIII deals with the production, impounding and return of documents and I have already referred to Rules 1 and 2 thereof.

15. Order XIV deals with settlement of issues. Sub-rule (5) of Rule 1 is hereinbelow quoted:

Rule 1: '(5) 'At the first hearing of the suit' the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend', (underlined (here into ' ') for emphasis).

16. Order XV deals with the disposal of suit at the first hearing and Rule 1 thereof is as follows:

Rule 1: 'Where 'at the first hearing of ft suit' it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment.' (underlined (here into '') for emphasis).

17. The form of summons, prescribed by the Calcutta High Court amendment, in Schedule 1 Appendix B, namely Form 1A, requires the defendant to appear on a date fixed by the summons and says as hereinbelow quoted:

'Whether you contest or do not contest the claim and, if you contest, to receive directions of Court as to the date on which you have to file the written statement, and the date of trial and other matters.'

The summons further gives notice to the defendant in the following language:

'Take notice that in the event of the claim not being contested the suit shall be decided at once.

'Take further notice that in default of your appearance on the day and hour before mentioned, the suit will be heard and determined in your absence.'

18. Now, the scheme of the Code is such that the date fixed by the summons, for appearance of the defendant, cannot be the date of hearing of the suit or the date contemplated by Rule 1 of order XIII of the Code, for production of documents, if the suit be a contested one. This date might have been the date of the first hearing, on a plain reading of Rules 1 and 5 of order V read with Rule 1 of order XIII, but the form of summons prescribed by the Calcutta High Court makes it otherwise. The dates of hearing referred to in Rule 1(5) of order XIV and in Rule 1 of Order XV appear to be too late for the disclosure of documents. The scheme of the Code is such that interrogation and discovery, production and inspection of documents should all be completed before a case be taken up for hearing on evidence. I respectfully agree with the observations of this Court in Biswanath Sinha's case (supra) that the word 'hearing' is one of those comprehensive words which may be used with a more or less extensive meaning according to the context. In the context in which they are used, the words 'at the first hearing of the suit' in Order XIII Rule 1, mean that hearing, after the pleadings are completed and before issues are framed under Order XIV. Upto that stage, production of documents are permissible, without cause being shown, as contemplated by Rule 2 of Order XIII, but thereafter 'good cause' must be shown for late production of documents.

19. In this matter, I am, however, more concerned with the rules for affidavit of documents and with rules for inspection of documents disclosed or produced, as under the Original Side rules of this Court. The provisions of the Civil Procedure Code apply to the Original Side of this Court, subject to the special rules prescribed for that side. This is a well settled proposition of law and may be culled from several decisions, namely, Udoy Chand Pannalal v. Khetsidaw Tilokchand : AIR1924Cal1025 ; Umesh Chandra Banerjee v. Kunjilal Biswas, AIR 1930 Cal. 685; Shaw and Co. v. Sisir Mukherjee, : AIR1954Cal369 ; Sarkar Estates (Private) Ltd. v. Kusumika Iron Works (Private) Ltd., : AIR1961Cal439 ; and Kamalamma v. Ismail Ispahani : AIR1951Mad895 . Now, Order XLIX Rule 3 of the Code excludes certain Orders and rules under such orders from their application to the ordinary and extraordinary jurisdictions of Chartered High Courts. Order XIII of the Code is not, however, so excluded. Nevertheless, I need take notice of certain special rules prescribed for the Original Side in this context. Chapter VII Rule 2B prescribes:

''Rule 2B: Save with the special permission of the Judge or Officer admitting the plaint, no original document shall be filed with the plaint but a copy of every document sued on shall be filed with the plaint--the original being produced at the time of the admission of the plaint and taken back again.'

Rule 2 in Chapter VIII deals with the forms of summons and Rule 4 in the said Chapter says:

'Rule 4: Unless otherwise ordered, every writ of summons, other than a writ of summons in a summary suit, shall require every defendant to enter appearance, and to file a written statement within such time, after the service of the writ, as the Registrar may fix, having regard to the residence of the defendant or defendants as given in the plaint.'

In the prescribed form, namely form 2 there is a column, for indication of the time within which appearance must be entered and written statement must be filed. Rule 2 in Chap. IX provides for extension of time to file written statement. After written statement has been filed, time arrives for an order as to affidavit of documents in the possession of the plaintiff and the defendant. This appears from Rules 7A and 8 in Chapter XI read with form 5 in Appendix C of the Rules of the Original Side. So far as commercial suits are concerned, with which I have to deal with in the present matter, Rule 2C in Chapter XII makes a special provision:

'Rule 2C. In all commercial suits affidavits of documents shall be filed by all the parties within 14 days from the filing of their respective written statements, and in the case of the plaintiff, from the filing of the first written statement.'

In this context, I need notice the second paragraph of Rule 4 in Chapter VIII, which is couched in the following language:

'Rule 4: In commercial suits the writ of summons shall also require the defendant to file an affidavit of documents within 14 days of the filing of his written statement.' I need not concern myself, in this matter with Chapter X, dealing with lists of suits etc., because Chapter XII contains special provision in respect of commercial suits. Rule 2D in Chapter XII provides:

'Rule 2D--On the expiry of two months from the filing of the last written statement, eachcommercial suit, unless it has been entered in the Prospective list, shall be set down in Chambers for directions. Two days' notice of such setting down shall be given by the Registrar to the parties appearing.' Rule 4 in Chapter XII further provides:

'Rule 4--Commercial suits shall, as far as possible, be set down for hearing before the Judge appointed from time to time by the Chief Justice for that purpose, and shall be heard in priority to all other suits appearing in the Peremptory List of suits on that day, except part-heard suits and other commercial suits on the same list, the hearing of which has been fixed for a prior date.'

Now, reading the above rules, governing the procedure in the Original Side, in the background of the provisions of Order XIII Rules 1 and 2 of the Code of Civil Procedure, I am of the opinion that all disclosures of documents in commercial suits must be made within the time fixed by Rule 2C in Chapter 12 and must not wait until the date of hearing of such suits, as indicated in Rule 4 of the said Chapter. In this context, I think it will not be out of place to refer to the case entitled In the Matter of an Attorney 25 Cal. WN 99: (AIR 1921 Cal. 267). The facts of the case were as hereinafter set out. A suit was brought for restitution of conjugal rights against the defendant who was a minor, the plaintiff alleging that the marriage took place on a certain date at Chandernagore. On the 26th August 1918, the guardian of the minor, who was also the guardian-ad-litem in the suit, filed his accounts in Court in the guardianship matter and filed with the accounts certain receipts by doctors, bearing dates which showed clearly that the defendant was, on those days, in Calcutta and was treated by those doctors. The dates of the receipts covered the period during which the marriage was alleged to have taken place. On the 22nd August, the guardian had filed an affidavit of documents in the suit in which nothing was mentioned with regard to those receipts. A few days before the trial came on, the attorney came to know about these receipts but they were not disclosed to the other side and they were produced for the first time in Court at the trial. The suit was dismissed. The plaintiff made an application for a Rule on the attorney for the defendant that the matter should go before a Bench of three judges in order that the conduct of the attorney, in not disclosing the documents, may be investigated before that Bench. In disposing of the application Greaves J. condemned the course taken by the attorney as 'perfectly wrong' but observed:

'But I am not prepared to say that it is such dishonourable conduct on his part either towards his opponents or towards the Court as would justify me in taking the very serious step that I am asked to take in this application, a step which should not, I think, be taken lightly unless the Court is satisfied that the question is of such a serious nature that it is in the interest of the profession as a whole and of litigants in general that a full enquiry should be made into it by a special Bench for that purpose. I should be the last, I hope, sitting here, as I think would any Judge, to weaken in any way the duty that lies upon attorneys to conduct their case with fairness and openness towards their clients, their opponents and towards the Court, but I am not satisfied that any good would result from taking the step that I am asked to take. The Advocate General, I think quite rightly, has brought this fact to the notice of the Court and it is for the Court to decide with regard to its officers whether the materials placed before it are such as to necessitate action on its part. I do not think myself that upon the materials before me the action that I am asked to take should be taken. The Advocate-General quite rightly has asked that I should lay down in the interests of the profession and of litigants generally the duty that lies upon attorneys to disclose fully and freely both at the time when affidavits of documents are made and subsequently, if other documents not disclosed by inadvertence come to their knowledge, * * * I lay that down without the slightest hesitation that it is the duty of an attorney to be extremely careful in ascertaining from his client, who has to make an affidavit of this nature, exactly what materials and documents are in his possession. It is further his duty, the moment he finds that there are other documents which have not been disclosed, at the very earliest moment to bring these documents to the notice of his opponent and give him an opportunity of inspecting them.'

His Lordship further observed that it was the duty of the attorney, directly he found that there were other documents, to have communicated by letter to the other side, to have offered them immediate production and inspection and to have undertaken to file a supplementary affidavit of documents at the earliest possible moment.

20. The above observations made in a suit for restitution of conjugal rights apply with greater emphasis in commercial suits, which, in the contemplation of the Original Side rules, are to be expeditiously heard out. Since after the decision by Greaves J,, long years have passed and the same laxity, which was condemned by His Lordship, has again become evident. It is therefore necessary to state the law again, so that last minute disclosures do not delay hearing of commercial suits.

21. The instant suit is a commercial cause. The suit was instituted on July 20, 1962. The defendants entered appearance, through a Solicitor, on August 29, 1962, and filed their written statement on November 26, 1962. Thereupon, the plaintiff company filed their affidavit of documents, on May 13, 1963. The defendants did not file their affidavit, in spite of reminders sent by plaintiff's Solicitor. At last on the application of the plaintiff company, there was an order made, on April 25, 1964, upon the defendants directing them forthwith to make their affidavit of documents. Then only did the defendants make an affidavit on May 5, 1964, disclosing documents. I have referred to the above dates in order to show what little respect was being shown to the rules of this Court in the matter of affidavit of documents. Non-compliance with the rules is one of the causes which make arrears to accumulate and causes law's delay. It is the paramount duty of this Court to see that the rules are obeyed. Laxity in such matters causes undesirable consequences, as I shall presently indicate.

22. It is said that on November 11, 1965. Counsel was briefed on behalf of the plaintiff company and, on December 13, 1965, the case was mentioned before Masud J., for fixation of an early date of hearing. His Lordship was pleased to direct that the suit shall appear in the peremptory list a fortnight after the then ensuing Christmas holidays. Thereafter, the suit appeared in the peremptory list of S.K. Datta J., on January 17, 1966. It is alleged that on consultation with the learned Counsel, engaged for the hearing, the plaintiff company realised, at that stage, that the records of the assessment of sales-tax upon the plaintiff company were relevant for the establishment of the plaintiff's claim. Thereupon, by a letter, dated February 2,1966 written by the Attorney for the plaintiff company to the attorney for the defendants, four documents, comprising of a sales-tax declaration certificate and marked portions from copies of three assessment notes, were disclosed and copies thereof were supplied to the defendants' attorney for convenience of inspection. Two days later on February 4, 1966, the plaintiff's attorney wrote to the attorney for the defendants disclosing a copy of a bill and sending a copy thereof to the defendant's attorney for convenience of inspection. A month thereafter, on March 4, 1966, when the case was appearing in the peremptory list of this Court, there was issued, at the instance of the plaintiff company, a subpoena upon an Assistant Commissioner of Commercial Taxes to produce before this Court, on March 8, 1966, certain documents, namely, grounds of appeal along with certified copies of assessment orders thereto annexed, for the years 1951-52 to 1956-57 and an order dated November 13, 1961, by an Assistant Commissioner. This subpoena turned out to be defective, inasmuch as the particulars did not indicate the name of the assessee. This defect in the subpoena being pointed out to this Court by the attorney for the Assistant Commissioner, leave was granted to the plaintiff company to take out a new subpoena. This was done by the plaintiff company. Thereafter, on March 16, 1966, the suit was taken for hearing by this Court. At that stage, the learned Counsel for the plaintiff wanted to rely upon six documents in the possession of the plaintiff company, said to have been disclosed to the attorney for the defendants earlier in the day, namely, portions of grounds of appeal for the years 1952-53 to 1955-56, portion of an assessment order for 1955-56 and certified copy of an order by an Assistant Commissioner of Commercial Taxes, dated September 30, 1961. Copies of the documents were sent to the Solicitor for the defendants for convenience of inspection. This last disclosure was made, because it was said that the Assistant Commissioner of Commercial Taxes objected to production of the said documents and took shelter under the provisions of Section 25 of the Bengal Finance (Sales Tax) Act, 1941, which made the aforesaid documents confidential documents. The learned Counsel for the defendants took objection to the course adopted by the attorney for the plaintiff company, namely, making last minute disclosure of documents to the embarrassment of the defendants.

23. In my opinion, the procedure adopted by the attorney for the plaintiff company, in the matter of disclosure of documents, should be strongly disapproved. If advice on evidence had been taken earlier it would not have been necessary for the plaintiff company to make disclosures of documents by driblets and upto the last moment, wholly in disregard of the rules of procedure governing this Court

24. I do not propose to exclude the documents disclosed by the plaintiff's attorney, by his letters dated February 2 and 4, 1966 and also by his letter dated March 16, 1966. The documents are not suspicious documents, some of them being parts of official records. In the case of Gopika Raman Roy v. Atal Singh, 56 Ind App 119 at p. 127: (AIR 1929 PC 99 at p. 103), their Lordships of the Privy Council observed:

'Further, as has been held in India, even where rules of exclusion apply and the documents cannot be filed without leave of the Court, that leave should not ordinarily be refused where the documents are official records of undoubted authenticity, which may assist the Court to decide rightly the issue before it.'

I respectfully follow the course indicated by their Lordships and permit the plaintiff's to make use of the documents disclosed on February 2 and 4 and on March 16, 1965, with an expression of my disapproval of the manner of disclosure.

25. So that there may not be repetition of such performances in future, I desire to observe as follows:

(a) Affidavit of documents, in commercial suits, must be filed within the time prescribed by Rule 20 in Chapter XII.

(b) For that purpose, solicitors should take proper advice on evidence, whenever necessary, sufficiently in advance. The type of excuse that wisdom dawned at the last moment, after consultation with Counsel engaged for hearing of the case, may not always be upheld as sufficient excuse.

(c) If other material documents, not disclosed earlier by inadvertence, come to the knowledge of an attorney, it is his duty to disclose the documents to the other side by letter and to offer immediate production and inspection thereof. There should also be supplementary affidavit of documents made at the earliest possible moment, (vide observation of Greaves I. in 25 Cal WN 99: (AIR 1921 Cal 267), referred to above).

(d) If documents need be disclosed after the case appears in the peremptory list, there must be further affidavit made showing good cause for earlier non-production, so that the Court may record its reasons for permitting a party to disclose documents at a late stage, if satisfied with the reasons. Such permission should be liberally granted particularly if the documents disclosed are prima facie above suspicion but may also be refused in cases of gross belatedness, embarrassing or prejudicing the other side.

If the above procedure be not observed, it becomes necessary to adjourn commercial suits, otherwise ready for hearing and appearing in the peremptory list. This causes dislocation of business and harassment to the party against whom the documents are disclosed.

26. In the instant case I accept the cause shown and make an order in terms of prayers (a) and (b) of the Summons although I do so with some reluctance regard being had to the inordinate delay by the plaintiff Company in the matter of disclosure of documents. .

27. The plaintiff must pay costs of this Chamber application to the defendants.

Certified for Counsel.

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