State Bank of Saurashtra vs Hirachand Lala Solanki, Narendrakumar Ratilal, Laxman Raja Bamania and Nathubhai Bijal Bamania and others

G.D. Kamat, J.—All these civil revision applications can be conveniently disposed of by a common judgment as they arise out of identical orders in identical situations.

The petitioners are a body corporate constituted under the State Bank (Amalgamation) Ordinance, 1950, and instituted suits against the respondents for recovery of loans granted against hypothecation of fishing boats, etc. Upon non-recovery of the loan amounts, 10 suits were instituted before the court of the Civil Judge, Senior Division, Panaji. Before trial commenced an application dated April 2, 1987, was instituted in each and every suit seeking leave of the court to produce six documents which were not listed in the list of documents annexed to the plaint. It was contended in the application that when the then manager came with documents prior to the suit for making the proof of evidence, it was realised that several important documents had not been listed in the list annexed to the plaint and which were otherwise executed by the defendants, who had obtained loans from the bank. Leave was sought under the provisions of Order XIII of the Code of Civil Procedure. The respondents opposed the grant of leave as sought by the bank and the learned trial judge by the impugned orders dated February 5, 1988, all identical orders, rejected leave in favour of the petitioners. The impugned orders state that no sufficient cause had been made out.

The present revision applications are directed against these identical orders in all the 10 suits.

It is unfortunate that these matters are pending since 1988. One reason that is discernible is that in some suits some legal representatives had to be brought on record. The service of notice at Diu took away a large amount of time and hence the delay.

I have considered the matter from all its angles. Rule 14(1) of Order VII in terms states that where the plaintiff sues upon a document, it is mandatory that he shall produce the same along with the plaint. Sub-rule (2) makes it incumbent upon a plaintiff to file a list of documents on which the plaintiff relies along with the plaint. But what is relevant to notice is rule 18 or Order VII which permits leave being granted to the plaintiff to produce documents which had not been filed or which had not been mentioned in the list of documents filed with the plaint. Sub-rule (2) of rule 18, however, does not bar the production of a document during the cross-examination of the opposite party or witness or for the purpose of refreshing the memory. Rules 1 and 2 of Order XIII again make provision for production of documents. Rule 1 says that all documentary evidence of every description has to be filed in court before the settlement of issues. Rule 2, however, speaks of non-production of documents. It says that no documentary evidence in the possession or power of a party, which should have been, but has not been, produced in accordance with the requirements of rule 1, shall be received at a 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 such evidence shall record the reasons for doing so. What is discernible from all these rules is that the court has power to allow production of a document which has not been listed earlier subject, however, to good cause being shown. It is equally a well-settled position of law that the expressions like "good cause" and "sufficient cause" have not been defined anywhere in the Code. These expressions are otherwise liberally construed depending upon the exigency. Admittedly, in the present suits loans had been granted by the bank and it is common knowledge that large sets of documents are executed by the loanees. The bank has admittedly filed suits for recovery of the outstanding loans in their books and the case set out was that when the manager of the bank brought the files of the concerned defendants for the purpose of evidence, it was at that stage realized that several documents executed by the defendants had not been listed earlier. Even before the settlement of issues it is open to the plaintiff to submit an additional list of documents in addition to the first list of documents annexed to the plaint with leave of the court. It is amply clear that with the leave of the court additional documents can be relied upon by the plaintiffs before the settlement of issues as also after the settlement of issues, indeed after obtaining leave of the court.

The documents for which leave has now been sought are of the following description :

(1) Advocate''s notice.

(2) Bank''s notice.

(3) Bank''s confirmation of the balance as on particular dates as the case is.

(4) Certificate of registration of the bank''s lien with the Port Authorities.

(5) Party''s letter to the deputy engineer for registration of the bank''s charge on the boat made with the bank''s finance.

(6) Sanction letter addressed to the borrower.

Having regard to these documents and the case set up in the application it is not known as to how the trial judge took a hypertechnical view that good cause has not been shown. It is nobody''s case that the application instituted in April, 1987, was not prior to the trial in the suit. Hence there is no question of the defendants being taken by surprise and on the contrary they will have sufficient tie even to inspect the documents. It must also not be forgotten that production and non-production of documents is a procedural matter and procedure is handmade. The procedure does not create any vested right. Upon all this it must be held that denial of production of these documents may also cause serious prejudice to the bank which is suing the respondents for recovery of loans which the bank has held out that it had granted to enable the defendants to purchase trawlers and which were hypothecated to them.

For all these reasons, therefore, the impugned order of February 5, 1988, in each of the suits cannot be sustained. The same is quashed and set aside. The application of the bank dated April 2, 1987, in all the suits is allowed and the trial court is directed to proceed with the trial. Rule to the extent indicated made absolute. Parties are left to bear their own costs.