Report No. 163
Q.15. Order 7, rule 14, 15, 18 (Production of documents on which plaintiff sues): Clause 17(iii) (iv) (v) of the Bill
Existing Order 7, rules 14, 15, and 18 of the Code deal with the production or listing of documents, alongwith the plaint. For this purpose, the present scheme makes a distinction between:
(a) documents which form the foundation or basis of the suit (one can call the the "basic documents"), and
(b) documents which merely constitute evidence of the claim ("evidentiary documents").
Documents under category (a) above have to be physically produced (if in the plaintiff's possession etc.), while documents under category (b) above are merely to be listed.
Further, non-production or non-listing of documents does not necessarily mean exclusion (of the documents) from evidence. In every case, the Court can, under existing Order 7, rule 18, grant leave to admit them in proper cases.
This existing scheme is sought to be replaced (under the Bill) by a more drastic scheme, whose chief features are as under:
(a) All documents must be physically produced along with the plaint;
(b) Non-compliance with the above cannot be cured, as the court's power to grant leave is sought to be taken away, by amending Order 7, rule 18.
Now, with reference to the above amendments, at least two major points require consideration. First, whether it is really necessary to insist on physical production and delivery (at the commencement suit) of even evidentiary documents? This would mean burdening the court with many documents which may ultimately never be formally tendered in evidence (say, because the defendant's admission of certain facts may render them superfluous). The present scheme, which makes a distinction between "basic" and "evidentiary documents", has worked well. Evidentiary documents are to be produced when the issues are (or are about to be settled). See Order 13, rules 1-2 (whose scheme is examined in detail in AIR 1990 Gau 7). If the defendant, has, by that stage, already admitted certain facts, the related documents will have no role to perform.
Secondly, to completely deprive the court of the power to permit production etc. of a document at a later stage (for sufficient cause) appears to be a course uncalled for. It is not in every case that non-production will cause prejudice to the defendant. If, for example, there is no possibility of fraud, etc. and there is no doubt about the existence of a document at the date of suit, the court should admit the document.
Devidas v. Pirjada Begum, 1884 ILR 8 Born 377; Arjun v. Sankariali, AIR 1957 AP 7841; Shibkumar v. Rasulbux, AIR 1959 Cal 302.
This is particularly the case where certified copies of public documents are sought to be produced at a late stage.
Talewar Singh v. Bhagwan Das, (1908) 12 CWN 312.
The utility of the discretion conferred at present on the court to relax the rigour of the rules relating.to production of documents has been recognised at the highest level:
(i) Karida v. Waqhu, MR 1930 PC 68.
(ii) Imambandi v. Mutsaddi, ILR 43 Cal 878 (PC).
One small point (not arising out of the proposals) can be conveniently mentioned, at this stage. Present Order 7, rule 15 reads as under:
"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."
It can be considered whether, at the end of Order 7, rule 15, the following words should be a added "and take steps for getting it produced before the court by applying to the court for issuing process for such production". [See also Q.29, below].