ASHOKA MARKETING LTD Vs. ROTHAS KUMAR

JUDGEMENT

(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:

(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 the 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 not generally 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 XI, 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 (1) Palat Ahir v. Baijnath Mahton, AIR 1952 Pat. 338. A Division Bench of this Court consisting of Chitty and Richardson, JJ., however, observed in the case of (2) Biswanath Sinha v. Kali Charan Sinha, 27 CLJ 119.