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First Appeal No. 44 of 1975, decided on 22nd December, 1985.

‑0. XIII, R. 2‑‑Production of document in Court‑‑Documents not produced earlier‑‑Effect‑‑Where genuine and authentic documents necessary for arriving at fair judgment had not been produced by defendant at earlier stage, such document, held, should have been allowed by Court to be produced at any stage of proceedings, provided defendant had given good reason for his inability to produce such documents at earlier stage and no prejudice was caused to plaintiff by such production.

‑‑‑0. VII, it. 18(1)(2)‑‑Documents not produced with plaint‑‑Effect‑ Applicability of bar against plaintiff and not against defendant‑‑Provisions of 0. VII, R. 18(1), C.P.C. which barred plaintiff to produce document without leave of Court, held, would be applicable to plaintiff only and not to defendant‑‑Provisions of 0. VII, R. 18(2), C.P.C., however, allowed facility to plaintiff to confront defendant with document which had not been produced by plaintiff earlier‑‑On the analogy of such provision same facility would be available to defendant as well.

Abdul Mateen for Appellant.

Afzal Ahmed for Respondent.

Date of hearing: 15th December, 1985.

This appeal is directed against the judgment and decree passed by the IInd Senior Civil Judge, Hyderabad on 30th August, 1975 whereby the suit of the plaintiff /respondent was decreed as prayed and interest was also allowed.

2. The facts are not much disputed. The appellant had imported steel joists and L/C had been issued by U.B.L., Hyderabad of the same. The Clearing Agents Messrs Muhammad Amin and Muhammad Siddique had been engaged who were paid the sales tax, customs duties and other charges. The clearing agents, however, became insolvent and, therefore, another clearing agent was appointed and the goods were cleared.

3. On 12‑7‑1973, the respondent filed suit for recovery of Rs.67,721 on account of the payments made by the Bank to clearing agents and also on account of instalment of a sum of Rs.12,500 due from the appellant.

The suit was resisted by the appellant on the ground that there was an agreement between them and the Bank that they wou1ZI be responsible only for the payment of Rs.49,559 and the Bank would take over the responsibility for the payment which has been made to Messrs Muhammad Amin and Muhammad Siddique which were to the extent of Rs.40,699. It was stated that the appellant had given in writing that whatever amouns were received from the Official Assignee on behalf of the insolvent will be credited to the Bank account. The appellant, had accepted the responsibility of the payment of Rs.50,000 in four instalments.

4. Several issues were framed of which issues Nos. 4 and 7 are important which are reproduced as under:‑

"(4) Whether the plaintiff can recover remaining amount of Rs.40,699 from the defendant in view of the statement made in para. 8 of written statement

(7) Are defendants liable to pay, the sum of Rs.40,699 blocked up with first clearing agent Messrs Muhammad Amin to the plaintiff in view of the admissions made in paras. Nos. 5 and 6 of the written statement "

5. The case of the plaintiff was proved by P.W. 1 Badar Alam Siddiqui who stated that the Clearing Agents Messrs Muhammad Amin and Muhammad Siddique were engaged and that the bank had created loan account called L.I.M. and that Sales Tax, Customs Duty and other charges were paid by the appellant to the clearing agents. He further stated that clearing agents became insolvent and since the sales‑tax, customs duty etc. of appellant was held up therefore, Rs.45,000 to Rs.46,000 were paid to the second clearing agent by the Bank and the goods were cleared. He stated that about Rs.9,000 were paid from the L.I.M. account of the defendant. He produced the statement of account. He admitted that the appellant had approached the Bank that the amount towards tax and duty paid to the insolvent clearing agents should be adjusted by the bank and that a settlement was arrived at between the parties on that basis which was to the Following effect:‑

"That the Bank would receive the amount given by the Official Assignee in the insolvency proceedings, to which the defendant gave, a no‑objection letter. The defendant also gave four post‑dated cheques for the remaining amount to the tune of Rs.50,000 only."

He stated that one cheque out of four cheques had been dishonoured. He denied in cross‑examination that the insolvent clearing agents were appointed by the bank but he admitted that they were on the approved list of the bank. He denied the suggestion that the Bank had approached the appellant for their approval of making payments and appointment of the insolvent clearing agents with retrospective effect. He admitted however, that in 1971 the insolvent clearing agents were appointed on behalf of .the appellant by the Bank. He admitted that the appellant had written a letter Exh.18 to the Official Assignee at the suggestion of the Bank. He further admitted that Zafarul Haq Memon, who was Acting Manager in July 1972 had written a letter Exhs. 19 and 20 were taken on record subject to the objection of the respondents counsel.

The appellant examined himself in defence and stated that he was never appointed as clearing agent but they were appointed by the Bank without prior permission from him and that he had rectified the appointment of those clearing agents. He further stated that the plaintiff Bank had informed him that Rs.49,550 were outstanding against him and that Rs.40,699 spent over previous agent would not be his liability. He admitted that he had to pay Rs.12,059 on account of the last instalment out of four which had been agreed to him. He admitted in cross‑examination that he appointed the next clearing agents. He admitted that he had paid Rs.5,600 to Messrs Muhammad Amin directly but the other amounts were paid by the bank to those agents.

6. The learned Civil Judge decreed the suit of the Bank and held that the appellant was responsible for the amount which had been paid to the previous clearing agents. For arriving at this finding he excluded from consideration the documents Exhs.19 and 20. While excluding these documents the Civil Judge was of the view that they were not produced at the relevant time and that the defendant/appellant had not shown that these two documents were not available previously and that they were not able to find them earlier.

7. It appears that the whole controversy revolve around these Exhibits. These two exhibits were put to Badar Alam Siddiqui, witness of the Bank, at the time of his cross‑examination. View of the Civil. Judge was that he had wrongly allowed those documents to be produced at the time when Badar Alam was being cross‑examined.

8. The appellant had made an application on 17‑5‑1974 for bringing these two documents on record and they had stated that these documents were misplaced and after much search they could not be found out. The application was supported by an affidavit. Objections were filed by the other side stating that the application was not maintainable.

9. What appears to me to be important is that there is almost nothing new which has been alleged in these two documents. The appellant /defendant had stated in para. 13 of its written statement that there was an agreement that only Rs.49,559 shall be paid by the appellant to the bank and that the appellant is liable for any other sum was totally denied. In fact, Badar Alam had even in his examination‑in‑chief stated that there was an agreement between the parties to the extent of Rs.50,000 being the liability of the appellant and the bank receiving the amount from Official Assignee in respect of the insolvent. He had admitted in cross that Exh.19 was written by Zafarul Haq Memon, who was acting Manager at that time and that he had even identified the signature of Zafarul Haq on Exh.19.

10. It, therefore, appears to me that the document Exh.19 was a genuine document and, therefore, it should have been really allowed to be produced by the defendant and there was in fact no prejudice caused to the respondent inasmuch as they had previously notice of this position from the written statement.

11. The only difficulty that I faced in this view that this document was produced by the appellant through the respondents witness at the time of his cross‑examination and that too without even making an application that this document should 'be taken on record. However, that is a technical objection. The appellant tried to meet that objection by making an application two days thereafter. At least this application should have been allowed because the authenticity of the document had been admitted by the witness of the respondent. Order XIII, Rule 2 of C . P.C. allows a document to be produced at any stage of the proceedings by a civil Court provided the Court comes to the conclusion that it could not have been produced earlier and it given reasons for the same. The reason given by the appellant was that he misplaced those documents and there was no affidavit which had seriously controverted this position except that it was stated that the appellant had not shown as to when he actually discovered the documents. In view of the authenticity of the documents there was no justification to disregard those documents at the time of final judgment.

12. Mr. Afzal Ahmed, learned counsel for the respondent had relied upon the provisions of Order VII, Rule 18, C . P . C . which bars the plaintiff to produce a document without the leave of the Court.

I am of the view that this bar applies to the plaintiff only and" there was no such bar against the defendant contained in Order VIII, C.P.C. But, in any case, sub‑rule (2) of Rule 18 of Order VII allows a facility to the plaintiff to confront a defendant with a document which has not been produced earlier by the plaintiff and, therefore, on the analogy of this provision a similar facility should have been allowed in favour of the defendant. I, therefore, took into consideration the documents Exhs.19 and 20. Exhibit 19 is a letter from the respondent Bank, dated 18‑7‑1972 to the appellant where it is clearly stated that the appellant should pay Rs.49,559 and that Rs.40,699 stuck up with the clearing agents, is recoverable from them. The last sentence of this letter says as under:‑

"You will not be concerned with it."

This letter, therefore, clearly makes the sum of Rs.40,699 as the responsibility of the Bank itself and the appellant was clearly absolved of that responsibility. In Exh.20, which was a letter written by the appellant to the bank, the appellant accepted the responsibility in respect of Rs.50,000 and agreed to pay the same. He also stated that the dispute is settled.

13. The letters make it quite clear that the Bank had agreed that Rs.40,699 paid to the previous clearing agents will not be the responsibility of the appellant who were merely asked to pay the sum of Rs.49,559 and the appellant acting on that letter based on three cheques of Rs.10,259 each which were cashed by the Bank and the appellant also admitted that they owed to the bank a sum of Rs.12,059 as last instalment. The bank was, thereafter, not in a position to claim more than Rs.50,000 from the appellant.

14. Consequently, I am of the view that the suit filed by the Bank could have been decreed only to the extent of Rs.12,059 against the appellant with interest at 10%s upon the said amount from.6‑9‑1972 till realization. In the circumstances of the case there will be no order as to cost. I am informed by Mr. Abdul Mateen that the appellant had paid Rs.12,059 to the bank. If that is so then of course the appellant would be entitled to have that adjustment in the execution proceedings. Decree be amended accordingly.

H. B. T. ‑‑‑‑‑ Decree amended accordingly.

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