A citation on return of unmarked documents

THE HON'BLE SRI JUSTICE V.V.S.RAO     

Civil Revision Petition No.1913 of 2006

20-06-2006

Lokara Om Kumar, S/o.late Amarnath Rao  

Baikan Satyanarayana, S/o.Late Baikan Mallaiah

and others

Counsel for Petitioners:   Mr.K.Mohan

Counsel for the Respondents 1 to 4: Mr.V.V.N.Narayana Rao for Mr.G.Dhanamjai 

:ORDER: 

        This is a civil revision petition filed under Article 227 of Constitution of India.  It is filed by the defendant in O.S.No.2053 of 2003 on the file of the Court of the Principal Junior Civil Judge, Ranga Reddy District at L.B.Nagar, Hyderabad.  The suit is filed for injunction simpliciter by the respondents herein.  Along with the written statement, it appears, the petitioner filed a sale deed dated 24.5.1995.  The same was however not marked as an exhibit in the evidence.  The petitioner, therefore, filed an application being I.A.No.387 of 2006 under Order XIII Rule 7 (2) of Code of Civil Procedure, 1908 (CPC).  He prayed for return of the sale deed and certified copy of the General Power of Attorney dated 24.6.1991.  He stated in the affidavit accompanying the said application that he requires the documents to avail bank loan.  This application was opposed.  Taking a view that unless and until the suit is disposed of, the request of the petitioner for return of the documents cannot be accepted, the trial Court dismissed the application.  This is challenged as one vitiated by grave error apparent on the face of record.

       

Learned Counsel for the petitioner placed reliance on subrule (2) of Rule 7 of Order XIII of CPC in support of the contention that the documents not admitted in evidence can be returned to the person producing the same.  Per contra, the learned Counsel for the respondents/plaintiffs opposed the civil revision petition.   He would urge that as the petitioner desires to raise bank loan by creating a charge on the property, he is not entitled for return of the documents.

       

A short but interesting question that requires an answer is whether a document not admitted in evidence and which does not form part of the record can be returned before conclusion of the suit to the party who produced such document.

        It is needless to point out that every party to the suit has required to produce all the documents relied on as evidence - (i) At the stage of presenting pleadings (see Order VII Rule 14 and Order VIII Rule 1A of CPC); (ii) At the stage of trial on or before settlement of the issues; and (iii) During the trial during the cross-examination.  It is however not necessary for the trial Court to mark all the documents produced by the parties to the suit.  Only such documents admissible in evidence, which are properly stamped and registered (if

necessary), can be received as evidence and marked as exhibits.  Only those documents, which are admitted in evidence and marked as exhibits, form part of the court record.  All other documents either generated by the registry of the Court during the process of the suit or during the proceedings - like copies of the summons, notices and other administrative forms; and the documents produced  by the parties to the suit, which are not admitted in evidence and which are not marked as exhibits, do not form part of the record.  It is only such documents including the original copies of the plaint, written statement, the documents admitted in evidence, proceedings of the Court and office copies of the orders of the Court, which form part of the record.  This record has to be retained by the Court till the matter is finally disposed of.  No purpose would be served by retaining the documents, which are not admitted in evidence.  This is made clear by Rule 9 of Order XIII, which reads as under.

 

9. Return of admitted documents.- (1) Any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be entitled to receive back the same,- (a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and

(b) where the suit is one in which an appeal is allowed, when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of:

Provided that a document may be returned at any time earlier than that prescribed by this rule if the person applying therefor-       

(a) delivers to the proper officer for being substituted for the original,-

(i) in the case of a party to the suit, a certified copy, and

(ii) in the case of any other person, an ordinary copy which has been examined, compared and certified in the manner mentioned in sub-rule (2) of rule 17 of Order VII, and

(b) undertakes to produce the original, if required to do so:

Provided also, that no document shall be returned which, by force of the decree, has become wholly void or useless.

(2)  On the return of a document admitted in evidence, a receipt shall be given

by the person receiving it.

        A plain reading of the above rule would show that any person whether a party to the suit or not desirous of receiving back any document produced by him in the suit and placed on record is entitled to receive the same - (i) when the suit has been disposed of; (ii) where the suit is one in which appeal is not allowed; (iii) where the suit is one in which the appeal is allowed, but no appeal has been preferred within the time prescribed by law and appeal has been disposed of.  Now a reference may also be made to Order XLI of CPC, which deals with appeal from original decrees.  After receiving the appeal, the appellate Court is required to call for the record of the suit from the trial Court.  The record that is sent for is only such record and documents which form part of the suit and not otherwise.

        There is yet another reason to come to the conclusion as above.  Under Order XVI of CPC, the Court can issue summons to any witness to take his  evidence or to produce records.  In a case where a person is summoned to produce only records (documents) and if some of the documents are not marked by the party summoning the witness to produce records, it would cause any amount of  prejudice if the documents, which are not admitted in evidence, are not returned immediately to the person who produced such documents.  In such a case whether  the party is likely to use the returned document as a security to raise the loan

or is likely to part with the subject matter of the document, are irrelevant while considering an application under Order XIII Rule 7(2) of CPC.  As noticed herein above, as per Rule 9 of Order XIII of CPC, only those documents, which are admitted and marked as evidence, cannot be returned till the disposal of the suit.

        Further more a reference to the Destruction of Records Act, 1917 (the Act,for brevity) and the Rules made thereunder by High Court of A.P., would also support the view that there is no necessity for the Court to keep unmarked documents in the records or become a custodian of such unmarked documents unwillingly.  Destruction of Records Act, 1917, empowers the competent authority; High Court in the case of judiciary - to make Rules.  In exercise of powers under Section 3(3) of the Act, High Court of Andhra Pradesh made the

Rules.  The relevant Rules are Rules 2 and 3, which read as under.

2. Records to be divided in to parts - Every record shall, after its completion and immediately before it is deposited in the record room, be divided into parts as shown in the table given in part-B of the Appendix, and to facilitate this division, each paper shall, so soon as it is filed with the record, be numbered and marked off in the index as appertaining to one or another of such parts.         Unfiled documents to be kept apart and destroyed - Other documents which have been produced by parties but have either not been tendered in evidence, or having, been tendered in evidence, have been rejected, shall be kept apart from the record of the suit or other proceeding to which they belong and entered in the register of unfilled documents and shall, if not reclaimed by the party who produced them, be retained in the court in which they were produced for a period of one year from the date of the final order of the court in the suit or proceeding in which the documents were produced, and shall, at the expiration of that period be destroyed in the manner prescribed by rule 8 infra.

        Provided that notice of destruction shall be given in the manner prescribed by rule 6 infra in the month of January or July succeeding the date of expiry of the period of one year preferred to in this rule and also be affixing to the notice board of the Court (at the time of publication in the Gazette) a copy of the notice published in the District Gazette.  Rule 10 infra shall not apply to such documents. No application is necessary for the return of the documents produced, which have either not been tendered in evidence, or if tendered, have been rejected.  It is sufficient if a receipt for their return is taken in the list with which have been put up.

3.  Periods of retention of records - The parts of records described in the table given in Part C of the Appendix shall be retained for the periods respectively specified against them from the date of their completion provided that in any case the presiding officer may, for reasons to be recorded in writing, direct that any of the papers in any one part be transferred to any other part for which a longer period of retention is prescribed; in which case the fact shall be noted in the index and the papers dealt with as if they had belonged from the commencement to the part to which they were so transferred. Processes to defendants in ex-parte suits - The processes issued to defendants or respondents who are ex-parte in suits or appeals falling under sub-heads 1 to 4 of Part C.1 shall be transmitted by the District Court to Subordinate Courts at the time of the destruction of Part-I so that they may be included in Part I of the execution record, in cases in which the execution is not complete.  If at the time of destruction of Part-I execution is complete, the record-keeper should include the said processes in Part I execution record.

As per Regulation 2, unfilled documents, which have been tendered in evidence or those documents, which have been tendered in evidence, have been rejected, have to be returned to the party who produced such documents.  If those documents are not reclaimed by the party, who produced them, then only they have to be retained in the Court for a period of one year from the date of final order. This only means that there is no necessity to keep the unmarked documents in the case file.  In the eventuality of the party producing the unmarked documents not reclaimed them then only such documents have to be retained in the Court for a period of one year.  Therefore, the view taken by the learned Principal Junior Civil Judge, Ranga Reddy District at L.B.Nagar, is unsustainable in law.

        For the above reasons, the civil revision petition must succeed, as the learned trial Judge has committed a grave error apparent on the face of record. The Civil Revision Petition is allowed with costs.