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       REPORTABLE    

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

                  CIVIL APPEAL NOs. 10041-42 OF 2010

M/s Rohini Traders                              .... Appellant(s)

Versus

M/s J.K. Lakshmi Cement Ltd.                       .... Respondent(s)

J U D G M E N T

R.K. Agrawal, J.

1) These appeals have been filed against the orders dated  

07.11.2008  and  16.12.2008  passed  by  the  High  Court  of  

Delhi at New Delhi in RFA No. 406 of 2007 and R.P. No. 415  

of 2008 respectively.  Vide order dated 07.11.2008, the High  

Court allowed the appeal filed by M/s J.K. Lakshmi Cement  

Ltd.  -respondent  herein  and  set  aside  the  judgment  and  

decree dated 14.03.2007, passed by the Additional District  

Judge, Delhi in Suit No. 125 of 2004, while restoring the suit  

filed by M/s Rohini Traders - appellant herein for trial afresh  

as per the observations made in the judgment.

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Brief Facts

2) (a) The appellant claims itself to be a sole proprietorship  

concern  working  as  third  party  commission  agent  of  the  

respondent-Company.  The appellant claimed a sum of Rs.  

12,05,231/-  as  dues  to  be  payable  by  the  respondent-

Company as on 31.03.2004.  Several requests were made to  

the respondent-Company to pay the amount due but to no  

effect.  Even after serving a legal notice dated 09.04.2004 to  

the  respondent-Company,  it  remained  un-complied  with.  

The  appellant  filed  a  suit  praying  for  decree  of  Rs.  

14,21,250/- including the principal amount as also interest at  

the rate of 18 per cent per annum.  The suit was contested  

by  the  respondent-Company  on  the  ground  that  it  was  

barred  by  limitation  as  also  on  merits.   The claim of  the  

appellant  was  denied  and  it  was  stated  that  as  per  the  

record of the respondent-Company, a sum of Rs. 4,62,000/-  

is  liable  to  be  paid  by  the  appellant  to  the  respondent-

Company.  Other claims made by the appellant were also  

denied.   

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(b) During the pendency of the suit, the appellant served a  

notice dated 05.07.2006 under Order XII Rule 8 of the Code  

of Civil Procedure, 1908 (in short ‘the Code’) calling upon the  

respondent-Company to produce and show to the Court on  

the first date of hearing of the suit the following documents,  

viz.,

1.  Purchase Orders pertaining to the order placed by  

the plaintiff;

2. Original record of the TDS Certificate issued by the  

company to the plaintiff;

3. Details of the payment made to the plaintiff;

4.  Details  of  the  payment  received  from  the  party  

whom order was placed by the plaintiff;

5. Copy of the Ledger of the company related to the  

plaintiff from the Financial Year 1997 to 2004; and

6. Copies of the Balance Sheets filed in the Income Tax  

Department and ROC for the years 1997 to 2004.

(c) It appears that the documents were not produced on the  

first  date  of  hearing.   However,  during  the  course  of  the  

hearing  one  Shri  R.K.  Gupta,  General  Manager  of  the  

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respondent-Company (DW-1) appeared before the Court and  

produced the documents mentioned at  Item Nos.  3-6 and  

also stated that Item Nos. 1 and 2 would be available with  

the appellant.  The appellant did not make any endeavor to  

get the documents produced by the respondent-Company on  

record and to mark them and exhibited.             

(d) The  trial  Court,  vide  judgment  dated  14.03.2007,  

decreed the suit in favour of the appellant herein for a sum  

of Rs. 14,21,250/- along with the interest at the rate of 9 per  

cent per annum from the date of institution of the suit till the  

date  of  its  realization.   The  trial  Court  held  that  the  

respondent-Company had failed to explain as to why it had  

not placed on record its books of accounts and other related  

papers as asked for in the notice under Order XII Rule 8 of  

the Code and drew an adverse inference.   

(e) Feeling aggrieved, the respondent-Company preferred  

an appeal before the High Court of Delhi.

(f) The  High  Court,  after  considering  the  material  on  

record,  came  to  the  finding  that  the  witness  of  the  

respondent-Company (DW-1) was cross-examined in support  

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of the documents produced by him in the Court pursuant to  

the notice under Order XII  Rule 8 of the Code.   However,  

since the documents were neither exhibited nor brought on  

record, the High Court felt it proper in the interest of justice  

to restore the suit for further trial with certain directions.

(g) An  application  seeking  review  of  the  judgment  and  

order dated 07.11.2008 was filed whereupon the High Court  

re-summoned  the  trial  Court  record  and  re-perused  the  

testimony of DW-1 from which it gathered that the witness  

had brought all the documents pertaining to the notice dated  

05.07.2006  with  respect  to  Item  Nos.  3-6  and  the  other  

documents were with the appellant and the witness was also  

cross examined in respect of the documents so produced.  

The review application was, therefore, dismissed.

(h) Against  the  said  orders,  the  appellant  has  preferred  

these appeals before this Court.

3) Heard Shri Sunil Kumar, learned senior counsel for the  

appellant  and  Shri  M.L.  Lahoty,  learned  counsel  for  the  

respondent-Company.

Contentions:

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4) Learned senior counsel for the appellant submitted that  

the respondent-Company had not filed any document before  

the trial  Court in support of its claim made in the written  

statement.   Further,  it  had  not  complied  with  the  notice  

dated  05.07.2006  under  Order  XII  Rule  8  of  the  Code  

requiring it to place certain documents before the Court at  

the time of first date of hearing and, therefore, an adverse  

inference ought to have been drawn and which was rightly  

drawn by the trial Court.  According to him, the High Court  

ought not to have remanded the matter for fresh trial only  

on the ground that such documents were produced before  

the Court by DW-1.

5) Learned senior counsel  has relied upon a decision of  

the Lahore High Court in  Badri Parshad and Another vs.  

Shanti  Lal  Seth and Others AIR  1941  Lahore  228  and  

submitted that the documents so produced are to be given  

in evidence and must be admitted in toto.  He further relied  

on a decision of the Allahabad High Court in Union of India  

vs. Firm Vishudh Ghee Vyopar Mandal AIR 1953 All. 689  

wherein it was held that the provision of Order XII Rule 8 of  

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the Code refers to notice to produce documents at the time  

of the hearing, so that if they are not produced, the party  

calling for them may give secondary evidence of the same.  

According to him, as the respondent-Company has failed to  

produce  the  documents  mentioned  in  the  notice  dated  

05.07.2006  under  Order  XII  Rule  8  of  the  Code,  the  trial  

Court had rightly drawn an adverse inference and decreed  

the suit on the basis of the evidence on record.

6) Learned  counsel  for  the  respondent-Company,  

however,  submitted  that  even  though  the  respondent-

Company had not filed any document before the trial Court  

yet it produced the same before the Court as asked for in the  

notice dated 05.07.2006 and DW-1 was also cross-examined  

by the appellant.   Therefore,  the  trial  Court  ought  not  to  

have  discarded  the  documents  so  produced  by  the  

respondent-Company.  The High Court had rightly remanded  

the matter for fresh trial.        

Discussion:

7) We have gone through the materials on record and find  

that even though the respondent-Company had not brought  

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on record any document  before the trial  Court  yet  it  had  

produced certain documents mentioned at Item Nos. 3-6 in  

the  notice  dated  05.07.2006  and  DW-1  was  also  cross-

examined with regard to the same.  The relevant portion of  

the statement made by Shri R.K. Gupta (DW-1) in the cross-

examination is as under:-

“However, I have brought the documents required by the  plaintiff in terms of the notice dated 05.07.2006 vide Item  Nos. 3 to 6 and the record in terms of Item Nos. 1 and 2 of  the said notice would be available with the plaintiff.”

“I cannot say if payment to M/s Rohini Traders was being  made on transaction to transaction basis or consolidatedly.  I have seen the statement of account from which it is clear  that payments have been made both ways i.e., transaction  to transaction as well as month to month.  It is correct that  the  last  entry  in  the  statement  of  account  is  dated  30.04.2003.  It is correct that till date we have not filed any  suit against the plaintiff for recovery.”

The claim of the appellant is that if the facts mentioned in  

the said documents are taken into consideration, it may just  

be possible that the claim of the appellant may not stand.  

8) At this juncture, it is relevant to quote Order XII Rule 8  

of the Code which is as under:-

“Notice  to  produce  documents.—Notice  to  produce  documents  shall  be in  Form No. 12 in  Appendix C,  with  such variations as circumstances may require.  An affidavit  of the pleader, or his clerk, of the service of any notice to  produce, and of the time when it was served, with a copy  of  the notice  to  produce,  shall  in  all  cases  be  sufficient  

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evidence of the service of the notice, and of the time when  it was served.”

9)  From a reading of the aforesaid provision as also the  

law settled on this aspect, we are of the view that it was the  

duty of appellant herein to get the documents produced by  

the respondent-Company under Order XII Rule 8 of the Code  

exhibited in the suit proceedings so that a true and correct  

finding  either  way  could  have  been  recorded  by  the  trial  

Court.  It is not in dispute that the appellant did not take any  

step to get those documents marked and exhibited before  

the trial Court.   

10) The object of Order XII Rule 8 of the Code is to facilitate  

the plaintiff or any other party to get a document on record  

which is not in their possession or in possession of the other  

party.  If a document has been produced then it is the duty  

of  the party  who has asked for  such production to  get  it  

placed on  record.   If,  however,  the  said  document  is  not  

placed on record, then adverse inference against the party  

who  has  produced  the  same  cannot  be  drawn,  more  so,  

when the party who has produced the said document before  

the Court has been cross-examined vis-à-vis that document.  

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11) In our considered opinion, the High Court was right in  

setting aside the judgment and decree passed by the trial  

Court  and  remanding  the  matter  for  fresh  decision.   The  

directions  given  by  the  High  Court  do  not  call  for  any  

interference.   

12) In view of the above discussion, the appeals fail and are  

hereby dismissed with no order as to costs.

...…………….………………………J.                  (RANJAN GOGOI)                                  

.…....…………………………………J.         (R.K. AGRAWAL)                         

NEW DELHI; FEBRUARY 03, 2015.  

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