M/S. ROHINI TRADERSversusM/S. J.K. LAKSHMI CEMENT LTD.

                   [2015) 1 S.C.R. 981


                 M/S. ROHINI TRADERS                         A
                            V.
           M/S. J.K. LAKSHMI CEMENT LTD.
          (Civil Appeal Nos. 10041-42 of 2010)
                  FEBRUARY 03, 2015
                                                             B
      [RANJAN GOGOi AND R.K. AGRAWAL, JJ.]

     Code of Civil Procedure, 1908 - Or. XII r. 8 - Notice
under - By the plaintiff seeking the defendant to file cerlain
documents - Trial Courl decreed the suit drawing adverse C
inference against the defendant for not filing the documents
- In appeal, High Courl set aside the decree remanding the ·
matter for fresh trial- Review petition dismissed - On appeal,
held: High Courl rightly remanded the matter for fresh trial
setting aside the decree - Trial courl could not have drawn D
adverse inference against the defendant because it had
produced the document before the courl and the patty was
a/so examined vis-a-vis that document - It was the plaintiff
who failed to place them on record.
                                                             E
    Dismissing the appeals, the court

     HELD: 1. The object bf Order XII Rule 8 of the CPC
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     F
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        G
has produced the said document before the Court has
been cross-examined vis-a-vis that document. [Para 10]
[987-H; 988-A-B]

                           981                               H
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A      2. The High Court was right in setting aside the
  judgment and decree passed by the trial Court and
  remanding the matter for fresh decision. Even though the
  respondent-Company had not brought on record any
  document before the trial Court, yet it had produced
B 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. It was the duty of the
  appellant to get the documents produced by th,e
  respondent-Company under Order XII Rule 8 of CPC
c exhibited in the suit proceedings so that a true and
  correct finding either way could have been recorded by
  the trial Court. The appellant did not take any step to get
  those documents marked and exhibited before the trial
  Court. [Paras 7, 8 and 11) [986-F-G; 987-F-G, 988-C)
D       Badri Parshad and Anr. vs. Shanti Lal Seth and Ors. AIR
    1941 Lahore 228; Union of India vs. Firm Vishudh Ghee
    Vyopar Manda/ AIR 1953 All. 689 - referred to.
                         Case Law Reference:
E         AIR 1941 Lahore 228       referred to          Para 5
          AIR 1953 All. 689         referred to          Para 5
        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
    10041-10042 of 2010.
F
        From the Judgment and Order dated 07.11.2008 of the
    High Court of Delhi in R.F.A. No. 406 of 2007.
          Dilip Singh, Parmanand Pandey for the Appellant.
G       M. L. Lahoty, Pabam K. Sharma, Gargi 8. Bharali,
    Himanshu Shekhar for the Respondent.
          The Judgment of the Court was delivered by
      R.K. AGRAWAL, J. 1. These appeals have been filed
H against the orders dated 07.11.2008 and 16.12.2008 passed
 ROHINI TRADERS v. J.K. LAKSHMI CEMENT LTD.                  983
             [R.K. AGRAWAL, J.]

by the High Court of Delhi at New Delhi in RFA No. 406 of 2007      A
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     B
restoring the suit filed by Mis Rohini Traders - appellant herein
for trial afresh as per the observations made in the judgment.

Brief Facts
     2. (a) The appellant claims itself to be a sole                C
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.      D
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-       E
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          F
were also denied.

      (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          G
first date of hearing of the suit the following documents, viz.,

     1. Purchase Orders pertaining to the order placed by the
     plaintiff;
                                                                    H
                                    ••
    984       SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A         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
B         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
c         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
D 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
E 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
F   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.
G
        (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,
H came to the finding that the witness of the respondent-Company
 ROHINI TRADERS v. J.K. LAKSHMI CEMENT LTD.                       985
             [R.K. AGRAWAL, J.]
(DW-1) was cross-examined in support of the documents                     A
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.                                                  B

      (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               C
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.
                                                                          D
    (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                   E
respondent-Company.

Contentions:

      4. Learned senior counsel for the appellant submitted that
the respondent-Company had not filed any document before the              F
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             G
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              H
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A 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
B Vyopar Manda/ AIR 1953 All. 689 wherein it was held that the
  provision of Order XII Rule 8 of 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-
C 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,
D 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
E 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
F that even though the respondent-Company had not brought 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
G 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
H         Nos. 3 to 6 and the record in terms of Item Nos. 1 and 2
 ROHINI TRADERS v. J.K. LAKSHMI CEMENT LTD.                  987
             [R.K. AGRAWAL, J.] .
    of the said notice would be available with the plaintiff."       A

    "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         8
    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    C
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:-                                      D

     "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        E
     of the notice to produce, shall in all cases be sufficient
     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       F
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 urider 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.      G
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     H
    988        SUPREME COURT REPORTS            (2015] 1 S.C.R.

A 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
B 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-a-vis that document.

        11. In our considered opinion, the High Court was right in
C 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
D are hereby dismissed with no order as to costs.

    Kalpana K. Tripathy                          Appeals Dismissed.