ORDER 12 RULE 8 CPC AND ITS NON COMPLIANCE: EFFECT

 

Order 12 Rule 8 CPC and its non compliance: effect

The provision of Order 12 Rule 8 of Code of Civil Procedure is provided for in order to seek production of documents in the course of the proceedings of the case. The notice under the aforesaid provision is to be given by a party or pleader of a party to the other party or their pleader for seeking to produce such documents which may be necessary for just decision in the pending case. The notice can be served seeking production of such documents which may not even be part of pleading or may not be annexed in the list of documents while a suit is filed or a written statement is filed, but the same are perceived as relevant. It is, though, not a case , as regards application under Order 11 Rule 12,14 and 16 of CPC which has to be filed in the court and the documents sought to be produced shall have to be mentioned in the list of index and pleading. Before delving further, the provisions as contained in Order 12 Rule 8 of CPC may be reproduced herein for ready reference:

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

However, the pertinent point is whether mere non production of the documents sought for under the aforesaid provisions shall necessarily lead to adverse inference by a court or not? 

A case reported as Vipan Sodhi And Anr vs Kola Ram & Anr bearing no. CR No.5225 of 2007 (O&M) may be referred to in this context.

It is observed in the aforesaid judgment that careful reading of Order 12 Rule 8 of CPC shall make it clear that that such notice can be served by one party to the other to produce documents. There is no mandate that such notice should be served through Court. Though, another procedure is prescribed in the Code i.e  under Order XI of CPC, when, during the pendency of the suit, the parties can file an application for discovery by interrogatories or for admission and denials of the documents. Rule 5 of Order XI further stipulates that an application can be moved before the Court for seeking production of documents that may be in power and possession of such party or person. It may be noted that the provisions of Order 11 and Rule 12 are vastly different to Order 12 Rule 8 of CPC. Still further, as per Order 12 Rule 8, only a demand is to be made, thereby, calling upon the other side to produce certain documents. Whether such documents are relevant is to be examined by the Court. Thus, it follows that the provisions of Order XI and XII with regard to production of documents and effect of non-production thereof is based on a different footing, altogether. In case, the respondent while replying to the application, states stated that the documents sought are not relevant for the decision of the case, the same shall have to be duly considered. In Vipan Sodhi (Supra) no adverse inference for non production was drawn by the Court in the facts of the case.

The Division bench of Delhi High Court in a matter captioned as Harish Mansukhani vs Ashok Jain RFA 4/2008 has also succinctly dealt with the aforesaid issue. It is observed in para no. 9 as under:

“9. On the basis of the evidence on record the learned Trial Judge has decreed the suit. Four pronged reasoning can be culled out from the decision of the learned Trial Judge. From the fact that the defendant admitted having issued cheques to the plaintiff and in respect whereof he was being prosecuted the conclusion drawn is that the said evidence, evidences commercial transactions between the parties and led assurance to the truthfulness of the case pleaded in the plaint more particularly for the reason the defendant did not produce his account books. Secondly the reason that the defendant did not refute the notice of demand served by the plaintiff on 1.9.2005, proved as Ex.PW-1/3. Thirdly that the defendant did not produce the original of the 128 bills when called upon to do so vide Ex.PW-1/5 i.e. the notice served by the plaintiff upon the defendant during trial under Order 12 Rule 8 CPC. An adverse inference has been drawn against the defendant for non- production of the original bills. Lastly, the notice of demand dated 4.7.2006, Ex.PW-1/7, has been held as proof of sales effected by the plaintiff under the bills in question since the sales tax authorities had raised a demand for payment of sales tax qua said bills”.

It is further recorded in Harish Mansukhani (Supra) as under:

“13. As held in the decision reported as  Om Prabha Vs Abinash Chand AIR 1968 SC 1083 it is now settled that a decision cannot be based on facts not pleaded and no evidence would be permissible to be led with regard to a fact which has not been pleaded in its pleading by a party”.

14. There is considerable merit in the contention urged by learned counsel for the appellant that having embarked on the journey by pleading in the plaint that goods were supplied to the defendant the plaintiff could not prove that the goods were supplied to third parties, but at the asking of the defendant. That the goods were delivered to the defendant is a fact distinct from the fact that goods were delivered to a third party, but at the asking of the defendant. In this connection it assumes importance that there is no evidence acknowledging receipt of the bills by the defendant as also that there is no evidence to establish that the goods covered by the bills were at all delivered to the defendant or any third party to whom the defendant allegedly directed delivery to be made. The justification by the plaintiff of not having obtained any acknowledgment due to cordial relationship between the parties holds no water, when, as per the evidence of PW-2 most of the goods were delivered to third parties. Obviously as per the case attempted to be proved (without being pleaded) the plaintiff had no commercial dealings with said third parties and obviously maintained no cordial relations with them. Thus, normal prudent business conduct of acknowledging delivery of goods ought to have been followed and there being no evidence of the same, the probability would be that no goods were supplied to any third party at the asking of the defendant. As per the testimony of PW-2 the services of a transporter was engaged to deliver the goods to third parties outside Delhi. The said transporter to whom freight must have been paid has not been examined. The evidence of the witness of the plaintiff i.e. PW-2 as also of the plaintiff becomes shaky when we browse through the 128 bills, 88 whereof have been noted in a tabular form hereinabove. The names of 31 parties are written at the rear of 128 bills. The witness of the plaintiff only spoke about 4 out of said 31 parties”.

18. The totality of the evidence leans against the plaintiff, but what is most fatal is the variance between what was pleaded in the plaint and what was sought to be proved. No doubt, the defendant did not produce his statement of account but still, the plaintiff has to stand on his own legs to prove his case”.

The hon’ble Division bench has further held in Harish Mansukhani (Supra) that:

21. An adverse presumption can be drawn against a party who does not produce a document in his possession. Thus, before a presumption can be drawn against a party called upon to produce a document, it has to be proved that the document production whereof was sought was in the possession of the party concerned. The defendant had denied that any bill was raised on him. Thus, without proving that the plaintiff had raised the bills on the defendant, in that, without establishing that physical custody of the bills was with the defendant, no adverse inference could be drawn against the defendant.

22. No doubt, not responding to a legal notice is a piece of evidence wherefrom an adverse inference can be drawn against the noticee. But, the said adverse inference is no more than presumptive evidence which by its very nature is weak evidence. Where the totality of the evidence weighs in favour of the person issuing the notice, non response to a notice by the noticee can be put in the scales to reassure the Court that contemporaneously the noticee kept silent evidencing a kind of acquiescence. But, the quality of evidence led to prove the case positively and its probative value has always to be kept in mind and given primacy.

23. A plaintiff has to prove his case and stand on his own legs. No doubt, the defendant did not produce his books of account but that does not mean that the plaintiff must succeed on said account.

24. The evidence led by the plaintiff is shaky. The variance between what the plaintiff pleaded and attempted to prove is a serious infirmity in the case of the plaintiff. Unfortunately, the learned Trial Judge has eschewed reference to the quality of the evidence led; the variance between pleading and proof; as also has ignored certain essential features of the evidence to which we have referred to in our decision, thereby rendering the impugned judgment and decree liable to be reversed.

The hon’ble Division bench was thus pleased to accordingly reverse the judgment and held that no presumption could be drawn against the respondent for non production of documents due to the reasons illustrated above.

What therefore could be noticed is that Order 12 Rule 8 of CPC is an enabling provision for just and proper decision of the case, but, mere issuance of notice under the aforesaid provision and non-compliance thereto i.e either by not responding to notice or though, responding to the same with reasons elucidating as to why the notice is misconceived, shall not necessarily elicit adverse inference. What is required to be ascertained by the Court is that whether the documents sought for, was relevant for effective adjudication of the case and further, whether non production thereof was deliberate and with a view to conceal the documents. The adverse inference, on account of non production of documents as sought under Order XII Rule 8 of CPOC has to be weighed on the facts and circumstances of the case and there shall not be automatic presumption against a respondent, if notice under Order XII Rule 8 of CPC is either not responded to and/or the documents are not provided for while filing a fitting reply.   

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                                  Anil K Khaware

Founder & Senior Associate

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