/ORDER

1. This second appeal is directed against the judgment and decree dated 25.08.2015, passed by the learned District Judge, North Tripura, Dharmanagar in Money Appeal No. 01/2014 wherein the learned Appellate Court has set aside the judgment and decree dated 07.07.2014, passed by the learned Civil Judge, Jr. Division, Dharmanagar in M.S. 01/2013.

2. The respondent (hereinafter referred to as the plaintiff, for convenience) instituted a money suit being No.MS 01/2013 for realization of Rs. 43,250/- from the appellant (hereinafter referred to as the defendant). In the plaint, the following reliefs are sought for:

"(a) A decree for realization of money amounting to Rs. 43,250/- only payable by the defendant.

(b) Interest @ 18% per annum w.e.f. 09.02.2012.

(c) Cost of the Suit Any other relief/reliefs which the plaintiff is legally entitled to"

3. It is the pleaded case of the plaintiff that being proprietor of "Webcom Computer" he entered into business transactions with the defendant. The defendant in course of business used to purchase computers and papers and also used to make payment against the purchase. In course of such transactions, the defendant did not pay Rs. 43,250/- (Rupees forty three thousand two hundred fifty) as on 04.08.2009. The plaintiff made repeated requests for payment of the said sum of Rs. 43,250/- and also sent a letter to the defendant to pay the same when the defendant by his reply dated 20.02.2012 requested the plaintiff to accommodate some reasonable time for payment of the said amount with a further request to give details of the aforesaid amount. Accordingly, the plaintiff on 16.03.2012 as per his accounts books made all the details available to the defendant. Since the defendant did not pay any amount, the plaintiff again sent a letter on 05.06.2012 requesting to make the payment of dues within 7(seven) days from the date of receipt of the said letter but no payment was made. Ultimately, the plaintiff issued a demand notice on 04.07.2012 and on receipt of the said notice, the defendant replied that the plaintiff is not entitled to get Rs. 43,250/-.

4. On the above facts, the suit was instituted for realization of Rs. 43.250/- as aforestated.

5. On receipt of the summons, the defendant being appeared, submitted written statement denying the fact and stated that the plaintiff is entitled to get only Rs. 13,345/- (Rupees thirteen thousand three hundred forty five).

6. On the basis of the pleadings, the trial Court framed the following issues:

(I) Is the suit maintainable

(II) Is there cause of action of the suit

(III) Is the suit barred by limitation

(IV) Is the plaintiff entitled to get any relief

(V) To what relief/reliefs parties are entitled

7. Learned Civil Judge, Jr. Division, Dharmanagar, North Tripura vide judgment and decree dated 07.07.2014 dismissed the plaintiffs suit for recovery of Rs. 43,250/-. First Appeal being preferred by the plaintiff, the learned Appellate Court came to the conclusion that the plaintiff is entitled to Rs. 43,250/- and reversed the judgment of the trial Court thereby.

8. Being aggrieved, the defendant has preferred the present second appeal challenging the legality and validity of the judgment passed by the learned District Judge decreeing the suit of the plaintiff.

9. Heard learned counsels for the parties and perused the case records. The plaintiff in order to prove his case laid evidence by adducing two witnesses including himself. He also has exhibited 6(six) nos. of documents viz. Exbt.1-Copy of books of accounts, Exbt.2- letter dated 09.02.2012 addressed to the defendant, Exbt.3- letter dated 05.06.2012 addressed to the plaintiff written by the defendant, Exbt.4- letter dated 20.02.2012 which is the reply to the plaintiffs letter dated 09.02.2012 (Exbt.2), Exbt.5- Advocates Notice and Exbt.6-reply to the Advocates Notice by the defendant.

10. The defendant to substantiate his case, examined himself as D.W.1 and he has exhibited copy of money deposit slip dated 03.07.2008 which is marked as Exbt.A and another money deposit slip dated 29.09.2008 marked as Exbt.B. Exbt.C is the another slip showing deposit of Rs.5000/- (subject to objection). Exbt.D is the account slip dated 10.03.2009 and Exbt.E. is the another slip dated 08.09.2009.

11. While deciding the Issue No.I, the learned trial Court observed that, although the defendant raised the question of maintainability of the suit of the plaintiff but has not specifically stated the grounds for non-maintainability and during argument learned Advocate of the defendant was not able to show any legal point for non-maintainability of the suit.

12. At the time of admission of the present second appeal, following substantial question of law was formulated:

"Whether the reversal judgment and decree passed by the learned District Judge in Money Appeal No.01 of 2014 suffer from non-appreciation/ misappropriation of the evidence in terms of Order VII, Rule 17 of CPC

Any other substantial question of law may be formulated at the time of hearing."

13. In course of hearing both the learned counsels particularly, the defendant has preferred to confine his argument to the substantial question of law which was already formulated as aforestated and did not press for formulating any other substantial question of law. Hence, this Court has proceeded to decide the substantial question of law as reproduced herein-above.

14. In view of the aforesaid substantial question of law, let this Court first to have a re-look to order VII Rule 17 of CPC. It reads as under:

"17. Production of shop book.- (1) Save in so far as is otherwise provided by the Bankers Books Evidence Act, 1891 (18 of 1891), where the document on which the plaintiff sues is an entry in a shop book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies.

(2) Original entry to be marked and returned -- The court, or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification, and, after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed."

15. Both the Courts below have dealt with the application of the provision of Order VII Rule 17 CPC in the facts of the present case. While deciding the Issue No. IV, which covers the question raised in this appeal, the learned trial Court has made an observation that according to Order VII Rule 17 CPC when a plaintiff makes an entry in a shop-book or other accounts in his possession or power, the plaintiff shall produce the books of the shop at the time of filing of the plaint together with a copy of the entry on which he relies. Thereafter, the Court or such Officer as it appoints in this behalf shall mark the documents for the purpose of identification and after examination and comparing the copy with the original if it is found to be correct then certify it to be so and return the book to the plaintiff and cause copy to be filed.

16. The learned court has also observed that the Xerox copy of the account book was filed along with the plaint and said extract Xerox copies of the account books was marked as Exbt.1 after comparing with the original text in course of trial.

17. Keeping in mind the provision of Order VII Rule 17 CPC, the learned trial Court has observed in its findings that though the Xerox copies of the relevant account books were filed along with the plaint, but at that instant the said Xerox copies of the account books were not compared with the original as the original of the same was not produced before the Court, and as such, there was violation of the procedures as provided under Order VII Rule 17 CPC. Further findings and decisions are that though the Xerox copies of the account books were marked as Exbt.1 being compared with the copy of the original account books at the stage of adducing evidence of the plaintiff, but, that would not make a document admissible as because the question of admissibility of the document can be decided at any stage of the trial by the Court without any objection being raised by the parties to the suit. However, the trial Court after assessing the evidence and materials on record found that the defendant had the debt of Rs. 43,250/- payable to the plaintiff-respondent.

18. Primarily, the findings and decisions of the learned trial Judge for doubting and rejecting of Exbt.1 i.e. Xerox copies of the books of accounts of the plaintiff was centered around the failure of the plaintiff to strict observance of the procedure laid down under Order VII Rule, 17 of CPC. Based on these findings, the learned trial Judge dismissed the suit of the plaintiff. The First Appeal being preferred by the plaintiff, the Appellate Court has formulated two questions for determination. These are as follows:

(i) Whether the trial Court was justified in holding that the plaintiff failed to prove that amount of Rs. 43,250/- was payable by the defendant to him on account of purchase of computer and its accessories by the defendant from him on credit

(ii) Whether the judgment and decree of the learned trial Court calls for any interference in appeal

19. Both the points were tied up together for determination of the appeal. The learned Appellate Court found that it is the admitted case of the defendant that a sum of Rs. 43,250/- was due to the plaintiff out of the business transactions between them.

In view of admission of the debt of Rs. 43,250/- payable to the plaintiff by the defendant, the learned First Appellate Court has held that the learned trial Court should not have dismissed the suit. Consequently, the appeal preferred by the plaintiff was allowed by the learned District Judge, North Tripura, Dharmanagar vide judgment and decree dated 25.08.2015 and 31.08.2015 in Money Appeal No. 01/2014.

20. Mr. P. Roy Barman, learned counsel appearing on behalf of the defendant would contend that the learned trial Court has correctly held that the failure to follow the procedure laid down in Order VII Rule 17 CPC being mandatory in nature makes the entire Money Suit filed by the plaintiff bad in law. The learned counsel has further contended that since the original account books was first introduced before the Court at the stage of adducing evidence of the plaintiff, the learned trial Court has committed a serious error in allowing the original account books and admitted in evidence marking the same as Exhibit after comparing the same with the original copies of the account books. Pointing out this irregularity, the learned counsel further submits that mere marking the document as exhibits will not make the document admissible in evidence. The learned counsel while dealing with the judgment of the First Appellate Court has strenuously argued that the findings and decisions of the Appellate Court are perverse and contrary to mandatory provisions of law. In order to substantiate his submission, the learned counsel for the appellant has relied upon a decision of a Division Bench of this Court, passed in the case of the Oil and Natural Gas Commission Ltd & Ors. v. Sri Narayan Ch. Das and Ors., in RFA 5/2012 along with RFA 11/2012 and CO(FA) 5/2012. Lastly, the learned counsel has urged the dismissal of reversal decree of first appellate Court.

21. On the other hand, Mr. S. Bhattacharjee, learned counsel appearing for the plaintiff has submitted that the learned trial Court went beyond the scope of deciding a case pleaded by the parties, in other words, the learned trial Court has made out a third case not pleaded by any of the parties to the suit. The learned counsel would contend that this approach of the learned trial Court is untenable in law. In support of his submission he has relied on a decision reported in (2008) 17 SCC 491 [LQ/SC/2008/1958] . The second fold of submission of Mr. Bhattacharjee, learned counsel is that the defendant did not raise any objection when the original account books was produced before the trial Court at the time of adducing of evidence by the plaintiff, and failure to that since the original account books was produced before the Court in original which was compared with the Xerox copies of the account books by the Court and brought the document into evidence, the evidentiary value of Exbt.1 and its admissibility as proof of transaction and debt of the defendant to the plaintiff cannot be challenged at a later stage. The right of the defendant-appellant is acquiesced to challenge the admissibility of Exbt.1. In support of his submission, the learned counsel has relied on a decision In R.V.E. Venkatachala Gounder v. Arulmigu Viswesarswami & V.P. Temple & Anr., reported in (2003) 8 SCC 752 [LQ/SC/2003/1006] , Para 20 and in Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills (Refineries) & Ors., reported in (2010) 8 SCC 423 [LQ/SC/2010/889] Para 10. Added to it, the learned counsel has invited my attention to the decision of the learned Court in regard to Issue No.I which deals with whether the suit is maintainable, where, the learned Court has specifically held that the defendant could not show any legal point for non-maintainability of the suit.

22. The learned counsel for the plaintiff has further submitted that knowing fully well the contents pleaded in the plaint, the defendant neither pleaded in his written statement nor raised any objection against admissibility of the account books at the time of adducing evidence. The trial Court while writing judgment made out a new fact that procedure laid in Order VII Rule 17 was not followed while it was nobodys case during the entire proceeding. Lastly, it was argued that Exbt.1 is admissible in evidence and conjoint appreciation of Exbt.1, Exbt.4 and statement made in the cross-examination by the defendant clearly substantiates that the plaintiff-respondent is entitled to get Rs. 43,250/- and has supported the judgment and decree passed by the learned Appellate Court. In support of his submission, the learned counsel for the plaintiff has relied upon the following decisions:

i. (2008) 17 SCC 491 [LQ/SC/2008/1958] [Bachahaj Nahar v. Nilima Mandal & Anr.],

ii. (2003) 8 SCC 752 [LQ/SC/2003/1006] , Para 20 [R.V.E. Venkatachala Gounder v. Arulmigu Viswesarswami & V.P. Temple & Anr.]

iii. (2010) 8 SCC 423 [LQ/SC/2010/889] , Para 10 [Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills (Refineries) & Ors.]

iv. (2001) 3 SCC 179 [LQ/SC/2001/352] , Para 17 [Santosh Hazari v. Purushottam Tiwari]

v. (1999) 3 SCC 722 [LQ/SC/1999/445] , Para 5 & 6 [Kondiba Dagadu Kadam v. Sabitribai Sopan Gujar & Ors.]

23. In the light of the submissions advanced before me, I am called upon to answer the substantial questions of law -- "whether the reversal judgment and decree passed by the learned District Judge in Money Appeal No.10/2014 suffer from nonappreciation/ misappropriation of the evidence in terms of Order VII Rule, 17 of CPC

24. To deal with this substantial question of law as formulated, I have perused the findings of the First Appellate Court in reversing the judgment passed by the learned trial Court. The learned First Appellate Court after appreciation of evidence on record has observed that the defendant himself has admitted his debt of the sum of Rs. 43,250/- to the plaintiff which occurred in case of business transactions with the plaintiff. The extract of the said admission of the defendant in course of cross-examination may be reproduced herein-below for convenience, in verbatim.

"I have transaction with the plaintiff from 20.04.2007 to 04.08.2009 and on various dates. I brought articles and I also gave payment and out of the transaction the amount which is due is Rs.43,250/-. It is not a fact that the plaintiff should get only Rs.13,345/-."

25. In my considered view, as a matter of fact, since the defendant himself admitted the debt of Rs. 43,250/-, there was no need for the learned trial Judge to have held any further inquiry whether the plaintiff has been able to prove his case or not on the established principle of law that admitted facts need not be proved. The learned District Judge on the basis of the said admitted fact decided the appeal dismissing the judgment and decree passed by the learned trial Judge and thus reversed the judgment of the trial Court.

26. However, the matter is also required to be examined as to whether the findings of the learned trial Judge that non observance of the procedure laid down in Order VII Rule 17 of CPC militates the dismissal of the suit.

Here, I find that at the time of filing of the plaint, the list of documents was also mentioned in the plaint as well as copies of the said documents were also filed along with the plaint. After perusal of the copy of the plaint, the defendant filed written statement wherefrom it is revealed that he did not raise any plea that the procedure laid down in Order VII Rule 17 of CPC was not followed and the suit was liable to be dismissed on that ground alone. Even the defendant could file an application raising preliminary objection as to the maintainability of the suit for non compliance of the provision of Order VII Rule 17 of CPC but he preferred to proceed with the suit. Issues were framed and one of the issues was whether the suit was maintainable

27. While deciding the issue No.I, the learned trial Judge himself observed thus:

"Although the defendant raised the question of maintainability of the suit in the written statement but have not specifically stated the ground for non-maintainability and during argument learned Advocate of the defendant could not show any legal point of non maintainability of the suit". .. That being so, I find that the suit is well maintainable and thus the issue is decided in favour of the plaintiff."

28. In the case in hand, even no issue was framed in regard to compliance or non-compliance of Order VII Rule 17 of CPC. However, the learned Court took up the question suo motu to determine whether there was non-compliance of Order VII Rule 17 of CPC and in course of assessing the evidence he detected that at the time of filing of the plaint, no original account books was produced and further, the Xerox copies of the account books were not compared with the original account books by the Court at the time of filing of the plaint.

29. After appreciation of evidence, in regard to Issue No.IV, the learned Judge at Para 18 of the judgment has observed thus:

"18. It appears from the cross-examination of the defendant that he deposed that he has business transaction with the plaintiff from 20.04.2007 to 04.08.2009 and on various dates he brought articles and also gave payment and out of the transaction the amount which is due is Rs. 43,250/-. Here though the defendant has admitted his liability to pay Rs. 43,250/- but the initial proof of burden lies upon the plaintiff to prove that the defendant is liable to pay to him the amount claimed and the same is to be proved by way of adducing sufficient documentary evidence such as the certified copies of the books of account receipts of purchase issued by the plaintiff time to time to the defendant etc. Here, the plaintiff has been unable to prove Exbt.1 which is inadmissible in evidence".

30. On bare reading on this finding of the learned trial Judge, in my considered view, the same is unreasonable and enough to hit conscious of the Court and thus, perverse. I am constrained to say that the learned trial Judge has no preliminary concept as to how to appreciate the evidence in the light of the provisions of the Evidence Act. More so, the learned trial Judge badly lacks knowledge in regard to the settled law that admitted facts need not be proved as enshrined in Section 58 of the Indian Evidence Act, 1872 which reads as under:

"58. Facts admitted need not be proved- No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."

31. In my view, statements in the account books of a person are admissions made by him and when it is not confronted despite opportunity being afforded to the other party but not availed, rather, admitted by the said party amounts to corroborative to the statements who asserts the statements made in the accounts books in his favour. Admissions are substantive evidence by themselves in view of Section 17 of the Evidence Act. If a person voluntarily with the knowledge of the facts admits regarding any matter in issue in course of judicial proceeding and such an admission is not retracted before being acted upon by the either side, the same operate as an estoppel against the person making it. Admission, as is well known, is the best proof of a claim. I reiterate that Section 58 of the Evidence Act states that the facts admitted need not be proved.

Here, I may gainfully refer a decision in Joshna Gouda v. Brundaban Gouda and another, (2012) 5 SCC 634 [LQ/SC/2012/109] , [SCC pp. 639 & 640, Para 19], where the Apex Court while dealing with the veracity of nature of admissibility of the documents in the light and spirit of Section 58,18, 101 and 21 of the Evidence Act has categorically held thus :

"19. ..An admission must be clear and unambiguous in order that such an admission should relieve the opponent of the burden of proof of the fact said to have been admitted."

32. In the present case, the learned Appellate Court did not only rely upon the oral admission of the defendant regarding the amount of debt to the plaintiff as aforestated but I find from the records that the statements of the accounts relied upon by the plaintiff were unequivocally and comprehensively corroborated by the defendant when the same was brought to his notice in course of his examination before the trial Court. More specifically the statement of accounts was produced by the plaintiff at the stage of his examination the learned trial Court allowed him to produce the original account books and the photocopies of the statement of accounts were compared with the original account books by the Court in presence of the defendant but the contents of the said statement of accounts were also proved by the plaintiff in presence of the defendant and after being satisfied the learned Court has marked the statement of accounts as Exbt.1. The defendant did not raise any objection at any stage in course of admission of these documents into evidence and bringing it to the record being marked as Exbt.1.

33. In furtherance thereof, when the defendant stood as witness in course of his examination, the said statement of accounts,Exbt.1, including his signature were brought to the notice of the defendant and he confirmed the contents of the statement of accounts as well as he identified his signature as Exbt.1/1, Exbt. 1/2, Exbt.1/3 and Exbt.1/4 where it is noted unambiguously that the due as on the last date of transaction was of Rs. 43,250/-. So, in my view, in both ways the statement of accounts can be said to be proved and in conformity with the provisions of Section 61, 62 and 63 of the Evidence Act.

34. In the result, I did not find any infirmity in the formal proof of statement of accounts (Exbt.1) furnished by the plaintiff. More-so, the defendant at no stage had denied the receipt of the supplied articles or electronic accessories by the plaintiff during the course of business.

35. The records of the case reveals that the relevant transactions made between the plaintiff and the defendant were brought to the notice of the defendant at the time of adducing evidence. The original account books was produced at the time of evidence and after the same being satisfactorily proved and the photocopies were compared with the original statement of accounts, the learned trial Court has brought the document into evidence. The defendant also has admitted his signature and contents of Exbt.1 and he never raised any objection to the accounts made in Exbt.1. So, Section 62 of the Evidence Act also has been complied with.

36. Even a photocopy or a Xerox copy of a document is admissible as secondary evidence if it is proved to be genuine. Here, in the present case, the accuracy of Exbt.1 and the entries regarding financial transactions, in course of the business is neither denied nor disputed by the defendant, rather, he confirmed the entries and the contents therein including his signature against those entries as genuine. Above all, those entries were compared with the original books of account in front of him and within his knowledge when he had the liberty to raise objection before those entries therein being marked as exhibit.

37. Being faced with the similar situation the Apex Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesarswami & V.P. Temple & Anr., reported in (2003), 8 SCC 752 [LQ/SC/1996/1881] has observed as follows: [SCC. p.764, Para 20].

"20. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as an exhibit, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."

38. The said principle was relied upon by the Apex Court in Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills (Refineries) & Ors., reported in (2010) 8 SCC 423 [LQ/SC/2010/889] .

39. Here, it would be apposite to refer Order XIII Rule 4 of CPC which reads as under:

"4. Endorsements on documents admitted in evidence. -- (1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:-

(a) the number and title of the suit,

(b) the name of the person producing the documents,

(c) the date on which it was produced, and

(d) a statement of its having been so admitted, and the endorsement shall be signed or initialled by the Judge.

(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialled by the Judge."

40. The above provision postulates that before admitting a document in evidence it has to be endorsed by or on behalf of the Court when the endorsement is signed and initialed by the Judge that amounts to admission of the documents in evidence. A conjoint reading of Order XIII Rule 4 CPC along with principle laid down in R.V. E. Venkatachala (supra), I can infer that an objection to the admissibility to the document has to be read before such endorsement is made and in the event of such objection the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend, the document being endorsed, admitted or not admitted in evidence. The said question was dealt with by the Apex Court in R.V.E. Venkatachala (supra), in Paras 19 and 20 which was discussed in the preceeding paragraphs.

41. In the case at hand, the Xerox copy of the accounts and the entries therein were admitted in evidence and the learned trial Judge has endorsed the same and he also put his initials at that time, no objection was raised by the defendant. The defendant has failed to raise prompt and timely objection which, according to me, amounts to waiver of the requirement for insisting of formal proof of a document, the document itself which is sought to be proved at a later stage. Moreover, after perusal of the evidence adduced by the defendant it is evinced that the defendant neither has pleaded that the suit is not maintainable for non compliance of the provision of Order VII Rule 17 of CPC nor in his evidence he has deposed that he has raised the plea that the plaintiff should be non-suited due to non-compliance of the said provision.

42. Since no such contention was raised before the learned trial Court at the time of adducing evidence, so at this stage, it cannot be said that the original account books were not produced in the Court at the time of filing of the suit or not. Moreover, it cannot be said that merely for non-compliance with the aforesaid provision, the plaintiff should be non-suited. But, the trial Court all on a sudden had raised this plea suo motu at the time of passing judgment without any foundation either in the pleadings or in the evidence adduced by the defendant, rather, the learned trial Court after appreciation of evidence ought to have held that the defendant himself has proved the case of plaintiff.

43. However, in the context of the case, I find substance in the submission of the learned counsel for the plaintiff that the learned trial Judge has made out a third case and in my view, a Court cannot make out a case on his own which is neither pleaded nor raised during the course of trial. On careful consideration of the whole matter, I feel that serious mistakes both on facts and law were committed by the learned trial Judge that caused miscarriage of justice to the plaintiff-respondent.

44. Here, I may profitably refer a well settled and perennially important principle enunciated in Ram Sarup Gupta v. Bishun Narain Inter College & Ors., (1987) 2 SCC 555 [LQ/SC/1987/362] , [SCC. p. 562 to 563, para 6], placing reliance upon in Bhagwati Prasad v. Shri Chandramaul, [1956] 1 SCR 286 wherein the Apex Court has held thus:

"6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the license was irrevocable as contemplated by Section 60(b) of theand, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead; the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v. Shri Chandramaul, [1956] 1 SCR 286 a Constitution Bench of this Court considering this question observed:

"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to reply upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."

45. Again, the principle has been re-stated in Bachhaj Nahar v. Nilima Mandal & Anr., (2008) 17 SCC 491 [LQ/SC/2008/1958] , [SCC.p.498 to 499 para 17] wherein the Apex Court has enunciated thus:

"17. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo moto."

46. In the case in hand, the defendant did not raise the question of non-compliance of the provision of Order VII Rule 17 of CPC even at the stage of argument which could have been raised being covered with the Issue No.I, whether the suit is maintainable, and further, in deciding the Issue No.I, the trial court categorically observed that the defendant could not raise any legal point in support of this issue. Here, applying the aforesaid principle, I find force in the submission of learned counsel for the plaintiff-respondent that the trial Court has committed serious error to make out a new case of his own where the defendant never complained of non-compliance of provision of order VII Rule 17 CPC at any stage in course of the proceeding of the suit.

47. The procedures are made to facilitate justice and further its ends. I may profitably refer an illuminating and perennially relevant passage from the judgment of Vivian Bose , J. in Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal Baya, 1955 (2) SCR.1 [at page 8].

"Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done both sides) lest the very means designed for the furtherance of justice be used to frustrate it."

48. Before amendment being made in the Code of Civil Procedure by Act 22 of 2002, w.e.f. 01.07.2002 there was provision as Order VII Rule 18 which dealt with "Inadmissibility of document not produced when plaint filed". This provision has been repealed by the Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002 Sec 8 w.e.f. 01.07.2002).The said provision reads as under:

"18. Inadmissibility of document not produced when plaint filed.-- (1) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(2) Nothing in this rule applies to documents produced for cross-examination of the defendants witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory."

49. A significant aspect, I feel it to be discussed in the context of this nature of case, though, not argued by any of the counsels in the present appeal is that whether Order VII Rule 17 of CPC can be held to be mandatory or directory in nature in view of the amendment of the CPC, and particularly after repealing of Order VII Rule 18 CPC.

50. I may profitably refer a decision in Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors. Reported in (2006) 1 SCC 46 [LQ/SC/2005/1190] wherein the Apex Court at Para 7 has observed as under:

"7. The Code of Civil Procedure enacted in 1908 consolidated and amended the laws relating to the procedure of the Courts of Civil Judicature. It has undergone several amendments by several Acts of Central and State Legislatures. Under Section 122 CPC the High Courts have power to amend by rules, the procedure laid down in the Orders. In exercise of these powers various amendments have been made in the orders by various High Courts. Amendments have also been made keeping in view recommendations of Law Commission. Anxiety of Parliament as evident from the amendments is to secure an early and expeditious disposal of civil suits and proceedings without sacrificing the fairness of trial and the principles of natural justice in-built in any sustainable procedure. The Statement of Objects and Reasons for enacting Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) (in short the 1976 Amendment Act) highlights following basic considerations in enacting the amendments:-

(i) that a litigant should get a fair trial in accordance with the accepted principles of natural justice;

(ii) that every effort should be made to expedite the disposal of civil suits and proceedings, so that justice may not be delayed;

(iii) that the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community who do not have the means to engage a pleader to defend their cases."

51. By Act 46 of 1999 the text of Order VII Rule 14 of CPC was sought to be substituted to the effect that "where a plaintiff sues upon a document or relies upon a document in his possession or power in support of his claim, he shall enter such document in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint."

52. Significant enough, before amendment of CPC in 2002, Rule 18 of Order VII, which dealt with the inadmissibility of document not produced when plaint filed was repealed by the Code of Civil Procedure (amendment) Act, 2002 (22 of 2002 w.e.f. 01.07.2002). In my considered view, the legislature intended to repeal this provision only with the object and purpose to achieve that a litigant should get a fair trial in accordance with the accepted principles of natural justice.

53. Keeping the "statements and objects and reasons" 1976 Amendment Act in mind, the legislature wanted to ensure a fair deal to the parties to the suit and not to infringe the right of an honest litigant in the dispensation of justice and that is why the procedural law, unless otherwise strictly provides, is directory and not mandatory, cumulative effect of which Order VII Rule 17 of CPC is directory. I may gainfully place reliance upon the decision of Shaikh Salim Haji (supra) and Sardar Amarjit Singh Kalra v. Promode Gupta & Ors., reported in (2003) 3 SCC 272 [LQ/SC/2002/1331] .

54. In Sardar Amarjit Singh Kalra (supra), it has been held to the following effect -- "Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even in adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice."

55. In Shaikh Salim Haji (supra), the Honble Apex Court while dealing with the provision of Order VIII Rule 1 of CPC, contemplating filing of written statement within the time framed, held to the following effect --

"10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

11. The mortality of justice at the hands of law troubles a Judges conscience and points an angry interrogation at the law reformer.

12. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. - Justice is the goal of jurisprudence - processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774 [LQ/SC/1975/122] ).

13. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth v. Blyth (1966) 1 All E.R. 524. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath and Anr. v. Rajesh and Ors. (AIR 1998 SC 1827 [LQ/SC/1998/452] ).

14. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice."

56. Further, the Apex Court in Shaikh Salim Haji (supra) has held that whether a particular provision is mandatory or directory, it has to be determined having regard to the object the legislature sought to be achieved. The Apex Court in Para 16 has observed thus:

"16. Challenge to the Constitutional validity of the Amendment Act and 1999 Amendment Act was rejected by this Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India (JT 2002 9 SC 175 [LQ/SC/2002/1104] ). However to work out modalities in respect of certain provisions a Committee was constituted. After receipt of Committees report the matter was considered by a three-Judge Bench in Salem Advocate Bar Association v. Union of India JT (2005) 6 SC 486 [LQ/SC/2005/750] . As regards Order 8 Rule 1 the Committees report is as follows: (SCC pp.362-63, paras 15-18)

"15. The question is whether the Court has any power or jurisdiction to extend the period beyond 90 days. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order 8 Rule 1. The point for consideration is whether the provision providing for maximum period of ninety days is mandatory and, therefore, the Court is altogether powerless to extend the time even in an exceptionally hard case.

16. It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order 8 Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view.

17. In Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board, Rampur [AIR 1965 SC 895 [LQ/SC/1964/300] ], a Constitution Bench of this Court held that the question whether a particular provision is mandatory or directory cannot be resolved by laying down any general rule and it would depend upon the facts of each case and for that purpose the object of the statute in making out the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.

18. In Sangram Singh v. Election Tribunal Kotah & Anr. [AIR 1955 SC 425 [LQ/SC/1955/27] ], considering the provisions of the Code dealing with the trial of the suits, it was opined that:

"Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a Penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle." (emphasis in original)

57. In the light of the aforestated judgments wherein it has been held that the procedure is handmaid and not the mistress, the lubricant, not a resistant in the administration of justice and the plaintiff cannot be denied an opportunity of participating in the justice only because the original books of accounts relating to the business and financial transactions made between the plaintiff and the defendant were not produced along with the plaint. Being the original copy of the account books not produced along with the plaint at the time of filing of the suit, in my view, no right of the defendant has been infringed. Further, no prejudice was also caused to the defendant. As I observed in the preceeding paragraphs that the plaint of the plaintiff contains the list of documents the photocopies of which were also filed along with the plaint. The defendant also did get the opportunities to lodge any objections or he had the right to ask for the original copies before or at the time of filing written statement if he felt that non furnishing of the original copies of those documents caused any prejudice to him.

58. In the present case, it is manifest that the defendant even did not raise any objection to the production of the original copies of the account books at the time of adducing evidence by the plaintiff and even he has unequivocally admitted the document at the time of his cross-examination and identified his signatures against the respective entries entered in the said statement without raising any objection or doubting any of the entries. So, all reasonable opportunities being afforded, the requirements of doctrine of natural justice are meted out.

59. Thus, in my view, the rules of procedure is such a rule which always subservient to and is in aid of justice. It is not to be a tyrant but a servant, not an obstruction but an aid of justice. Therefore, substantive right of the plaintiff to recover the amount due cannot be defeated on the basis of procedure which is prescribed only to advance the cause of justice. Further, repealing of provision of Rule 18 of Order VII makes it more clear that the legislature wanted to remove the stringency of this provision and thus diluted the same in the process of administration of justice. However, I should say that all litigants should comply the rules of procedure prescribed in the Code to render justice equitably and to avoid complicacy in the process of continuation of the suit and disposal of the same at the earliest.

60. Furthermore, I should say, in the context of the present case that a duty also casts upon the Court to bring it to the notice of the parties if there is any procedural lapses required for the purpose so that it can be cured immediately after its detection following the maxim of equity, namely actus curiae neminem gravabit which speaks about that an act of Court shall not cause any prejudice to any litigant. In the perspective of the present case, in my opinion, the aforesaid doctrine is squarely applicable to the decision of the present appeal. In the case in hand, the trial Court at the very outset would have brought to the notice of the plaintiff and ask for original copies of the shop-books at the time of filing of the plaint, which, the learned Judge did not do that ought to have been done by him.

61. Lastly, I stand to be clarified that procedural law enacted in the Code is a complete guide to the administration of justice which everyone should follow keeping in mind the legislative object, the legislature wanted to achieve in the process of fair trial and render justice equitably.

62. In view thereof, the present second appeal does not deserve any merit and, is accordingly, dismissed. However, the parties to the suit shall bear their own respective costs.