MANU/AP/0265/2022

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

Civil Revision Petition Nos. 949 and 1317 of 2021
Decided On: 07.02.2022
Appellants: Vijaya Municipal Corporation
Vs.
Respondent: Vensar Constructions Company Ltd.
Hon'ble Judges/Coram:
C. Praveen Kumar and Dr. K. Manmadha Rao, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: M. Manohar Reddy, SC for Munc and Munc Corp.
For Respondents/Defendant: P. Raja Sripathi Rao, Advocate
ORDER
C. Praveen Kumar, J.
1. Challenging the Orders, dated 05.08.2021 in I.A. No. 53 of 2021 in C.O.S. No. 17 of
2020; and in I.A. No. 79 of 2021 in C.O.S. No. 18 of 2020, dated 07.10.2021, passed
by learned Special Judge for Trial and Disposal of Commercial Disputes,
Ibrahimpatnam, Vijayawada, wherein the application filed by the petitioner herein under
Order XI, Rule 1(5) of Code of Civil Procedure, 1908 [for short, "C.P.C."] as amended
by the Commercial Courts Act, 2015, to receive the documents for the purpose of
marking them as exhibits, was dismissed, the present Civil Revision Petitions are filed.
2. Since the issue involved in both the Civil Revision Petitions is one and the same, they
are disposed of by this common order.
3 . The facts, which lead to filing of C.R.P. No. 949 of 2021 under Article 227 of the
Constitution of India, are as under:-
(i) The Revision Petitioner is the Vijayawada Municipal Corporation represented
by its Commissioner. The respondent herein filed a Claim Suit vide C.O.S. No.
07 of 2020 against the Vijayawada Municipal Corporation [hereinafter referred
to as "Revision Petitioner"]. The Revision Petitioner also filed a suit vide C.O.S.
No. 17 of 2020 against the respondent herein is seeking a direction to the
defendant (a) to pay a sum of Rs. 4,42,50,677.40 ps. towards damages (b) to
pay interest on the said amount at 18% per annum from the date of filing of the
suit.
(ii) The respondent herein filed O.S. No. 1182 of 2015 seeking permanent
injunction against the Revision Petitioner and others with regard to inviting
tenders for completion of the works under all the eight packages. In the said
suit, I.A. No. 1281 of 2015 came to be filed by the respondent herein for
temporary injunction, restraining the Revision Petitioner, their agents and men
from filing tenders as per its notification, dated 10.11.2015. After considering
all the documents, the Principal Senior Civil Judge, Vijayawada dismissed the
request of the respondent herein.

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 (iii) Challenging the same, the respondent herein preferred C.M.A. No. 02 of
2016 before the Court of V Additional District Judge, Vijayawada. After hearing
all the concerned, the V Additional District Judge, dismissed the said C.M.A. on
04.04.2016. Challenging the same, the respondent herein preferred C.R.P. No.
2386 of 2016 before the Hon'ble High Court, which was also dismissed vide
order, dated 10.06.2016 confirming the order of the District Court. Thereafter,
the Revision Petitioner filed I.A. No. 37 of 2021 in C.O.S. No. 17 of 2020 before
the Commercial Court to receive the documents. A memo was also filed on
07.07.2021, not pressing the said application and the same was dismissed as
not pressed.
(iv) Thereafter, the Revision Petitioner filed an application for receiving the
certified copies of the orders passed in O.S. No. 1182 of 2015 on the file of
Principal Senior Civil Judge's Court, Vijayawada and V Additional District Court,
Vijayawada, along with the order copy in C.R.P. No. 2386 of 2016 which was
downloaded from e-Courts Services. It is said that as these documents are very
much essential to the case, to resolve the claim.
4. A counter came to be filed stating that the Corporation filed the suit represented by
its Commissioner and the verification was also done by the Commissioner of the
Corporation, but strangely Chief Engineer filed an application without any authority. It
is further pleaded in the counter that the plaintiff failed to give reasons and state as to
when the certified copies were obtained and when the application was made to receive
the said documents in C.O.S. No. 18 of 2020.
(i) It is further pleaded in the counter that the earlier application was dismissed
as withdrawn and without the leave of the Court to file no subsequent
application for the same relief, can be entertained. It is further contended that
under Order XI, Rule 1(5) of C.P.C., the petitioner could not be permitted to file
the present application, more so, when P.W. 1 was already cross-examined
without reference to documents which are now sought to be produced before
the Court. It is further pleaded that the plaintiff failed to express the difficulty
in filing the documents along with the plaint though they were in his custody
right from the inception of the contract.
5 . After considering the rival submissions, the Commercial Court dismissed the
application. Challenging the same, the present Civil Revision Petition No. 949 of 2021 is
filed.
6. Insofar as C.R.P. No. 1317 of 2021 is concerned:-
(i) The Revision Petitioner is the Vijayawada Municipal Corporation represented
by its Commissioner. The respondent herein filed a Claim Suit vide C.O.S. No.
08 of 2020 against the Revision Petitioner. The Revision Petitioner also filed a
suit vide C.O.S. No. 18 of 2020 against the respondent herein seeking a
direction to the defendant (a) to pay a sum of Rs. 4,55,35,725.64 ps. towards
damages; (b) to pay a sum of Rs. 47,05,116/- being the balance mobilization
advance amount; (c) to pay subsequent interest on the amount of Rs.
4,55,35,725.64 ps. at 18% per annum from the date of filing of the suit and (d)
to pay subsequent interest on the amount of Rs. 47,05,116/- at 18% per annum
from the date of filing of the suit.
(ii) The respondent herein failed to complete the tender works within the
stipulated time and the plaintiff Corporation issued notices on 15.06.2013,

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 28.06.2013, 08.08.2013, 23.10.2013 and 25.04.2015 to the respondent herein
demanding to complete the works. Though, the period of contract is extended
up to 31.03.2013, the respondent failed to complete the works and finally on
29.06.2015 the Revision Petitioner terminated the contract of the respondent.
(iii) In respect of Package-5, the respondent is said to have stopped
construction since October, 2012. Having no other go, the Revision Petitioner
determined the contracts in respect of Package-5. After termination of the
contract of the respondent, the Revision Petitioner issued tender notification
inviting the bids for completion of the balance works under all the 8 packages.
In view of the bad publicity made by the respondent in respect of the packages
4 and 5, there was no response to the said tender notifications.
(iv) The Revision Petitioner filed Photostat copy of paper publications along
with the plaint, and the attested paper publications dated 18.05.2010 and
10.03.2016 along with 'insertion certificates' issued by the concerned. The
Revision Petitioner withdrew I.A. No. 38 of 2021, which was dismissed as
withdrawn on 09.07.2021 due to hyper technicalities involved in the affidavit
and petition. Later, the Revision Petitioner filed an application with a prayer to
receive the documents i.e., attested copies of the paper publications for the
purpose of marking the same on behalf of the Revision Petitioner as they are
crucial and important documents.
7 . A counter came to be filed stating that the Revision Petitioner filed the suit as a
counter blast to the suit filed by the respondent herein in COS. No. 08 of 2020 claiming
damages. The Revision Petitioner examined P.W. 1 in the joint trial, who gave evidence
without reference to the documents now sought to be produced and the Revision
Petitioner did not explain the reasons for non-filing of the original documents along
with the suit. It is said that the Revision Petitioner did not file the documents and also
failed to file the mandatory declaration though the documents were in his custody and
possession from the date of publication of the tender. It is urged that Order XI, Rule
1(5) CPC mandates that the Revision Petitioner shall not be allowed to rely on the
documents which are in Revision Petitioner's power, possession, control or custody,
except with the leave of the Court and shall be granted only upon the Revision
Petitioner establishing a reasonable cause for non-disclosure along with the plaint. The
plaint shall also contain a declaration on oath that all the documents were disclosed and
that the Revision Petitioner did not file such statement of truth.
8 . After considering the rival submissions, the Commercial Court dismissed the
application. Challenging the same, the present Civil Revision Petition No. 1317 of 2021
is filed.
9 . Sri Santosh Reddy, learned counsel representing Sri M. Manohar Reddy, learned
Standing Counsel for the Revision Petitioner, would submit that no prejudice would be
caused to the respondent if these documents are brought on record since these are all
certified copies of the orders passed by this Court, which were referred to in the plaint
and copies of the same were also filed along with the plaint. He further submits that the
Court below totally erred in dismissing the application in spite of agreeing with the
argument of the petitioner that filing of a second application is not illegal or incorrect.
He relied upon a judgment of a learned Single Judge of erstwhile High Court of Andhra
Pradesh at Hyderabad in CRP. No. 639 of 2018 in support of his plea.
10. On the other hand, Sri P. Raja Sripathi Rao, learned counsel for the respondent

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opposed the same, contending that in view of the provisions of Commercial Court Act
vis-à-vis the provisions of C.P.C., the trial Court was right in rejecting the application of
the Revision Petitioner. It is further urged that along with the plaint, photostat copies of
certified copies of these documents are already filed, and as such, filing of these
documents again does not serve the purpose. It is further pleaded that no reasons are
given for not producing those documents along with the plaint, more so, when the said
documents were with the Revision Petitioner.
11. The point that arises for consideration is, whether the Revision Petitioner is entitled
for the leave of the Court to receive the documents filed along with the application as
required under Order XI, Rule 1(5) of C.P.C.?
1 2 . The list of documents which are sought to be marked now i.e., after the
commencement of trial, are as under:

13. Along with the plaint, the Revision Petitioner filed 28 documents in C.O.S. No. 18 of
2020 in which, relevant documents, are as under:

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1 4 . Insofar as the first submission namely as to whether the Chief Engineer,
Vijayawada Municipal Corporation was authorized to represent the case, the trial Court
gave a categorical finding that he sought leave of the Court before filing the said
application which was allowed vide Order, dated 16.03.2021 in I.A. No. 11 of 2021.
1 5 . Coming to the second issue namely as to whether the Revision Petitioner was
estopped from filing the second application when its earlier application was withdrawn,
the trial Court in paragraph 6.6 of the order, after referring to the judgment on the
subjects observed that the order dismissing the petition as withdrawn does not operate
as estoppel since it was not on merits.
16. Insofar as the marking of the documents as sought for by the Revision Petitioner is
concerned, as required under Order XI, Rule 1(1) C.P.C., the Revision Petitioner shall
file all its documents in its power, possession and control or custody along with the
plaint by furnishing a list as required under Order XI, Rule 1(2) C.P.C. and a declaration
shall also be filed in terms of Order XI, Rule 1(3) C.P.C. Further, as per Order, 11, Rule
1(5) of C.P.C., the Revision Petitioner shall not be allowed to rely on those documents
which were not disclosed with the plaint except with the leave of the Court. It is the
case of the Revision Petitioner that he filed certified copies in C.O.S. No. 18 of 2020 and
only filed the copies of the documents along with the plaint in other case.
17. A perusal of the record would show that the Revision Petitioner filed attested copy
of e-procurement tender and also filed original short tender notification published in the
News Paper along with the application. The Revision Petitioner did not assign any
reasons for not filing of document No. 1 along with the plaint. Insofar as the documents
2 to 6 are concerned, they are certified copies of plaint, written statement, order in I.A.
No. 1281 of 2015, order in I.A. No. 1310 of 2015 and objections filed in I.A. No. 1282
of 2015 on the file of Principal Senior Civil Judge's Court, Vijayawada. The trial Court
categorically held that the certified copies of the very same documents were filed along
with the plaint as documents 13 to 17. Insofar as the documents 7 and 8 are concerned,
they are Photostat copies of certified copies of the order and decretal order in C.M.A.
No. 2 of 2016 and downloaded copy of the order in CRP. No. 2386 of 2016. These two
documents were neither filed along with the plaint nor copies, were enclosed. Hence,
those two documents would be inadmissible in evidence, for want of certified copies.
18. Infact, interpretation of Order XI, Rule 1(5) C.P.C. came up for consideration before
the Hon'ble Supreme Court in Sudhir Kumar alias S. Baliyan vs. Vinay Kumar G.B.
MANU/SC/0650/2021 : AIR 2021 SC 4303, After referring to Order XI, which deals with
disclosure, discovery and inspection of documents in suits before the Commercial
division of a High Court or a Commercial Court, the Court held as under:

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 7.2. xxxxx Therefore, as such the plaintiff applied the wrong provision seeking
leave of the court to place on record the additional documents. However,
considering the fact that thereafter, both the learned Commercial Court as well
as the High Court treated and considered and even applied Order XI Rule 1 of
the CPC as amended by the Commercial Court Act and as applicable to the suits
filed before the commercial division, commercial court, we proceed to consider
the application submitted by the appellant herein-original plaintiff, as if the
same was submitted under Order XI Rule 1 (4) of the CPC.
19. Similarly, in Para 7.3 of the said judgment, the Court categorically held that Order
XI, Rule 1 of CPC as applicable to the commercial suits mandates the Revision Petitioner
to file a list of all the documents, photocopies of all the documents, in its power,
possession, control or custody, pertaining to the suit, along with the plaint and the
procedure provided under Order XI, Rule 1 is required to be followed by the Revision
Petitioner and the respondent, when the suit is a commercial suit. Referring to Order XI,
Rule 1(3) CPC, it has been held that the said provision mandates that the plaint shall
contain a declaration on oath from the Revision Petitioner that all documents in the
power, possession, control or custody of the Revision Petitioner, pertaining to the facts
and circumstances of the proceedings initiated by him have been disclosed and copies
thereof annexed to the plaint. Ergo, under Order XI, Rule 1(3) of CPC, a declaration on
oath under this sub-rule shall be made in the Statement of Truth set out in the
Appendix, which shall form part of the plaint.
20. The additional documents can be permitted to bring on record with the leave of the
Court, as provided under Order XI, Rule 1(4) of CPC.
21. A reading of Rule 1(4) CPC postulates that:
"In case of urgent filings, the plaintiff may seek leave to rely on additional
documents, as part of the above declaration on oath and subject to grant of
such leave by Court, the plaintiff shall file such additional documents in Court,
within thirty days of filing the suit, along with a declaration on oath that the
plaintiff has produced all documents in its power, possession, control or
custody, pertaining to the facts and circumstances of the proceedings initiate by
the plaintiff and that the plaintiff does not have any other documents, in its
power, possession, control or custody.
2 2 . As observed by us earlier, the Revision Petitioner shall rely on the documents
except with the leave of the Court and such leave can be granted only upon the Revision
Petitioner establishing reasonable cause for non-disclosure along with plaint. The
Hon'ble Supreme Court [cited supra] in para 7.5 & 7.6 of the above case observed, as
under:-
"7.5. Order XI Rule 1(5) further provides that the plaintiff shall not be allowed
to rely on documents, which were in the plaintiff's power, possession, control
or custody and not disclosed along with plaint or within the extended period set
out above, save and except by leave of Court and such leave shall be granted
only upon the plaintiff establishing reasonable cause for non-disclosure along
with the plaint. Therefore, on combined reading of Order XI Rule 1(4) read with
Order XI Rule 1 (5), it emerges that (i) in case of urgent filings the plaintiff
may seek leave to rely on additional documents; (ii) within thirty days of filing
of the suit; (iii) making out a reasonable cause for non-disclosure along with
plaint.

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 7.6. Therefore a further thirty days time is provided to the plaintiff to place on
record or file such additional documents in court and a declaration on oath is
required to be filed by the plaintiff as was required as per Order XI Rule 1(3) if
for any reasonable cause for non-disclosure along with the plaint, the
documents, which were in the plaintiff's power, possession, control or custody
and not disclosed along with plaint. Therefore plaintiff has to satisfy and
establish reasonable cause for non-disclosure along with plaint. However, at the
same time, the requirement of establishing the reasonable cause for non-
disclosure of the documents along with the plaint shall not be applicable if it is
averred and it is the case of the plaintiff that those documents have been found
subsequently and in fact were not in the plaintiff's power, possession, control
or custody at the time when the plaint was filed. Therefore Order XI Rule 1(4)
and Order XI Rule 1(5) applicable to the commercial suit shall be applicable
only with respect to the documents which were in plaintiff's power, possession,
control or custody and not disclosed along with plaint. Therefore, the rigour of
establishing the reasonable cause in non-disclosure along with plaint may not
arise in the case where the additional documents sought to be produced/relied
upon are discovered subsequent to the filing of the plaint."
2 3 . In the instant case, admittedly, there is no declaration on oath enclosed to the
plaint. No reasons are stated even in the plaint as to why the Document No. 1 could not
be filed along with the plaint. Since tender was published in the News Paper and e-
procurement tender was also issued in the instant case, the Revision Petitioner though
filed e-procurement tender along with the plaint, but failed to file document No. 1,
which was short tender notice published in News Paper. Since the documents, which are
in its power, possession, control and custody at the time of filing of suit, are not
presented along with the plaint, as required under Order XI, Rule 1(1) CPC; in the
absence of any declaration to that effect and the affidavit given now, by the Chief
Engineer is bereft of any reasons; and having regard to the amendments to the C.P.C.,
vis-à-vis the Commercial Courts Act, 2015 incorporating under Order XI, Rule 1(5) CPC,
we see no grounds to interfere with the order.
24. Accordingly, the Civil Revision Petitions are dismissed. There shall be no order as
to costs in both the petitions.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
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