Mukta Gupta JUDGMENT
Mukta Gupta, J.
1. Plaintiff filed the present suit seeking a decree for a sum of ` 1,48,39,218/- along with interest pendent lite and future. Claim of the plaintiff in the suit is that the defendant placed a purchase order with the plaintiff on 25th March, 2004 for manufacturing and supplying of 25000 gear sets at the price of ` 4,000/- per set to be supplied as per specific designs and specification. The plaintiff acting on the purchase order invested a sum of ` 40 lakhs towards the manufacturing of the tooling as per their designs and specifications and regularly dispatched the gear sets. The total cost of the gear sets supplied by the plaintiff to the defendant was ` 3,40,88,000/-, however the defendants only made payment of ` 2,56,73,000/- along with the sum of ` 5,43,000/-. Besides the balance outstanding of ` 78,72,000/- defendants were also liable to pay a sum of ` 71,03,000/- as cost of inventory material and finished goods. Since the defendants failed to make the payment along with the interest and simultaneously to lift material from the premises of the plaintiff and also took back the toolings for the unamortized amount of ` 21,57,000/-, the plaintiff sent a legal notice dated 9th July, 2009 followed by another notice dated 20th August, 2009 however neither a reply nor any payment was received.
2. Pursuant to the completion of pleadings plaintiffs witness PW-1 entered appearance and tendered his evidence by way of affidavit. During the cross-examination of PW-1 plaintiff filed affidavit of another witness without him being named in the list of witnesses and along with the affidavit of PW-2 filed number of documents without seeking leave of the Court. Hence learned counsel for the defendant objected to the validity of the affidavit of PW-2 and the additional documents filed. Faced with this situation plaintiff filed an application being IA No. 7107/2016 under Order XVIII Rule 4 CPC which was heard by the learned Joint Registrar and dismissed vide the impugned order dated 7th September, 2016. Hence, the present appeal.
3. Before filing IA No. 7107/2016 plaintiff filed IA No. 18974/2014 under Order XI Rule 14 CPC calling upon the defendants to produce the documents mentioned in Para 5 of the application which application was partly allowed.
4. Learned counsel for the defendant/respondent submits that these documents had to be filed along with the plaint and cannot be now brought on record by the plaintiff with the aid of an application under Order XVIII Rule 4 CPC. He further submits that there is no fact which has come to the knowledge of the plaintiff after the filing of the written statement of the defendant nor were the fresh documents filed along with the affidavit of PW-2 not in the possession of the plaintiff so that he was restrained from filing it along with the plaint. Even if the documents had not been filed along with the plaint the documents were required to be filed at least before the settlement of issues. The plaintiff has not rendered any plausible explanation for non-production of the documents earlier. The procedure followed by the plaintiff by introducing a new witness and exhibiting fresh documents is imp........