Certified Copies Of Public Records Not In Party's 'Power Or Possession' Until Actually Obtained; Leave Not Required For Rebuttal Documents: AP High Court

"Expression power, possession, control and custody means actual possession, power, control and custody and it cannot be deemed or constructive possession, nor that by making reasonable effort the document could be taken into power, possession, control and custody," High Court of Andhra Pradesh, in a significant ruling, held that documents which could be obtained from public authorities through reasonable effort cannot be deemed to be in the "power, possession, control or custody" of a party until they are actually obtained.

A bench comprising Justice Ravi Nath Tilhari and Justice Balaji Medamalli observed that the rigors of Order XI Rule 1 of the CPC, as amended by the Commercial Courts Act, do not apply to documents produced specifically to answer a case set up by the defendant subsequent to the filing of the plaint.

The Court emphasized that the procedural limitations on filing additional documents in commercial suits are not intended to be a "tyrant" but a "servant" to the cause of justice.

The petitioners (plaintiffs) filed a Commercial Original Suit (COS) for specific performance of an oral agreement dated September 28, 2015, involving a large tract of land. After the defendants filed their written statement raising specific disputes regarding the total sale consideration paid and the extent of land transferred, the plaintiffs sought leave via I.A. No. 271 of 2025 to produce 133 additional documents. These included certified copies of sale deeds, Gram Panchayat resolutions, and official challans for land conversion.

The Special Judge for Commercial Disputes at Visakhapatnam rejected the application, holding that the documents were of a date prior to the suit and could have been obtained by the plaintiffs with reasonable effort. The trial court concluded that such documents were within the "power and custody" of the petitioners.

The primary question before the court was whether the learned Special Judge erred in law by rejecting the application for leave to file documents under Order XI Rule 1 CPC. The court was also called upon to determine whether documents that could be obtained from public domain are considered to be in the "power or custody" of a party before they are actually received.

Distinction Between Actual And Constructive Possession Of Documents

The High Court disagreed with the trial court’s finding that because documents were in the public domain, they were within the plaintiffs' power or custody. The bench clarified that the date of a document being prior to the suit does not automatically place it in the "power, possession, control or custody" of a party at the time of filing the suit.

The bench noted that the expression "power, possession, control and custody" must be interpreted as actual possession rather than deemed or constructive possession. The judges observed that the trial court's logic—that documents could have been obtained with reasonable effort—cannot be sustained under the strict language of the Commercial Courts Act.

"The expression power, possession, control and custody means actual possession... and it cannot be deemed or constructive possession."

Applicability Of Order XI Rule 1(1)(c) To Rebuttal Documents

The Court delved into the statutory exclusion provided under Order XI Rule 1(1)(c)(ii) of the CPC. This provision states that the strict disclosure requirements do not apply to documents produced by the plaintiff in answer to any case set up by the defendant subsequent to the filing of the plaint. The bench found that the need to file the certified copies arose directly from the specific denials and pleas taken by the defendants in their written statement regarding sale consideration.

The bench rejected the respondents' argument that this exclusion only applies to sub-rule (1) and not to the leave requirement under sub-rule (5). The Court held that when the statute uses the phrase "this rule," it refers to Rule 1 in its entirety.

"Exclusion or non-applicability of rule 1, is for rule 1 as a whole and not for any particular sub-rule only, but for all the sub-rules as a whole."

No Requirement Of Leave For Documents Answering Defendant's Case

The Court observed that if a document is required to meet a case set up by the defendant, the rigors of pleading "reasonable cause" for non-disclosure under sub-rule (5) do not apply. Since the disclosure was not required at the initial stage due to the statutory exception, the question of establishing a cause for non-disclosure does not arise.

The bench relied on the Delhi High Court's precedent in Bennett Coleman & Co. Ltd. v. ARG Outlier Media Pvt. Ltd., which held that even if documents were available in the public domain, the need to file them might only arise after the defendant's stand is made clear in the pleadings.

"Even if the said documents were available in public domain at the time of filing of the suit, the need for filing the aforesaid documents arose only on account of the stand taken by the defendants."

Procedure As The Handmaid Of Justice

Reiterating long-standing judicial principles, the High Court emphasized that procedural and technical hurdles should not be allowed to impede substantial justice. While acknowledging the need for expeditious disposal of commercial disputes, the bench held that procedural law cannot be allowed to override substantive rights.

The Court noted that litigation is a "journey towards truth," and the court must take steps to thrash out the underlying facts of a dispute rather than being blinded by procedural violations that do not cause grave prejudice to the adversary.

"Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice."

Admissibility Of Secondary Evidence

Addressing the respondents' concern that certified copies are secondary evidence and must satisfy Section 65 of the Indian Evidence Act, the Court held that this is a matter for the trial stage. The High Court clarified that while the documents are being taken on record now, the respondents are free to raise objections regarding their admissibility or the mode of proof during the trial.

The Court concluded that the Trial Court committed a legal error by shutting out relevant evidence at the threshold based on an incorrect interpretation of "power and custody."

The High Court allowed the Civil Revision Petition and set aside the order dated February 4, 2026. The Special Judge was directed to take the documents on record, subject to their admissibility being tested during the trial. The ruling reinforces that the Commercial Courts Act, while aiming for speed, does not intend to penalize parties for not producing documents that only became relevant after the defense was disclosed.

Date of Decision: 07 May 2026