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2007 DIGILAW 722 (PAT)

Dukhan Rai v. Mahendra Raj

2007-04-10

CHANDRAMAULI KR.PRASAD

body2007
Judgment Chandramauli Kr.Prasad, J. 1. Defendants-petitioners, aggrieved by that portion of the order dated 15.9.2005 passed by the Subordinate Judge, Second, Patna in Title Partition Suit no. 376 of 2000, whereby it declined to take certain documents on record, have preferred this application. 2. Short facts giving rise to the present application are that the plaintiffs-Opposite patty nos.1 to 4 filed the suit for partition of the joint family property. In the suit they filed application for grant of injunction under Order XXXIX Rule i of the Code of Civil Procedure. Defendants-petitioners filed show cause and also filed photostat copy of the documents on 28.9. 2000 and 16.1.2001. Plaintiffs prayer for injunction was rejected by order dated 21.2.2001. Issues were settled by order dated 13.3.2002 and the party were directed to file their documents. It seems that thereafter the suit was dismissed for default by order dated 10.10.2002 and ultimately restored by order dated 29.12.2004. 3. Plaintiffs alongwith the list of documents filed documents on 3.3.2005 and their evidence commenced from 2.6.2005. Defendants-petitioners alongwith the list of documents filed the documents which included documents whereof photostat copies were filed earlier. Plaintiffs objected to their admission. Defendants-petitioners then filed application on 30.8.2005 for grant of leave to take the documents in evidence. 4. By reason of the impugned order though documents whereof photostat copies were filed earlier have been taken in evidence but the other documents not taken in evidence. While doing so, it observed that since Order XVIII Rule 17A of the Code of Civil Procedure, hereinafter referred to as the Code, has been omitted by Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999), there is no scope for production of such documents at the stage of trial, not disclosed at the time of presenting written statement or before settlement of issue. 5. Mr. Prem Kumar Verma. appearing on behalf of the petitioners submits that Order XVIII Rule 17A of the Code has been omitted but despite that the Court is possessed of the power to receive documents in evidence at a later stage also. In this connection he has referred to the provisions of Order VIII Rule 1-A of the Code of Civil Procedure, particularly sub-rule (3). 6. Mr. In this connection he has referred to the provisions of Order VIII Rule 1-A of the Code of Civil Procedure, particularly sub-rule (3). 6. Mr. Dronacharya, appearing on behalf of the Opposite party, however, contends that once the provision of Order XVIII Rule 17A has been omixted, the Court below rightly did not receive in evidence the documents filed at the later stage. 7. It is relevant here to state that Order XVIII Rule 17A of the Code has been omitted by Sec.27(iii) of the Code of Civil Procedure (Amendment) Act, 1999. Simultaneously Order VIII Rule 1-A was substituted by Sec.18(ii) of the said Amendment Act. Further by Section 9(ii) of the Code of Civil Procedure (Amendment) Act, 2002, for sub-rule (3) of Rule 1-A of Order VIII inserted earlier was substituted. All these amendments have been made effective from 1.7.2002. As a result of all these amendments Order VIII Rule 1-A of the Code now exists as follows: "1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him. (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the defendant under this rule, but is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule shall apply to documents (a) produced for the cross-examination of the plaintiffs witnesses, or (b) handed over to a witness merely to refresh his memory." 8. (4) Nothing in this rule shall apply to documents (a) produced for the cross-examination of the plaintiffs witnesses, or (b) handed over to a witness merely to refresh his memory." 8. From a plain reading of the aforesaid provision, it is evident that where defendant bases his defence upon a document or relies upon any document in his possession or power, in support of its case, he is required to enter such document in a list, and produce it when the written statement is presented by him and deliver document and copy thereof with the written statement. Sub-rule (3) of Rule 1-A of Order VIII, inter alia provides that a document which ought to be produced in Court by the defendant under sub-rule (1) shall not without the leave of the Court, be received in evidence at the hearing of the suit. Power to grant leave having been conferred, it is obvious that discretion has been conferred on the Court to receive in evidence such documents, not produced in terms of sub-rule (1) of Rule 1-A of Order VIII of the Code. Hence it cannot be said that in no circumstance the documents on behalf of the defendants can be received at the hearing of the suit. Deletion of Order XVIII Rule 17A of the Code of Civil Procedure does not bar production of evidence at a later stage. In my opinion, the Court has inbuilt power to permit party to produce evidence, not known to them earlier or which could not be produced in spite of due diligence. Court, on its satisfaction that after exercise of due diligence, the evidence was not within the knowledge of the party or could not be produced may permit leading of such evidence at a later stage on such conditions as may appear to be just. This power which is inbuilt has expressly been conferred under Order VIII Rule 1-A(3) of the Code of Civil Procedure. 9. Bearing in mind the principle aforesaid when I proceed to examine the facts of the present case, I am of the opinion that the court below did not err in rejecting the prayer of the petitioners. It is not the case of the defendants that the documents which were produced later on were not known to them earlier or were not produced in spite of due diligence. It is not the case of the defendants that the documents which were produced later on were not known to them earlier or were not produced in spite of due diligence. The court below has held that the defendants have not shown good cause for non-production of the documents earlier given in the second list of documents. The aforesaid conclusion does not suffer from any error and hence the order impugned is not fit to be interfered with by this Court in exercise of its revisional jurisdiction. 10. Thus the petitioners succeed in law but fail on fact. 11. In the result, I do not find any merit in the application and it is dismissed accordingly, but no order as to costs.