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2009 DIGILAW 853 (AP)

J. Munirathnam @ Untaiah v. J. Krishna Reddy

2009-11-27

V.ESWARAIAH

body2009
Judgment : 1. This Civil Revision Petition is filed against the order, dated 09-07-2009, made in I.A. No. 1868 of 2008 in I.A. NO. 1007 of 2008 in O.S. No. 641 of 1996 on the file of the Principal Junior Judge, Tirupati. 2. The petitioner herein filed the said application under Order VIII Rule 3 read with Section 151 CPC to permit him to file the documents mentioned therein, receive and admit the same in support of the said application, the petitioner filed an affidavit stating that he has filed an application to set aside the ex-parte decree passed against him in O.S. No. 641 of 1996 vide judgment and decree, dated 12-03-1997, by the Principal District Munsif, Tirupati. He has also filed an application to condone the delay in filing a petition to set aside the ex-parte decree and, therefore, he wanted to file the said documents and accordingly, he sought permission to file the said documents. 3. The said petition was filed under Order VIII Rule 3 CPC. Order VIII relates to written statement, set-off and counter claim. The suit itself has been decreed preliminarily by judgment and decree, dated 12-03-1997. Therefore, it cannot be said that the suit is pending. The suit is pending only for the purpose of passing final decree. If that be so, I am of the opinion that none of the provisions under Order VIII are applicable to the case on hand Further, Order VIII Rule 3 CPC relates to specific denial of the averments in the plant. Therefore, the said application filed by the petitioner is not maintainable and the same is liable to be dismissed. 4. Now, the learned counsel for the petitioner submits that correct provision traceable is Order VIII Rule 1A (3) of CPC. 5. Order VIII Rule 1A CPC reads as follows:- 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. 6. I am of the opinion that Order VIII Rule 1A (3) of CPC does not apply to the case on hand, as the suit has already been decreed preliminarily. Therefore, the civil revision petition is devoid of any merit and the same is liable to be dismissed. 7. Accordingly, the Civil Revision Petition is dismissed. However, it is open to the petitioner to file appropriate application before the court below. There shall be no order as to costs.