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2015 DIGILAW 622 (ORI)

Nilamani Nayak v. Shantilata Nayak

2015-11-13

BISWANATH RATH

body2015
JUDGMENT : Biswanath Rath, J. 1. This matter arises out of an order dated 10.4.2015 passed by the learned Civil Judge (Junior Division), Kendrapara rejecting an application under Order 8 Rule 1-A of the Code of Civil Procedure arising out of C.S. No. 72 of 2004/T.S. No. 61 of 1989. Short fact involved in the case is that the opposite party No. 1 as plaintiff filed T.S. No. 61 of 1989 in the Court of learned Sub-Judge, Kendrapara. The said suit was transferred later on to the court of learned Civil Judge (Junior Division), Kendrapara on the ground of pecuniary jurisdiction and re-numbered as C.S. No. 72 of 2004. The suit was filed for partition of the suit land in determining the share of the plaintiff at 5 paisa in 'A' schedule property and 1/4th share in 'B', 'C and 'D' schedule property. On their appearance, the defendant Nos. 4 and 5 filed their written statement on 12.1.2015. Defendant No. 5 as D.W. 5 filed evidence on affidavit along with a petition for permission for acceptance of sabik khatiana, hal khatian and parcha, which documents could not be filed along with the written statement. As certified copy of the documents could not be mentioned in the petition dated 12.1.2015, subsequently defendant No. 5 filed another petition on 15.1.2015 along with list of documents of 23 sheets. Upon hearing the petitions, the trial court by the impugned order rejected the applications at the instance of the defendant No. 5 - petitioner taking resort to the provision contained under Order 8 Rule 1-A(3) as well as Order 13 Rule 1 of the Code of Civil Procedure. 2. Learned counsel for the petitioner contends that there is a scope in bringing the documents, referred to in the written statement, even at a later stage, but with a leave of the court concerned and the petitioner by filing the applications having sought the leave of the court, the applications would have been allowed. He further contends that the lower court has failed in appreciating the legal provision contained under Order 8, Rule 1-A(3) of the Code of Civil Procedure and thereby failed to realise the scope of the provision under Order 8, Rule 1-A (3) of the Code of Civil Procedure and, thus, claimed to set aside the impugned order. He further contends that the lower court has failed in appreciating the legal provision contained under Order 8, Rule 1-A(3) of the Code of Civil Procedure and thereby failed to realise the scope of the provision under Order 8, Rule 1-A (3) of the Code of Civil Procedure and, thus, claimed to set aside the impugned order. On the other hand, Sri Muduli, learned counsel appearing for the opposite party No. 1, the plaintiff, contends that under the provision of the Code of Civil Procedure, the list of documents along with the documents ought to have been filed along with the written statement and defendant No. 5 having failed to do so, has lost his chance of filing the documents at a later stage. He further contends that in the event such an application is allowed, the plaintiff will have to recall the witnesses, as the evidence of many of the witnesses have already been closed. 3. Heard learned counsel for the parties. There is no denial at the Bar that the documents by way of applications dated 12.1.2015 and 15.1.2016 already available by way of pleadings already made by the defendant No. 5 in his written statement and there is no document outside the pleading. Now coming to the provision of law, as available under Order 8, Rule 1-A (3) of the Code of Civil Procedure, as amended in the year 2002 reads as follows:-- "Order 8 Rule 1-A: Duty of defendant to produce documents upon which relief is claimed or relied upon by him- "XXX XXX XXX (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. xxx xxx xxx" 4. On bare reading of the aforesaid provision even though the provision of Order 8, Rule 1-A(1) desires a party to file documents along with the list of document when the written statement is presented by him, but by introduction of sub paragraph-3 of the Order 8, Rule1-A, the legislatures have already intended to provide an opportunity to the parties and also to produce such document at a later stage but, however, with the leave of the Court. It is at this stage, this Court observes that as admitted by the parties, evidence of defendant No. 5 has not yet commenced. Present action has been taken only at the stage of filing of evidence on affidavit at the instance of defendant No. 5. The only impediment at this stage may be in view of introduction of document by the defendant No. 5 at such a stage the plaintiff and other defendants, who have already closed their evidence, may be debarred from having their evidence in connection with the documents sought to be introduced later on. In view of the clear intention of the legislature by incorporating the Clause-3 to the said provision, it is amply clear that there is a legislative intention to provide such opportunity even at a later stage but with the leave of the court. This Court, therefore, finds that since the evidence of defendant No. 5 has not commenced and further since the documents sought to be introduced are already borne part of the written statement, there will be no prejudice to the parties in the event such documents would be introduced and accepted at this stage and if necessary, the witnesses already closed can be recalled for the purpose. It is in this view of the matter and keeping the mandatory provision contained in Order 8, Rule 1-A (3) of the Code of Civil Procedure, this Court finds that the order of the lower court suffers from law and, therefore, while interfering in the impugned order, this Court allows the applications dated 12.1.2015 and 15.1.2015 filed at the instance of the petitioner (defendant No. 5) and directs the trial court to accept the documents, so filed through memo by the defendant No. 5, and proceed for recording of evidence of, D.W. 5. It is, however, made clear that in the event the plaintiff or any of the defendant seeks permission for recalling the witnesses for adducing further evidence in connection with the documents introduced at this stage, such application shall be allowed and such applicants will be permitted to recall the witnesses as desired by them. 5. It is, however, made clear that in the event the plaintiff or any of the defendant seeks permission for recalling the witnesses for adducing further evidence in connection with the documents introduced at this stage, such application shall be allowed and such applicants will be permitted to recall the witnesses as desired by them. 5. While parting with the impugned order, this Court further observes that since this is a suit originally of the year 1989 (T.S. No. 61 of 1989) and subsequently transferred to a different court and renumbered as C.S. No. 72 of 2004, this Court directs the trial court to conclude the suit as expeditiously as possible, preferably, within a period of six months from the date of communication of this order. Since the matter is decided on contest, parties are directed to appear before the trial court along with the copy of this order within a period of seven days hence.