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2015 DIGILAW 663 (ORI)

PADMA CHARAN SAHOO v. HURA SAHOO

2015-11-27

A.K.RATH

body2015
JUDGMENT : Dr. A.K. Rath, J. - This is an application under Article 227 of the Constitution of India. The petitioner has challenged, inter alia, the order dated 23.6.2000 passed by the learned Civil Judge (Senior Division), Jagatsinghpur in T.S. No.125 of 1988. By the said order, learned trial court rejected the application of the petitioner to accept the document at the time of hearing of the suit. 2. Opposite party no.1 as plaintiff instituted T.S. No.125 of 1988 in the court of learned Civil Judge (Senior Division), Jagatsinghpur impleading the present petitioner and opposite parties 2 and 3 as defendants for declaration of title and permanent injunction. The case of the plaintiff is that Jhari Sahoo, father of defendant nos.2 to 4 had inducted defendant no.1 as a tenant in the year 1985. After his death, opposite party no.2 son of defendant no.2 realised the rent from the petitioner. While the matter stood thus, to press the legal necessity, the legal heirs of Jhari Sahoo transferred the suit schedule land in favour of plaintiff on 10.5.1988. When defendant no.1 disturbed in his possession, the suit was filed. 3. Pursuant to issuance of summons, defendant no.1 entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendant no.1 is that Jhari Sahoo incurred a loan of Rs. 4500/- from him in the year 1981 for the marriage ceremony of his daughter. Since loan was not paid, Jhari Sahoo entered into an oral agreement in the year 1982 with him to sell the land. After payment of Rs. 5500/- towards rest consideration amount, possession was delivered. Further, Jhari Sahoo received a sum of Rs. 5000/- from him for his treatment and executed a deed of agreement to sell the land in his favour. But then, after execution of the deed he expired. It is further stated that the defendant no.2 with an oblique motive executed a nominal and void sale deed in favour of the plaintiff, paternal uncle of defendant no.2. Neither any consideration money was paid nor any delivery of possession was made. 4. During examination of the plaintiff as P.W.4, defendant no.1 produced the unregistered agreement dated 5.1.1986 said to have been entered into between Jhari Sahoo and him and filed a petition to receive the said document as evidence. The plaintiff filed an objection to the same. Neither any consideration money was paid nor any delivery of possession was made. 4. During examination of the plaintiff as P.W.4, defendant no.1 produced the unregistered agreement dated 5.1.1986 said to have been entered into between Jhari Sahoo and him and filed a petition to receive the said document as evidence. The plaintiff filed an objection to the same. Learned trial court came to hold that in the written statement there is a reference to the document in question. Defendant no.1 bases his defence upon the said document. He has not assigned any reason as to why he could not file the document in question earlier. Having held so, learned trial court by order dated 23.6.2000 rejected the application. 5. Heard Mr. N.P. Parija, learned counsel for the petitioner and Mr. B.K. Dagara, learned counsel for the opposite party no.1. 6. Order 8, Rule 1A CPC deals with duty of the defendant to produce document upon which relief is claimed or relied upon by him. The same is quoted hereunder: " ORDER ? VIII WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM 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 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 plaintiff's witnesses, or (b) handed over to a witness merely to refresh his memory." 7. (4) Nothing in this rule shall apply to documents- (a) produced for the cross-examination of the plaintiff's witnesses, or (b) handed over to a witness merely to refresh his memory." 7. Sub-Rule (1) of Rule 1 Order 13 CPC provides that the parties or their pleader shall produce, on or before the settlement of issues, all the documentary evidence of in original where the copies thereof have been filed along with plaint or written statement. 8. On a bare perusal of the aforesaid provisions, 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 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. Where the document is not in possession or power of the defendant, he shall state in whose possession or power it is. In the event the document is not produced at the time of presentation of the written statement, the same can be filed before settlement of the issues. A document which ought to be produced in Court by the defendant, but is not so produced shall not without leave of the Court be received in evidence on his behalf at the time of hearing of the suit. Sub-rule (4) carves out exceptions and declares that the provision of the rule shall not apply to certain documents. 9. If the defendant assigns good cause for not filing the documents at the time of presentation of the plaint or on or before settlement of the issues and the documents are vital and would assist the Court in coming to the conclusion, the documents should be accepted. The provision is not to penalise the defendant. A lenient view has to be taken for accepting the documents, which are material for the decision of the case. 10. In the instant case, the application was filed to accept the document on the ground that the document was not in his possession. The document is material for the decision of the case. 11. A lenient view has to be taken for accepting the documents, which are material for the decision of the case. 10. In the instant case, the application was filed to accept the document on the ground that the document was not in his possession. The document is material for the decision of the case. 11. In view of the same, the order dated 23.6.2000 passed by the learned Civil Judge (Senior Division), Jagatsinghpur in T.S. No.125 of 1988 is quashed and the learned trial court is directed to accept the document subject to payment of cost of Rs. 3750/- to the learned counsel for the plaintiff. The petition is disposed of. Final Result : Disposed Off