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2016 DIGILAW 1161 (ORI)

Dipti Ranjan Sahoo v. Kunjalata Sahoo

2016-11-25

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. 1. By this application under Article 227 of the Constitution of India, challenge is made to the order dated 1.9.2016 passed by the learned Civil Judge (Sr. Division), Keonjhar in C.S. No. 150 of 2012, vide Annexure-6. By the said order, learned trial court marked certain documents as exhibits after closure of evidence. 2. The opposite party nos. 1 to 3 as plaintiffs instituted the suit for declaration that the suit schedule land and building standing thereon is the joint family property of the legal heirs of the deceased-Prahallad Sahoo and permanent injunction impleading the petitioners and opposite party nos. 4 to 12 as defendants. Pursuant to issuance of summons, the defendant nos. 1, 2 and 7 entered appearance and filed written statement denying the assertions made in the plaint. Defendant nos. 4, 5, 8, 9 and 11 filed written statement supporting the stand of the plaintiffs. After closure of evidence, the suit was posted for argument. At this juncture, the proforma defendant nos. 8, 9 and 11 filed an application to mark the bills and receipts issued by the NESCO and the registration certificate of Maa Tarini Engineering issued by the General Manager, DIC, Keonjhar obtained under the R.T.I. Act as exhibits. The contesting defendant nos. 1, 2 and 7 filed objection stating therein that the bills and receipts were in possession of the defendants. The defendant nos. 9 and 11 have been examined as witnesses. The documents are not public documents. The defendants have not relied upon the said documents in the written statement. Acceptance of the documents after closure of evidence will cause serious prejudice. The same have been filed to patch up the lacuna. Learned trial court came to hold that the documents obtained under the R.T.I. Act issued by the General Manager, DIC, Keonjhar is a public document. The electricity bills and electricity receipts had been issued by the Public Official during discharge of his duties. Held so, learned trial court exhibited the documents as Ext.B, Ext.C and Ext.D respectively and granted liberty to the defendant nos. 1, 2 and 7 to cross-examine on those documents to D.W.1. Learned trial court further directed to the defendant nos. 8, 9 and 11 to procure D.W.1 for further cross-examination on those exhibits by defendant nos. 1, 2 and 7. 3. Heard Mr. B.S. Panigrahi, learned counsel for the petitioners, Mr. 1, 2 and 7 to cross-examine on those documents to D.W.1. Learned trial court further directed to the defendant nos. 8, 9 and 11 to procure D.W.1 for further cross-examination on those exhibits by defendant nos. 1, 2 and 7. 3. Heard Mr. B.S. Panigrahi, learned counsel for the petitioners, Mr. N.C. Rout, learned counsel for the opposite party nos. 1 to 3 and Mr. S.K. Mishra, learned counsel for the opposite party nos. 6, 10 and 12. 4. Mr. Panigrahi, learned counsel for the petitioners argued with vehemence that after closure of evidence, the proforma defendants filed those documents to patch up the lacuna. The documents were in possession of the defendants. They have not relied on the same in the written statement. No explanation has been furnished as to why those documents are not marked at the time of examination of the witnesses. 5. Per contra, learned counsel for the opposite party nos. 1 to 3 and learned counsel for the opposite party nos. 6, 10 and 12 supported the impugned order. They submitted that the court has ample power to mark the documents as exhibits. After hearing the parties, learned trial court has marked the documents as exhibits. Thus, no interference is called for. 6. Sub-Rule (1) of Rule 1-A of Order VIII, C.P.C. provides that 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. Sub-Rule (2) provides that 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. 7. Sub-Rule (1) of Rule 1 of Order 13 C.P.C. 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. Admittedly in the written statement filed by the proforma defendants, the documents have not been relied upon. There is no reference to the DIC registration number and electricity bills. 8. Admittedly in the written statement filed by the proforma defendants, the documents have not been relied upon. There is no reference to the DIC registration number and electricity bills. The documents were in possession of the defendants. After closure of evidence, they have filed the application to mark those documents as exhibit without furnishing any explanation. 9. This Court in Padma Charan Sahoo vs. Hura Sahoo & Others, 2016 (I) ILR-CUT 966 held 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. It was further held that the provision is not to penalize the party and a lenient view has to be taken for accepting the documents, which are material for the decision of the case. But that does not mean that the Court will accept the documents when the defendants assign no good cause for not filing the documents at the time of filing of written statement or before settlement of issues. 10. The learned trial court has not considered as to whether the evidence sought to be produced either assist in clarifying the evidence led on the issues or led to a just and effective adjudication. There is no acceptable reason or cause shown by the proforma defendants for non-production of those documents during the trial. 11. Since the documents have been marked as exhibits and the learned trial court granted opportunity to the defendant nos. There is no acceptable reason or cause shown by the proforma defendants for non-production of those documents during the trial. 11. Since the documents have been marked as exhibits and the learned trial court granted opportunity to the defendant nos. 1, 2 and 7 to cross examine D.W.1 instead of interfering with the impugned order, ends of justice would be better served, if a direction is issued to the defendant nos. 8, 9 and 11 to pay cost of Rs.2500/- (rupees two thousand five hundred) to the counsel for the contesting defendants. Order accordingly. The cost shall be paid within two weeks. It is open to the said defendants to cross examine D.W.1 and raise the question of admissibility of the documents at the time of hearing. The petition is disposed of with the aforesaid observations.