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Madhya Pradesh High Court · body

2018 DIGILAW 457 (MP)

Rajkumar v. Sheikh Joab Ali

2018-05-04

VIVEK RUSIA

body2018
ORDER 1. The petitioner has filed the present petition being aggrieved by the order dated 14.12.2017 by which an application under Order VIII rule 1(3) of CPC has been rejected. 2. The petitioner is defendant in a suit filed by the respondents No. 1 to 3. The petitioner has filed the counter claim to the suit also. 3. The petitioner/defendant filed an application under Order VII rule 1 (3) of CPC on 13.7.2017 but he withdrew the same on 7.9.2016 and thereafter he filed another application under Order VIII rule 1 (3) of CPC which the Court has rejected vide order dated 14.12.2017 on the ground of delay in filing the application. Hence, the present petition before this Court. 4. Shri Nitin Phadke, learned counsel appearing on behalf of the respondents No. 1 to 3 submits the defendant once filed an application and withdrew the same, he is not permitted to file the same application after some time. He further submits that after passing of the impugned order, the defendant filed another application under the same provisions and the trial Court has rejected the same vide order dated 10.3.2018 and same has not been challenged by him. 5. Shri Yogesh Chandra Markan, learned counsel appearing on behalf of the petitioner submits that earlier the petitioner filed an application on 13.7. 2017 but he was required the original document in some other proceedings, therefore, he withdrew the application. Since the evidence of the plaintiffs has not been started, therefore, he filed second application for taking those documents on record, He has already made the pleadings in respect of those documents in the written statement as well as in the counter- claim. He further submits that the second application was filed in a counter-claim for which there is no bar. 6. Admittedly the application under Order VIII rule I of CPC can be filed at any stage if the documents are not filed along with the written statement. It is the discretion of the Court to allow such application. Even otherwise if the documents are not filed then the defendant can show those documents to witness of plaintiff under order VIII rule 1 (4) of CPC. At present the plaint is at the stage of evidence of the plaintiff. The present petitioner has already made the pleadings about those documents in the written statement. 7. Even otherwise if the documents are not filed then the defendant can show those documents to witness of plaintiff under order VIII rule 1 (4) of CPC. At present the plaint is at the stage of evidence of the plaintiff. The present petitioner has already made the pleadings about those documents in the written statement. 7. All the parties must get full opportunity to present their cases in order to avoid remand by the appellate Court. 8. In view of the above, the impugned order is hereby set aside. The petitioner is permitted to file the documents. The petition is allowed with costs of Rs. 5,000/- payable to the plaintiffs.