High Court
Case Details
CRP 77/2010 BEFORE HON’BLE MR JUSTICE S. TALAPATRA Heard Ms. S.D. Choudhury, learned counsel appearing for the petitioner. None ap pears for the respondents. This is a petition filed under Article 227 of the Constitution of India against the order dated 11.12.2009 as passed by the Munsiff, Kalibar in Title Suit No.1 1(K)/2007 rejecting the petition No.209/284 of 2009 whereby leave was sought to introduce some documents which could not be filed along with the Written Stateme nt in terms of the provision of Rule 1(A) of the Order VIII of the C.P.C. and th e documents those were admitted and marked as Exbt. ’Ka to Jha’ in the evidence were expunged. The suit being Title Suit No.11(K)/2007 was filed by the responde nts for permanent injunction against the petitioner, the defendants in the suit, in respect of the schedule -A land as appended to the plaint.
Legal Reasoning
The defendant by filing a written statement disputed the pleadings in the plaint holding that by a valid order dated 03.04.2007 as passed by the Sub-Divisional Officer, Kaliabor, he has been allowed the land measuring 7 Bighas, 2 Kathas, 18 lechas out of the total land measuring 15 Bighas, 16 lechas which was the ceili ng surplus land of Sukmuthia Tea Estate. But at the time of filing the Written Statement the petitioner did not file docu ments either in original or the copies thereof as required by Rule 1(A) order 8 of the C.P.C. The Written Statement was submitted on 22.06.2007. Thereafter, the defendants, the petitioner herein filed the evidence by way of affidavit under Order XVIII Rule 4 of the C.P.C. on 19.12.2008 along with some original document s and those documents were admitted in the evidence and marked as Exbt. ’Ka to E xbt. Jha.’ Subsequently, apprehending that at the time of argument, acceptance of those doc uments could be questioned by the plaintiff, he filed an application on 30.10.20 09 for accepting those documents. Before that, on 12.06.2009 another application was filed by the defendants and to which the plaintiff objected and filed the W ritten Objection. The objection of the plaintiff projected that the defendant di d not file any application seeking leave of the Court for accepting the said doc uments (Exbt. Ka to Exbt. Jha) in the evidence and realizing the mistake he had been attempting to cure the said defect by way of filing an application being pe tition No.284/30.10.2009. It appears from the records that in the Written Statem ent too there is no list of reliance by the defendant nor a separate catalogue o f the documents with or without the originals and copies thereof had been submit ted along with the Written Statement. As such, the defendant had not also disclo sed regarding the custody of the documents or nor he brought any step for produc tion of the documents prior to settlement of the issues. The petition No.209/284 /2009 as filed under Order VIII read with Section 151 of the C.P.C. was pressed for consideration. It has surfaced that without production of the documents in t he manner as prescribed by the law the defendants got those documents admitted i n the evidence. As a result, serious objection had been registered by the plaint iff. After hearing, the Munsiff, Kaliabor passed the impugned order holding that the defendant, the petitioner herein, got ample opportunities for filing the do cuments but did not so file. The defendant was found silent in his Written State ment. He had not pleaded therein that some documents were not in his possession or power as those were required to be produced. Therefore, it has been held that the documents in question cannot be allowed at this juncture. On the relevant consideration, this Court is of the opinion that at the time of considering the petitions being 209/284/2009 the provision of Order VIII Rule 1( A) (3) were not properly taken care of by the Court of the Munsiff, Kaliabor. Th e said provision stipulates that ’a document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without th e leave of the Court, be received in evidence on his behalf at the hearing of th e suit.’ It appears that the documents were received in the evidence by the Court at the time of hearing of the suit. Such acceptance was definitely not in accordance wi th the law as prescribed but when a leave application was filed by the defendant
Decision
, the Court is saddled with duty to consider the said application in its perspec tive. If it is found that the grounds so assigned for not producing the document s at the time of filing the Written Statement or before framing of the issues we re satisfactory, then Court is within its jurisdiction to accept the documents e nsuring that no prejudice is caused to the other party. For that, the Court may also allow the other parties to rejoin such evidence or the effects therefrom. From a bare reading of the impugned order it further surfaced that ’the ground’ so assigned in the leave application filed under Order VIII of the C.P.C. was no t considered. It simply says that since the documents were filed without taking that leave and those were exhibited in the evidence, that part of the evidence r equired to be expunged. In this view of the matter, the impugned order is interfered with and set aside. The Munsiff, Kaliabor is directed to rehear the leave petition as filed by the p etitioner, the defendant in the suit and if it is found that the grounds so assi gned for not producing the documents at the time of filing the Written Statement or before framing of the issues are satisfactory, the Court would definitely ac cept those documents ensuring that no prejudice is caused to the plaintiffs. This petition is allowed to that extent, subject to the condition that the petit ioner shall pay cost of Rs.2,500/- to the respondents by the next date so fixed. The parties are directed to appear before the Court of the Munsiff, Kaliabor on 14.02.2013. If the plaintiffs are found not appeared, the Munsiff, Kaliabor shal l issue separate notice upon them for their appearance and thereafter fix the da te for hearing on the said petition being petition No.209 filed on 12.06.2009 al ongwith the objection petition being No.284 dated 30.10.2009, to pass a fresh or der in terms of the observations as laid in this order. Accordingly this petitions stands allowed and disposed of. Send down the LCRs forthwith.