THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
C.R.P.Nos.1736 & 1738 OF 2022
COMMON ORDER:
These civil revision petitions under Article 227 of the
Constitution of India are directed against the common order dated
05.07.2022 in I.A.Nos.45 & 46 of 2020 in O.S.No.135 of 2012, on
the file of the Senior Civil Judge, Sircilla, wherein the said
applications filed by respondent Nos.1 and 2 herein, were allowed.
2. Heard learned counsel for the petitioners and learned counsel for the respondents. Perused the record.
3. The petitioner herein is the plaintiff and respondent Nos.1 and 2 herein are defendant Nos.6 and 7 in the suit O.S.No.135 of 2012.
4. The petitioner filed the suit for partition and separate possession of suit schedule 'A' and 'B' properties against the respondents. Respondent Nos.1 and 2 filed written statement resisting the claim of the petitioner. While so, when the suit was coming up for further evidence of the defendants, respondent Nos.1 and 2 herein filed I.A.Nos.45 of 2020 under Order XVIII Rule 17 2 CPC to recall D.W.1 and I.A.No.46 of 2020 under Order VIII Rule 1-A(3) CPC to receive the documents and mark them as exhibits. The petitioner filed counters in both the interlocutory applications opposing the same. The trial court vide orders dated 05.07.2022 allowed the said applications holding that unless the documents are received, their relevancy cannot be decided and that no prejudice would be caused to the other side, as they are entitled to cross-examine the witness through whom the documents are marked. Aggrieved by the same, the present revisions are filed.
5. Learned counsel for the petitioner submits that trial court committed error in allowing the applications filed to recall D.W.1 and receive the documents which were misplaced and traced out recently and could not be filed along with the written statement. Learned counsel further submits that though the documents were obtained on 24.11.2012, but could not be filed along with the written statement and they were filed subsequently should not be received and no purpose would be served by receiving the said documents and it is only a waste of time and a futile exercise. In support of his contentions and submissions, learned counsel 3 relied on the judgments of this court in VORUGANTI NARAYANA RAO v. BODLA RAMMURTHY AND OTHERS1 and R.SARASWATHI v. P.RAJAMANIKYAM @ VEERAN AND OTHERS2.
6. Learned counsel for the respondents submits that the trial court has not committed any error and the order under challenge does not suffer from any infirmity and prayed to dismiss the revisions. In support of his submissions, he relied on the judgment of the Hon'ble Apex Court in LEVAKU PEDDA REDDAMMA & ORS v. GOTTUMUKKALA VENKATA SUBBAMMA & ANR3.
7. Order VIII Rules 1-A (1) and (3) CPC state:
"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 1 2011(6) ALD 142 2 2015(5) ALT 527 3 2022 LiveLaw (SC) 533 4 document and a copy thereof, to be filed with the written statement.
xxxx (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."
8. From the above two provisions, it is clear that the defendants have to produce all the documents on the basis of which they rely on evidence at the time of filing of their written statement. If they have not done so, they cannot, without leave of the Court, be permitted to file them later. Leave of the Court can only be granted on the basis of pleading by the defendants that they had a valid reason for not filing these documents along with the written statement.
9. Respondent Nos.1 and 2 now sought to file 15 documents along with I.A.No.46 of 2020 and out of them, document Nos.1 to 13 are receipts of Primary Agricultural Cooperative Central Bank Limited, Branch Mandepally along with the original passbook pertaining to Ragipalli Ramakistaiah of Sakalartha Cooperative Parapathi Sangam, Branch Mandepally and document Nos.14 and 5 15 are the copies of mutation proceedings of the Deputy Tahsildar, Thangallapally Mandal for the year 1998-1999. In the affidavit filed in support of the application, it is specifically stated by defendant No.7 that the said documents were traced out only recently and, therefore, they could not file the same at the time of filing the written statement.
10. Undisputedly, the suit is coming up for defendants' evidence. The trial court after considering the submissions of both sides allowed the applications by recalling D.W.1 and permitting the documents to be received in evidence and held that unless the documents are received, their relevancy cannot be decided and that no prejudice would be caused to the other side as they are entitled to cross-examine the witness through whom the documents are marked. Coming to the issue whether the defendants have shown valid reason which compelled the trial court in permitting the defendants to file the documents, the only reason stated by them is that the said documents were traced out only recently and, therefore, they could not file the same along with the written statement.
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11. In the decisions cited by learned counsel for the petitioner, this court held that the respondents therein have not also pleaded that despite their due diligence, the documents could not be traced and they have produced the documents belatedly and no good reasons were given by them for their belated production of the documents. However, in the decision relied on by learned counsel for the respondent in Levaku Pedda Reddamma's case (3 supra), the Hon'ble Apex Court while observing that the trial court as well as the High Court have not permitted the defendants to produce the documents held that "it is well settled that rules of procedure are hand-maid of justice and, therefore, even if there is some delay, the trial court should have imposed some costs rather than to decline the production of the documents itself".
12. In the instant case, the defendants have not filed the proposed documents along with written statement and they have pleaded that the proposed documents have been recently traced out. The trial court allowed the applications by imposing costs. Considering the facts and circumstances of the case and the submissions of learned counsel, I am of the opinion that respondent 7 Nos.1 and 2 are entitled to be granted leave under Order VIII Rule 1-A (3) CPC. I do not find any illegality or material irregularity in the impugned common order, warranting interference by this court under Article 227 of the Constitution of India.
13. In the result, both the civil revision petitions are dismissed. There shall be no order as to costs.
14. Pending miscellaneous petitions, if any, shall stand closed.
_______________________ A.SANTHOSH REDDY, J 21.11.2022 Lrkm