M/S .Aparna Constructions And. ... vs Smt.B.K Kothari Alias Kanchan ...
2022 Latest Caselaw 1738 Tel

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

                   CRP No.3903 of 2018
ORDER:

1. This Civil Revision Petition is filed under Article 227

of the Constitution of India assailing the order dated

18.06.2018 in I.A. No.453 of 2018 in O.S.No.298 of 2008

on the file of the learned X Additional Chief Judge, City

Civil Court at Hyderabad.

2. A common order was passed on 18.06.2018 in IA

Nos.453, 452 and 454 of 2018 in OS No.298 of 2018. This

application in IA No.453 of 2018 is filed under Order-8

Rule-1(A) read with Section 151 of the Civil Procedure

Code, 1908 (for short 'CPC') to receive the documents by

condoning the delay.

3. Whereas, IA No.452 of 2018 is filed under Order-18

Rule 17 read with Section 151 of CPC to recall DW.1 for

the purpose of marking the documents and IA No.454 of

2018 is filed under Section 151 of CPC to reopen the

evidence of defendants permitting the petitioners/

defendants to lead the evidence on further documents.

AVRJ CRP No.3903 of 2018

4. Heard the learned counsel for the revision petitioners

/defendants and the respondent/plaintiff. Perused the

material available on record. The detailed submissions

have been made by both the parties, which are more or less

on pleaded lines. Therefore, it may not be necessary for

this Court to refer in detail such submissions. However,

the submissions so made have received due consideration

of the Court.

5. For the sake of convenience, the parties are

hereinafter referred to as plaintiff and defendants as

arrayed in the original suit.

6. The plaintiff has filed OS No.298 of 2008 against the

defendants 1 to 4 for declaration of title and delivery of

vacant possession of suit schedule property. The

defendants have filed their written statement, issues are

settled, evidence on behalf of plaintiff and defendants is

also concluded and when the suit was adjourned for

arguments, the present application in IA No.453 of 2018

along with IA Nos.452 and 454 of 2018 was filed for

reception of documents, recalling DW.1 and reopening the

AVRJ CRP No.3903 of 2018

evidence of defendants. All these three applications in IA

Nos.453, 452 and 454 of 2018 in OS No.298 of 2008 were

dismissed by the trial Court, through the common order

dated 18.06.2018.

7. The defendants have filed this Civil Revision Petition

only assailing the order in IA No.453 of 2018 filed under

Order-8 Rule-1(A) r/w Sec.151 of CPC for grant of leave to

receive the following documents stating that these

documents were obtained by the defendants on 09.03.2018

and they are very much essential to prove the case of the

defendants.

8. Whereas, the plaintiff has filed a detailed counter

before the trial Court denying the petition averments

alleging that the suit was filed in the year 2008 and that

the plaintiff's witnesses were examined in October 2017.

Thereafter, several opportunities were given to the

defendants, DW.1 was also cross-examined and he has

deposed that he is aware of the said documents. Recalling

of DW.1 will not serve any purpose as the documents are

AVRJ CRP No.3903 of 2018

not admissible in evidence, accordingly, prayed for

dismissal of the petition.

9. The learned counsel for the petitioners/defendants

strenuously contends that these documents could not be

filed along with the written statement as they were

obtained at a later point of time and no prejudice would

cause to the plaintiff if these documents are received in

evidence on behalf of defendants by recalling DW.1 and

reopening the evidence of defendants. But, the trial Court

has adopted a pedantic approach failed to receive the said

documents obtained under Right to Information Act, 2005

(for short 'RTI Act'), which are admissible in evidence and

that the defendants are able to explain with sufficient

cause the reason for not filing the documents along with

the written statement and relied on the principles laid in

the following decisions:

i) Bipin Shantilal Panchal v. State of Gujarat and another1;

ii) Datti Kameswari v. Marrapu Lakshmunaidu and others2;

(2001) 3 SCC 1

AVRJ CRP No.3903 of 2018

iii) Janga Ranga Reddy v. Yadlapalli Jagadish Chandra Choudary3;

iv) Spectrum Power Generation Limited, rep.by its General Manager, Y. Venkata Rao v. M. Kishan Rao and others4;

10. Per contra, the learned counsel for the respondent/

plaintiff strenuously contends that the evidence of both

parties is concluded, the defendants were aware of these

documents when their evidence was in progress and that

DW.1 is also cross-examined with reference to these

documents, the proposed documents are obtained under

RTI Act, they are not certified copies, they are only true

copies, they cannot be received in evidence at this belated

stage on behalf of defendants after closure of evidence on

both sides, no useful purpose would be served in allowing

the said application and relied on the following decisions:

i) M/s. Bagai Construction, through its Proprietor Lalit Bagai v. M/s. Gupta Building Material Store5; and

ii) K. Bhaskar Rao v. K.A. Rama Rao6.

    2016 (1) ALT   700

    2016 (6) ALT   298

    2017 (6) ALT   173

    AIR 2013 SC    1849

                                                           AVRJ
                                                 CRP No.3903 of 2018

11. This application is filed under Order-8 Rule-1(A) of

CPC. After the amendment of the Code of Civil Procedure

by Act of 2002 with effect from 01.07.2002, it is incumbent

on the part of a defendant who basis his defence on a

document, or relies upon any document in his possession

or power in support of his defence, to produce it along with

his written statement, and also file a copy of it. If he did

not produce it along with the written statement, without

the leave of the Court, he cannot file it on a later point of

time. The reason for this rule is that both parties to the

suit should go to trial knowing the case and the documents

of each other and neither party can take the other by

surprise at a later stage after his evidence is completed.

12. Admittedly, in the original suit, evidence on behalf of

both sides is closed on 12.03.2018 and when the suit was

being adjourned for arguments on 19.03.2018, the present

application along with two other applications for reception

of documents, recall of DW.1 and reopen of the suit for the

purpose of evidence on behalf of defendants were pressed

2010 (5) ALD 339

AVRJ CRP No.3903 of 2018

into service on 04.04.2018. All the three applications were

dismissed through the common order dated 18.06.2018.

Curiously, without assailing the orders in IA Nos.452 and

454 of 2018 filed under Order-18 Rule-17 of CPC for recall

of DW.1 and u/s.151 of CPC to reopen the defendants'

evidence respectively, which were dismissed through the

common order dated 18.06.2018, the defendants have only

assailed the common order dated 18.06.2018 in IA No.453

of 2018.

13. Thus, the orders in IA Nos.452 and 454 of 2018 have

attained finality, wherein the trial Court has rejected the

prayer of the defendants for recall of DW.1 for marking the

documents and also for reopening the suit for the purpose

of recording further evidence of defendants.

14. i) In Bipin Shantilal Panchal's case (1st supra), the

Hon'ble Supreme Court of India while dealing with Sections

5 & 3 of Evidence Act, 1872 as to the admissibility of

evidence held that at the time of exhibiting the documents,

instead of passing a speaking order as to the evidentiary

value of such document, court should make a note of such

AVRJ CRP No.3903 of 2018

objection, if any, raised and decide it at the last stage of

final judgment, except where the objection relates to

deficiency in stamp duty of a document.

ii) In Datti Kameswari's case (2nd supra), this Court

while dealing with the similar facts held that true copies of

public documents certified by the designated Public

Information Officer under RTI Act can be taken as certified

copies of public documents and no formal proof of the

same is required to mark them in evidence.

iii) Similarly, in Janga Ranga Reddy's case (3rd supra),

this Court has held that if the documents obtained under

RTI Act are certified to be true copies and they issued on

payment of legal fees therefor, with stamp and signature of

the public office; such documents may be received in

evidence, once they complete the requirements u/s.76 of

Evidence Act.

iv) Similarly, in the case of Spectrum Power Generation

Limited's case (4th supra), a learned single Judge of this

Court held that the only thing that is germane for

consideration in an application filed under Order-8 Rule 1

AVRJ CRP No.3903 of 2018

(A) of amended CPC is the explanation for earlier non-filing

if the documents were in custody. Once the Court is

satisfied with the explanation, such documents may be

received in evidence.

15 i) In Bagai Construction's case (5th supra), the Hon'ble

Supreme Court while dealing with production of additional

documents and recall of witnesses in a suit for recovery of

money held that recording of evidence is a continuous

process, the documents that are mentioned in the written

statement which are in exclusive possession of the party

should have been filed along with the pleadings and cannot

be allowed to file such documents at a later stage. The

Supreme Court further held that the power is to be

exercised sparingly and in appropriate cases and not as a

general rule merely on the ground that recall of such

witnesses would not cause any prejudice to the parties. In

fact, that is not the scheme or intention of Order-18 Rule-

17 of CPC. In para-12, the Supreme Court further held as

under:

AVRJ CRP No.3903 of 2018

"After change of various provisions by way of amendment in the CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated."

ii) In K. Bhaskar Rao's case (6th supra), a learned single

Judge of this Court while dealing with the reception of

documents in an appeal held that the xerox copies certified

as true copies by the Public Information Officer under RTI

Act are only true copies and cannot be equated to certified

copies under the Evidence Act and they cannot be received

in evidence.

16. Recently, in the case of Pallepati Narsaiah and

others v. P. Satyanarayana and others7, a learned single

Judge of this Court while dealing with an application under

Order-8 Rule- 1(A) of CPC in similar facts held that after

closing the plaintiffs evidence at the time when the

defendants' evidence has commenced, they cannot file the

2019 (5) ALD 411 (TS)

AVRJ CRP No.3903 of 2018

documents without assigning any reasons for not filing

such documents along with the written statement.

Allowing a petition filed under Order-8 Rule-1(A) of CPC by

the defendants is not proper, accordingly set aside the

impugned order passed by the trial Court.

17. The Hon'ble Supreme Court in N.C. Bansal v. Uttar

Pradesh Financial Corporation and another8, while dealing

with an application under Order-7 Rule-14 of CPC filed on

behalf of the plaintiff for production of documents held that

such application can be considered i) when the trial is at

initial stage, and trial is yet to begin and ii) when the

application is not filed at belated stage.

18. Be it stated that in the case on hand, evidence on

both sides is concluded, when the suit is being adjourned

for arguments, the present application is filed by the

defendants along with two other applications in IA No.452

of 2018 filed under Order-18 Rule-17 CPC for recall of

DW.1 and in IA No.454 of 2018 filed u/s.151 of CPC to

reopen the evidence. Though all these three applications

(2018) 2 SCC 347

AVRJ CRP No.3903 of 2018

were dismissed through a common order, the plaintiff has

only assailed the order in IA No.453 of 2018, thereby the

orders in IA Nos.452 and 454 of 2018 have attained

finality.

19. When the facts of the present case are tested on the

touchstone of the principles laid by the Hon'ble Supreme

Court of India in Bagai Construction's case (5th supra) and

N.C. Bansal's case (8th supra) and the principles laid by

this Court in the case of Pallepati Narsaiah's case (7th

supra) and other decisions cited above, the answer is in the

negative. The Civil Revision Petition is liable to be

dismissed for more than one reason confirming the orders

impugned. The defendants are not entitled for reception of

documents at this belated stage after closure of evidence

on both sides when the suit is being adjourned for

arguments without assigning proper reasons for not filing

the said documents along with written statement. That too,

when the defendants have filed the present Civil Revision

Petition only assailing the orders in IA No.453 of 2018

without questioning the legality or validity of the common

AVRJ CRP No.3903 of 2018

order in IA No.452 and 454 of 2018 for recall of witness

and reopening of the suit for defendants further evidence,

they are not entitled for any relief as prayed for.

20. In that view of the matter, I do not find any

jurisdictional error or irregularity committed by the trial

Court in dismissing the application in IA No.453 of 2018

and accordingly it is confirmed.

21. In the result, the Civil Revision Petition is dismissed

confirming the order impugned dated 18.06.2018 in I.A.

No.453 of 2018 in O.S.No.298 of 2008 on the file of the

learned X Additional Chief Judge, City Civil Court at

Hyderabad. However, in the circumstances of the case,

there shall be no order as to costs.

As a sequel, interlocutory applications, if any

pending, shall stand closed.

__________________________________ A. VENKATESHWARA REDDY, J.

Date: 06.04.2022 Isn