Ganupa Bharathamma vs Darmareddi Laxmi Alias
2022 Latest Caselaw 6019 Tel

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

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

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

2011(6) ALD 142

2015(5) ALT 527

2022 LiveLaw (SC) 533

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

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.

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

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