Sunita Agarwal ORDER
Sunita Agarwal, J.
1. Heard Shri Prabhakant Shukla in person. The petitioner is plaintiff in the suit out of which the present petition arises.
2. The present petition is directed against the orders dated 1.4.2015 passed by the 1st Additional Civil Judge (S.D.) Kanpur Nagar and the order dated 3.10.2016 passed by the Additional District Judge, Kanpur Nagar on an application Paper No. 239-Ga moved by the plaintiff for rejection of application 111-Ga of the defendant to bring two documents namely trade tax return and power of attorney on record. The objection taken by the petitioner/plaintiff in application 239-Ga was that the said documents had been filed with much delay and they were not part of record of written statement and as such the defendant would be precluded from bringing them on record.
3. The short controversy being raised in the present petition is whether the defendant could be permitted to bring those documents on record by the Trial Court and the Court below had erred in granting leave to the defendant in admitting them in evidence. The petitioner namely Shri Prabhakant Shukla vehemently argued that in view of the mandate of Order VIII Rule 1A and Order XIII Rule 1 of the Code of Civil Procedure, 1908, the documentary evidence in original can be filed only of those documents, copies whereof have been filed along with the written statement. Under Order VIII Rule 1A, the defendant is under obligation to bring the documents in a list to be filed along with the written statement, on which he bases his defence. However, leave can be granted by the Court only in a case where the document was either not in possession or power of the defendant or it could not be produced by him despite best efforts. No such situation could be contemplated in the present matter. Moreover, there is no application of mind by the Trial Court before proceeding to admit the documents filed by the defendant.
4. As far as filing of document and admission thereof by the defendant, Order VIII Rule 1A and Order XIII Rule 1 as incorporated by Amendment of 1999 w.e.f. 1.7.2002 are relevant, and reproduced as under:-
"Order VIII Rule 1A:- 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 document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(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.
(4) Nothing in this rule shall apply to documents-
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory.
Order XIII Rule 1:- Original documents to be produced at or before the settlement of issues.-
(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.
(2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
(3) Nothing in the sub-rule (1) shall apply to documents-
(a) produced for the cross-examination of the witnesses of the other party; or
(b) handed over to a witness merely to refresh his memory."
5. Sub Rule (1) of Rule 1A of Order VIII mandates the defendant to file a document which he intends to rely through a list of documents to be filed along with the written statement. Sub Rule (3) of the said Rule further stipulates that the document which is not produced at the time of filing of written statement, shall not be received in evidence, except with the leave of the Court. The provision is a time-saving step as it directs the defendant to file his documents at the time of presentation of the written statement. It is also added with an intention to give opportunity to the plaintiff to prepare beforehand as to the defence of the defendant. The amending Act came into force from 1.7.2002. Rule 1 of Order XIII added by way of amendment w.e.f. 1.7.2002 stipulates that all the documentary evidence in original shall be filed by both the parties or their pleader before settlement of issues. This provision again makes it mandatory for the parties to produce their original documents within prescribed time. The mandate of Order XIII Rule 1 that the original of only those documents could be filed, copies whereof have been filed along with the plaint or written statement is in tandem with the object of Rule 1A of Order VIII which has been added by the same amendment made effective w.e.f. 1.7.2002 that is with a view to check the defendant from protracting the suit of the plaintiff. Order XIII Rule 1 C.P.C. further mandates that the original documents must be filed on or before the settlement of issues.
6. No option is left upon the defendant to bring any document on an evidence except those which have been filed along with the written statement, without the leave of the Court. The discretion conferred upon the Court to grant leave is to be exercised judiciously. There is no straight-jacket formula, however, on a good cause being shown by the defendant, leave can be granted by the Trial Court to file the documents by the defendant in his defence at the hearing of the suit.
7. From the legal position discussed above, it cannot be said that in no case, the Trial Court can grant liberty to the defendant to bring the documents to base his defence before it, at a later stage of the suit. The only question, therefore, remains to be considered in the present case as to whether the discretion exercised by the Trial Court in admitting the documents of the defendant was an outcome of an error in exercise of its judicial discretion.
8. In the instant case, the written statement was filed by the defendant on 2.2.2006. The copy of the written statement has not been brought on record. The application 111-Ga filed by the defendant along with the affidavit on 9.4.2013 to bring the documents namely the trade tax return and power of attorney has also not been brought on record. Only this much is submitted in 'Paragraphs 4 and 5' of the present petition that on 4.3.2006, notice to produce the documents referred in the written statement in 'Form-7' as contained in 'Appendix-C' under Order XI Rule 16 was given to the defendant. No such document was produced by the defendant up till 1.11.2006 which was the last date mentioned in the said notice. All of a sudden on 9.4.2013, the documents in question were sought to be produced by the defendant.
9. However, there is no averment with regard to the settlement of issues, if any, by the Trial Court or the stage of the suit at which, the documentary evidences were filed by the defendant. A perusal of the order passed by the Trial Court further indicates that the suit was dismissed in absence of the plaintiff/petitioner on 22.1.2009. The Trial Court having been satisfied with the explanation offered by the defendant granted leave to bring his documents on record. For the delay in filing the same, the cost of Rs. 500/- had been imposed. A liberty is granted to the petitioner/plaintiff to file his evidence.
10. Considering the facts recorded by the Trial Court and the manner in which the leave has been granted, it cannot be said that it had erred in allowing application 111-Ga admitting the defendant's documents on record. The Revisional Court had rightly refused to interfere in its limited jurisdiction under Section 115 of the Code of Civil Procedure.
11. For the above noted reasons, this Court in exercise of its extraordinary supervisory powers under Article 227 of the Constitution of India is not inclined to interfere in the judicial discretion exercised by the Trial Court.
12. The present petition is found devoid of merits and hence dismissed.
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