Andhra Pradesh High Court - Amravati
S.R. Collections vs Smt.Kurakulakavitha Lakshmi on 24 February, 2022
THE HON'BLE Ms. JUSTICE B. S. BHANUMATHI
Civil Revision Petition nos.7605 & 7590 of 2018
COMMON ORDER:
These two revisions are directed against the interlocutory orders passed in O.S.No.677 of 2016 on the file of the Rent Controller-cum-IV Additional Junior Civil Judge, at Visakhapatnam.
2. Precisely, C.R.P.No.7605 of 2018 is filed against order, dated 25.09.2018 passed in I.A.No.202 of 2018 in O.S.No.677 of 2016 aggrieved by the order of refusal to receive the document, i.e., sale agreement, dated 26.07.2013. C.R.P.No.7590 of 2018 is filed aggrieved by the order of the trial Court dated 25.09.2018 passed in I.A.No.229 of 2018 rejecting to grant permission to file additional written statement in the suit along with photostat copy of the agreement of sale, dated 26.07.2013. Since these two revisions are interrelated, they are heard together and are being disposed of by this common order.
3. Heard learned counsel appearing for the parties.
4. The plaintiffs filed the suit against the defendant seeking eviction of the defendant from the plaint schedule property as well as claiming arrears of rent upto 31.08.2016 and damages for use and occupation from 01.09.2016 as the tenancy was terminated with effect from 31.08.2016. The 1st plaintiff executed an agreement of sale dated 26.07.2013 in favour of the defendant agreeing to sell the plaint schedule property for an amount of Rs.50,00,000/- and the defendant paid the advance sale consideration of Rs.5,00,000/- at the time of execution of the sale agreement. As the said agreement of sale was misplaced, the defendant could not file the same at the time of filing the written 2 statement. The said agreement of sale was traced recently and the said document is very much essential to establish the case of the defendant. The defendant also filed another application in I.A.No.229 of 2018 to file additional written statement along with the copy of the agreement of sale dated 26.07.2013. The Court below dismissed both the applications, by separate orders.
5. As a general rule, a party is required to file all documents relied on by him/her along with the pleadings. Since the petitioner is a defendant, the situation is covered by Order VIII Rule 1A (1) of the Code of Civil Procedure, 1908. Of course, Order VIII Rule 1A (2) to (4) permits documents to be filed at a subsequent stage, provided any condition stated therein is applicable.
6. For better appreciation, Order VIII Rule 1A of the Code is reproduced hereunder:
"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 3
(b) handed over to a witness merely to refresh his memory."
7. The case of the petitioner does not fall under the situations enumerated in Sub-Rules (3) and (4). The petitioner has left with Sub-Rule (3) alone to make out his case. The provision has not specified any conditions under which such leave can be granted. It at all a Court has to grant leave to produce a document, at the hearing, the discretion is not unbridled, rather, it is to be exercised judiciously. It can act judiciously when the party proposing to produce document can provide grounds enabling this Court to examine the circumstances, such as, whether it is just and necessary to produce document in the interest of justice; why document could not be produced at the earliest opportunity.
8. None of the conditions indicated in the above provision is shown to have application to the petitioner. The petitioner failed to offer and establish why, in spite of due diligence, he could not file the said document at the earliest opportunity. The document may provide good defence, but not even its existence is averred in the written statement filed in the year 2017, much less producing it though the document is purportedly executed on 26.07.2013.
9. The revision petitioner contends that the document can be admitted in evidence as foundation has already been laid in the pleadings that the plaintiff is going to sell the property. Instead of hazily pleading, there is no reason for the petitioner not to specifically plead in the written statement that an agreement of sale was executed.
10. Now the petitioner made an attempt to introduce a plea also by seeking permission/leave to file additional written statement by filing I.A.No.229 of 2018 under Order VIII rule 9 of the Code.
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Order VIII Rule 9:
"9. Subsequent pleadings.--No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same."
Even to grant such leave also, Sub-Rule 9 does not prescribe any parameters like Order VIII Rule 1A (3) discussed above. The phraseology used in both the provisions is 'without leave of the Court' and 'except leave of the Court'. Thus, they are akin in their application. Therefore, whatever is considered and concluded while dealing with I.A.No.202 of 2018 are equally applicable to leave sought in I.A.No.229 of 2018.
11. Not even a single reason is assigned by the petitioner to enable the Court below to exercise its discretion in favour of the petitioner for receiving the document at a subsequent stage. Moreover, as is already noted, the petitioner failed to offer a fact that there existed an agreement of sale initially when the written statement was filed. Now also, no reason is stated why such plea was not earlier taken nor could the document be filed along with the written statement itself.
12. For the same reasons for which the petitioner is not entitled to produce the document, he is not entitled to file additional written statement also. This Court does not find any reason to interfere with the orders impugned in these revisions. The revision petitions are devoid of merits.
13. Accordingly, both the revisions are dismissed.
There shall be no order as to costs.
5Miscellaneous petitions pending, if any, shall stand closed.
_________________ B. S. BHANUMATHI, J 21.02.2022 RAR