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[Cites 2, Cited by 0]

Jharkhand High Court

Bhola Sk vs Noorful Bewa on 23 September, 2022

Author: Rajesh Shankar

Bench: Rajesh Shankar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 C.M.P. No. 267 of 2022

1.   Bhola Sk
2.   Kantu Sk
3.   Mantu Sk
4.   Erfan Sk                                 ...    ...     Petitioners
                                    Versus
1.   Noorful Bewa
2.   Malek Sk
3.   Kalu Sk
4.   Najrul Sk
5.   Rejaul Sk
6.   Ayub Sk
7.   Khadir Sk                                ...      ...     Opposite
     Parties
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
                         -----

For the Petitioners : Mr. Gautam Kumar Singh, Advocate For the Opposite Parties :

-----
Order No. 05 Dated: 23.09.2022 The present civil miscellaneous petition has been filed for quashing/setting aside the order dated 05.03.2022 (Annexure-6 to the present petition) passed by the Civil Judge-I, Rajmahal in Original Suit No. 107/2013, whereby the application filed by the defendant no. 7/petitioner no. 4 on behalf of the defendants/petitioners seeking leave to admit the document i.e., unregistered deed of sale has been rejected.

2. Learned counsel for the petitioners submits that learned court below committed an error in rejecting the petitioners' application seeking leave to admit an unregistered sale deed dated 02.01.2003. The petitioners had made specific averment in the said application that the original document of unregistered sale deed dated 02.01.2003 was lying in the other file of a criminal case, however, the learned court below has rejected the said application in a mechanical manner. If the petitioners are not allowed to bring the said document on record, their case will be adversely affected.

3. It would be relevant to refer the provisions of Order VIII Rule I-A of CPC, which is quoted as under:

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"[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 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 plaintiffs' witnesses, or
(b) handed over to a witness merely to refresh his memory.]"

4. It would be evident from the aforesaid provision that if the defendant relies upon a document in support of his defence and the same is in possession or power, he has to enter the said document in a list to be produced in the court at the time of filing of the written statement and at the same time, he shall also have to file the said document and a copy thereof with the written statement. Sub-clause (3) of Rule 1-A, Order VIII CPC, however, provides that a document which was required to be produced in the court by the defendant, but is not produced, shall not be received in evidence without leave of the court. It is thus clear that production of document(s) relied upon by the defendant at the time of filing of the written statement is a mandatory requirement. In failure of doing so, the said document can only be received in evidence with the leave of the court. The discretion conferred upon the court to grant such leave is to be exercised judiciously. While there is no straitjacket formula, this leave can be granted by the court on a good cause being shown by the defendant.

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5. The petitioner had failed to show any good cause before the trial court for granting leave to admit the said unregistered sale deed in evidence. Before this court also, the petitioner has failed to show that the said document is necessary for arriving at a just decision in the suit. On perusal of the application of the petitioner no. 4 filed before the learned court below seeking leave to admit an unregistered sale deed dated 02.01.2003 in evidence, it appears that he has made a vague statement in very first paragraph of the same that the original document was lying in the other file of the criminal case. He has not even properly stated as to in which particular criminal case the said document was lying. If the said petitioner was not in possession of the unregistered sale deed dated 02.01.2003 in original, he should have clearly stated in his application as to where the said document was lying so as to prove his bonafide before the court to get the said document admitted in evidence at a later stage.

6. Under the aforesaid circumstance, this Court is of the view that the learned court below has not committed error in refusing to grant leave to the petitioner no. 4 to produce the unregistered sale deed dated 02.01.2003 in evidence at belated stage and hence, the same requires no interference of this Court under Art. 227 of the Constitution of India.

7. The present C.M.P. is accordingly dismissed.

I.A. No. 5823 of 2022 also stands dismissed.

(Rajesh Shankar, J.) Manish