Andhra HC (Pre-Telangana)
Dugaputi Sudhakar Reddy vs Avulapati Shankar Reddy And Ors. on 13 December, 2004
Equivalent citations: 2005(2)ALD61, 2005(2)ALT417
ORDER D.S.R. Varma, J.
1. Heard both sides.
2. This revision is directed against the order passed by the learned Senior Civil Judge, Atmakur in allowing the LA. No. 106 of 2004 in OS No. 35 of 1995, filed under Order VIII Rule 1-A CPC to receive a list of documents as evidence.
3. It was stated in the affidavit filed in support of the said IA that the documents mentioned in the list were in possession of the first defendant and they could not be produced before the Court because the first defendant was no more. The third defendant, while checking the belongings of the first defendant, found the same and hence those documents were being sought to be received at a belated stage.
4. Further, the learned Counsel for the petitioner vehemently contends, firstly, that there is a procedure prescribed under Order VIII Rule 1-A; secondly, if the Court rejects to receive the documents, the same can be a ground in the appeal under Section 105 CPC and hence the Court below erroneously allowed the IA.
5. In this context, it is to be seen that in a suit for partition, the rights of all the parties have to be decided finally on merits. It is to be further seen that the defendants already filed the written statement stating that earlier there was a partition, but no document could be produced.
6. Now, in the present application and its connected affidavit, it was stated that the documents were in the custody of the first defendant, who is no more. Therefore, the Court below is satisfied with the reason given by the defendant in not filing such documents along with the written statement.
7. Order VIII Rule. 1-A CPC deals with the duty of the defendant to produce the documents upon which relief is claimed or relied upon by him. Sub-rule (1) postulates that it is incumbent upon the defendant to produce such document, which is the basis for his defence, and the same shall be filed along with the written statement. Sub-rule (3) of Rule 1 of Order VIII reads as under:
"A document which ought to be produced in Court by the defendant under this rule, but, is not produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit."
The said provision is a respite to the defendant or an exception to sub-rule (3) of Rule 1-A of Order VIII. By this provision, the defendant is permitted to produce such documents with the leave of the Court and the same may be received in evidence. Of course, such receipt of documents under sub-rule 3 of Rule 1-A, is subject to the satisfaction of the Court. The reasons given, therefore, must be satisfactory. The leave of the Court shall not be for just mere asking. Further, such reasons must be justifiable and prima facie believable and also be capable of rendering justice by deciding all the issues, particularly in a suit for partition, deciding the rights of all the parties once for all.
8. Admittedly, in the written statement, the main plea was, earlier partition. But, no documentary proof was pressed into service along with the written statement. It is usual that the defendants may not be in a position to furnish all the documents along with the written statement for various reasons, may be such documents could not be traced out or they may be in somebody's custody etc.
9. In the instant case, the specific stand of the third defendant is that originally the documents were in the custody of the first defendant and after his death, while they were searching his belonging, certain documents, which could throw some light upon their defence that there was an earlier partition, were traced out. These documents might be crucial for the defendants to establish their case.
10. Further, it is to be seen that the Appellate Court has power under Order 41 Rule 27 CPC to receive the documents as additional evidence and can examine the same and if need be, take into account those documents for rendering the judgment in favour of either of the parties or remit the matter back to the Trial Court for fresh consideration under Order 41 Rules 23, 24 and 25 CPC. In such a case, the same would amount to duplication and multiplication of the litigation.
11. Furthermore, when such a power to receive the documents was provided by the Code under Order 41 Rule 27, independently, there cannot be any fetter created on the Court of first instance, which is to deal with the subject-matter involved in the suit and decide the rights of the parties after conducting a trial. In fact, sub-rule (3) of Rule 1-A is a provision conferred on the Trial Court and is akin to the power vested with the Appellate Court under Order 41 Rule 27 CPC.
12. The learned Counsel for the petitioner further contends that if the application filed by the respondent is dismissed, the same can be a subject-matter in an appeal under Section 105 CPC, but on the other hand, if the application is allowed by the Trial Court, the same cannot be appealed again. This submission cannot be countenanced in the teeth of the intention, employed under sub-rule (3) of Rule 1-A of Order VIII read with the jurisdiction of the Appellate Court under Order 41 Rule 27.
13. It is further contended by the learned Counsel for the revision petitioner that in the cross-examination, the 3rd defendant had stated that the documents, which were sought to be received in evidence, were not in his possession. In this regard, it is to be seen that the mere statement by the 3rd defendant that the documents were not in his possession does not mean that the documents were traceable. In the affidavit, filed in support of the application it was stated that the documents were originally in the custody of the 1st defendant. Subsequently, while searching for his belongings, the present documents could be traced. Therefore, I do not find any real divergence in the stand taken by the 3rd defendant.
14. For the foregoing reasons, 1 do not find any material irregularity or jurisdictional error in the impugned order. Accordingly, the impugned order does not warrant any interference. However, it is needless to say that the plaintiff would be given an opportunity to lead rebuttal evidence, if need be and so chooses.
15. In the result, the civil revision petition is dismissed. No costs.