MALTI BAI Vs. PRAKASH KAUR
HIGH COURT OF CHHATTISGARH
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(1.) HEARD learned counsel for the parties.
By the instant petition, the petitioners have questioned the legality,
propriety and correctness of the order dated 23-3-2005 whereby the application
of the petitioners for taking additional documents on record has been rejected.
Brief facts leading to filing of this writ petition are that respondent
herein has filed the suit for specific performance against the petitioners in
which written statement has been filed and after framing of the issues,
evidence of the plaintiff has commended and the plaintiff's statement has
been recorded. At this stage, the petitioners herein moved an application
under order 8 Rule 1 of the C.P.C. for taking documents on record i.e. reply
of the notice dated 27-3-2002 sent by the advocate for the petitioners herein
to the advocate for the respondent herein, postal receipt of the same and the
acknowledgment. In the application Annexure-P/7 it was mentioned that at
the time of filing of the written statement the documents were not available
as the same were kept at some other place and that is why the defendants
were not able to produce the documents along with written statement. The
said documents are important and the delay is bonafide. The defendants were
not having any intention to delay the proceedings.
I have perused the impugned order, the main ground of rejection taken
by the trial Court is that the defendants at the time of filing of written statement
have not mentioned in the list about the existence of these documents.
Moreover, there is no reference about these documents in written statement,
In this connection, Order 8 Rule 1A (3) envisages that '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.' Perusal of para-21 of the plaint itself
shows that the plaintiff herself admitted that reply of the notice was sent on
behalf of defendants on 27-3-2002 and since the petitioners have not produced
reply of the notice with the plaint and that is why the petitioners herein want
to produce that document, therefore, genuineness of this document cannot
be doubted, Moreover, other documents i.e. postal receipt and
acknowledgment, which are Postal Department's documents, their
genuineness also cannot be doubted.
(2.) LEARNED counsel for respondent argued that on account of taking this document on record unnecessarily proceeding will be delayed as the statement
of the plaintiff has already been recorded.
As the matter relates to the specific performance of the contract in
which exchange of document becomes relevant and important. Therefore, in
order to decide the dispute between the parties and more particularly the
respondent even after admitting that reply of the notice has not been produced
the same on record, as such presence of document becomes more relevant
and for the delay the respondent can be compensated in terms of cost. Learned
trial Court while passing the impugned order, without considering the above
importance and para-21 of plaint of the petitioners, has rejected the
application. Therefore, the impugned order suffers from the illegality, as such
the same is liable to be set aside.
As far as other application is concerned, learned counsel for the
petitioners submitted that he is not pressing the same. The application is
dismissed as not pressed.
In the circumstances, the impugned order is quashed. The trial Court is directed to take these documents on record subject to payment of cost of Rs.300/- by the petitioners to the respondent. The petitioners herein are entitled
to tender these documents into evidence. However, if the respondent feels
that after evidence of the defendants it is necessary for her to give evidence
in respect of these documents is rebuttal, then the plaintiff will be entitled to
adduce the evidence.
With the direction aforesaid, the petition stands disposed of.
Consequently, M.(W.) P. No. 2439/2005 also stands disposed of.
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