A.C.UPADHYAY - (1.)HEARD Mr. Somik Deb, learned counsel for the petitioners. None appears for the respondents despite service of notice.
(2.)BY this petition the defendant-petitioners have challenged the order dated 23.08.2010 passed by the learned Civil Judge, Junior Division, South Tripura, Udaipur in T.S. 05 of 2009 whereby an application under Order-8, Rule-1(A) Sub Rule-3 of CPC filed by the defendant-petitioners, for production of some vital and important public document was rejected. The learned trial Court held that "at the time of filing of the written statement the document in question was not listed and mentioned in the written statement, as to under whose possession the document was lying." Therefore, the learned Court below observed that after the closure of the evidence of the plaintiffs' witnesses, if the aforesaid document is permitted to be relied on by the defendant that may cause prejudice to the plaintiff. Accordingly, the leave sought for by the defendantpetitioners, to rely on the said document was denied and consequently the prayer was rejected.
Learned counsel for the petitioners submitted that by filing an application under Order-8, Rule-1(A), Sub Rule 3 of CPC, before the trial Court, the defendant-petitioners stated that the document, in question, sought to be relied on, is a public document, i.e. Khatian(record of right) pertaining to the defendant-petitioners, and it was not traceable in spite of vigorous and diligent search by the defendant-petitioners at the time of filing written statement. Further since the document in question was a Khatian (a record of right) relating to the disputed property, the defendant-petitioners expected it to be produced by the plaintiffs, but plaintiffs-opp. party did not produce it, instead relied on an old document. Learned counsel for the petitioners pointed out that since the document in question is a public document relating to the record of right of the petitioners it will have a vital bearing for just decision of the suit, pending between the parties.

Before we proceed to discuss further, it would be appropriate to depict hereinbelow the provisions of Order-8, Rule-1(A) CPC which reads as under: -

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 counterclaim, 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[(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.]

(3.)IT is apparent from the provisions of Order-8, Rule- 1(A) of CPC that the defendant has to disclose all those documents which are in possession or power on which he relies on. The defendant is also required to file all those documents which are in his possession and power together with his written statement and the defendant has to enter this document in a list and produce them in the Court along with the written statement. Accordingly, thereafter the defendant is required to deliver a copy of the documents to the plaintiff. If such document is not in the possession of the defendant, he has to state in whose possession or power it is. Rule-1(A)(3) provides that subsequent to filing of the written statement if the defendant wants to file any document he has to take leave of the Court. For obtaining leave of the Court, the defendant is required to justify by disclosing the reasons as to why the documents could not be filed together with the written statement and as to how the document is relevant for the purpose of just decision of the case. Therefore, the Court while considering the application of the defendant for grant of leave to file the document, has to see whether sufficient ground has been made out by the applicant for not filing the document earlier. This restriction has been put by the statute to avoid delay in adjudication of the dispute as because a party cannot keep on filing irrelevant document which are not helpful in adjudication of a dispute.
In support of his contention, learned counsel for the petitioner relying on the case of Kanda and Ors. Vs. Waghu reported in AIR(37) 1950 Privy Council 68 submitted that the Honourable Privy Council in the aforesaid decision held that a document can be introduced even after the written statement has been filed, however, subject to the pre-condition that the leave of the Court therefore must be obtained. In the aforesaid decision in Kanda and others Vs. Waghu (supra), the Honourable Privy Council propounded that when a particular document is an official record of undoubted authenticity it would be wise exercise of discretion to admit this document in evidence for just decision of the case. Learned counsel for the petitioner citing the decision of this Court in Projengton Momin Vs. Elwin Sangma and Anr. reported in AIR 1973 Gauhati 145(V 60 C 52) submitted that it has been observed therein that the Court has a wide discretion, in allowing production of documents, not enlisted in the list of documents, provided the genuineness thereof, is beyond the cavil of any dispute. In yet another case reported in (2007) 6 SCC 420, R. N. Jadi and Brothers and Ors. Vs. Subha-schandra his Lordship Balasubram-anyan, J in his concurring discussion, at para-12 of the report, has propounded that by the amending Act of 2002, Sub Rule-3 has been introduced in Order-VII, to provide that if a document is not included in the list of documents, or is not produced with the plaint, it can still be produced/received in evidence on behalf of the plaintiff at the time of hearing of the suit, provided he obtains a leave of the Court.