ASOPA, J. - (1.) BY this writ petition the petitioners seeks to challenge the order dated 13. 07. 2005 whereby the trial Court has refused to take photographs, negatives, water and electricity bills and ' house tax receipts of the shop whereon the business is being carried out by Satish Kumar, the son of the applicant landlord.
(2.) BRIEFLY stated the relevant facts of the case are that the respondent-plaintiff filed an application for eviction under Section 9 of the Rajasthan Rent Control Act, 2001 on the ground of personal bona fade necessity of his son and subletting. The petitioners filed reply to the aforesaid application. Along with the reply, some documents were also filed but due to inadvertence the aforesaid documents and partnership deed were not filed. Therefore, the petitioners filed an application under Order VIII Rule 1-A (3) read with 151, CPC with the prayer that leave may be granted to take the aforesaid documents on record. The respondent-plaintiff filed reply to the aforesaid application and stated that the documents are not relevant. The Rent Tribunal vide its order dated 13. 07. 2005 granted leave in respect of partnership deed holding the same as relevant and the other documents have not been taken on record holding the same as irrelevant. The submission of the Counsel for the petitioners is that the relevancy is not to be decided under Order VIII Rule 1-A (3) CPC and as simple leave is to be granted on the basis of judgment the fact whether the application has been filed bona fidely explaining the reason of not filing earlier or to delay the proceedings. Here in the instant case, there was no delay and there was bona fide mistake and, therefore, the Court ought to have taken all the documents on record. The learned Counsel for the Respondent No. 2 submits that as per Order VIII Rule 1-A (I) CPC, the documents which form the basis of his defence is to be filed along with the reply and the same rule will apply while seeking leave of the Court under Sub- rule ('3 ). Since, in the instant case, the Court has come to the conclusion that the document, are not relevant, therefore, it will not form the basis of defence/reply. The Court has not committed any kind of error.
(3.) HEARD learned Counsel for the parties, perused the record of the writ petition and further considered the rival submissions made by the parties. The provisions of Order VIII Rule 1-A CPC read as under Order VIII Rule 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, 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. A bare perusal of Order VIII Rule 1-A (1) CPC would reveal that only the documents which form the basis of his defence are to he filed along with a list with the written statement. Sub- rule (3) of the aforesaid order gave power to the Court to grant leave of the Court for production of documents which ought to be produced in Court by the defendant but is not so produced, therefore, the principles laid down in Sub-rule (1) of taking documents only which form the basis of defence will apply in case of Sub-rule (3) also. Therefore, it is permissible for the Court to examine the relevancy of the documents. ;