Damodar Rao vs M. Sreenivasulu

This revision petition is directed against the orders dated 6.01.2020 passed in I.A.No.1793 of 2019 in O.S.No.299 of 2017 on the file of the Learned V Additional Junior Civil Judge, Kukatpally, whereby the application filed by the petitioner-defendant seeking to receive original documents was dismissed.

The petitioner is the defendant and the respondent herein is the plaintiff.

The petitioner filed an application before the trial Court under Order VII Rule 1(a) read with 151 CPC, seeking to receive the original documents – (1) original urdu document bearing No.E275805, (2) translation, (3) original general power of attorney, (4) agreement of sale dated 26.12.1990, (5) original panchanama along with plan, (6) certified copies of phonies and gift deed and (7) photographs with CD for marking as exhibits.

The respondent-plaintiff filed suit seeking perpetual injunction against the defendant. P.Ws.1 and 2 were examined on behalf of plaintiff and when the case is posted for the evidence of defendant, he intended to file the above documents. He would state that the said documents were misplaced at his house at the time of filing the written statement and they were found and traced out when he was searching in the house as such he could not file the same along with the written statement.

Learned counsel for the plaintiff opposed the same by contending that the defendant did not disclose in his written statement that the said documents were misplaced. He cross examined PWs.1 and 2 at length without the said documents and it is not possible for him to examine them, and thus, his contention that they were not available with him at the time of filing the written statement is false.

Heard the learned counsel on either side.

The trial Court after considering the entire submissions advanced by both the counsel dismissed the said application. Aggrieved by the same the petitioner-defendant preferred this revision.

Learned counsel for the petitioner would submit that the trial Court misconstrued the judgment reported in MANAGING DIRECTOR, APSRTC, HYDERABAD V/s. P.V.SURYANARAYANA 2017 (4) ALD 733 and dismissed the application and that no prejudice would be caused to the respondent if the petitioner is permitted to produce the documents and he will also get an opportunity to cross-examine the witness. Except photographs the other documents are sought to be produced are registered deeds and he has shown sufficient cause for non-production of the documents and they are important for adjudication of the disputes and that the trial Court failed to appreciate the scope and ambit of the powers under Order VIII Rule 1 (a) of CPC and therefore requested the Court to set aside the order.

Learned counsel for the petitioner relied upon the case law in SUGANDHI (DEAD) BY LEGAL REPRESENTATIVES V/s. P.RAJKUMAR (2020) 10 SCC 706 in which it was held that sub-rule 3 provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the Court. The discretion conferred upon the court to grant such leave is to be exercised judiciously. Where there is no strait-jacket formula, this leave can be granted by the court on a good cause being shown by the defendant.

Per contra, learned counsel for the respondent would rely upon the case law in MANAGING DIRECTOR, A.P.S.R.T.C. V/S. P.V.SURYANARAYANA 2017 (4) ALD 733 in which it was held that in the absence of any pleadings that despite due diligence the documents could not be traced out and that the defendants did not state as to when the documents were traced out, the power of judicial review under Article 227 of the Constitution cannot be pressed into service. Yet another decision reported in SURESH IYAR V/s S.NAGESH [(2020) 0 Supreme (Telangana) 513 holding to the effect that the reasons have to be assigned by the defendant disclosing sufficient cause for his failure to produce the documents within the time stipulated in Rule 1-A of Order VIII CPC and if such reasons are not disclosed, the Court should not permit the defendant to file such documents later. Grant of leave by the Court is not for the mere asking nor is the Court a mere post office to receive documents even in the absence of any reasons furnished for failure to file the said documents along with the written statements.

Admittedly the suit is filed by the plaintiff for injunction against the defendant. Though the defendant filed his written statement on 22.01.2018, came up with an application to receive the documents at the time of his evidence on 08.01.2019, learned counsel for the petitioner stated that except the photographs the documents are registered documents and are necessary for the just decision of the case. As those documents were misplaced, the defendant could not file the same along with his written statement and recently when he searched his house he traced them out and he filed an application for grant of leave to receive the same.

Whereas the learned counsel for the respondent contended that the petitioner herein mentioned details of the above documents in the written statement and now saying that they were misplaced and filing them at a belated stage without any cogent reasons. He has not specifically stated that in spite of due diligence he could not trace them out and as such the trial court rightly dismissed the application.

No doubt, the petitioner herein filed the documents when the matter came up for the evidence of D.W.1. It is also brought to the notice of the Court that when D.W.1 was not produced for cross examination, his evidence was eschewed. He further stated that he is taking steps to set aside the said order of the Court in which D.W.1 evidence was eschewed. Even otherwise, he intended to mark the above documents through other witness and as such an opportunity is to be given to him for marking the documents which are crucial to decide the case on proper lines. Considering the nature of the documents filed by the petitioner, this Court finds that it is just and reasonable to give a reasonable opportunity to mark the documents as the respondent herein he is having sufficient opportunity to cross examine the witness. However, the petitioner has not filed the documents along with the written statement though he mentioned the details of documents in his written statement.

Therefore, this Court finds that it is just and reasonable to allow the revision subject to the condition of the petitioner paying Rs.4,000/- towards costs to the District Legal Services Authority within one month from the date of this order.

Miscellaneous Petitions, if any, pending in this revision shall stand closed in the light of this final order.