P. Gokul vs Naveen Chandra M.

B. Manohar, J.—Petitioners are defendants in OS No. 13/2011 on the file of Senior Civil Judge, Holenarasipura. They being aggrieved by the order dated 29.9.2012 made on I.A. No. 9 in the said suit have filed this writ petition.

Respondent herein filed a suit in OS No. 13/2011 seeking for specific performance of agreement of sale dated 10.8.2009 in respect of suit schedule property. In the said suit, petitioners, who are defendants, filed written statement denying the averments made in the plaint and also contended that, apart from the registered agreement of sale, there is another agreement of sale dated 10.8.2009 between the petitioners and respondent. The sale consideration was fixed as Rs. 17,90,000/-. The plaintiff has not produced the said document. On the basis of the pleadings of the parties, the Trial Court framed the issue. The plaintiff examined himself as PW 1. During the course of defendants'' evidence, they filed I.A. No. 9 under Order 8 Rule 1(a)(3) C.P.C. for production of documents. In the application, it was contended that the original document was with the plaintiff and he has retained only xerox copy with the original signature. It was contended that the document was misplaced in the office of the Advocate. Subsequently, the document was traced and hence, he could not produce the same along with the written statement and sought for production of document. However, the Trial Court rejected I.A. No. 9. Being aggrieved by the said order, defendants have filed this writ petition.

Sri Shivakumar Gogi, learned Advocate appearing for the petitioners contended that the order passed by the Trial Court rejecting I.A. No. 9 is contrary to law. Petitioners cannot defend the case without producing the document. The said document is very much necessary to adjudicate the suit. Since it was misplaced in the office of the Advocate, it could not be produced along with the written statement. Subsequently, after tracing the document, the defendant sought permission of the Court to produce the said document. Hence sought for allowing the writ petition.

On the other hand, Sri Suneel S. Narayan, learned Advocate appearing for respondent argued in support of the order passed by the Trial Court contending that at the stage of evidence of the defendants, the said document cannot be produced and marked and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the order impugned and other relevant records.

The records clearly disclose that in a suit filed by the respondent seeking for specific performance of agreement of sale dated 10.8.2009 in respect of suit schedule property, the defendants wanted to mark one of the agreement of sale i.e. the main defence set up by the defendants. The said document could not be produced along with the written statement since it was misplaced in the office of the Advocate for the defendants and after thorough search, it was traced subsequently. During the course of evidence of the defendants, they filed I.A. No. 9 under Order VIII Rule 1A(3) C.P.C. seeking permission of the Court to produce the said document. The Trial Court without assigning any reason rejected I.A. No. 9 only on the ground that the original document is not produced. Hence, the said document cannot be marked in the evidence. It is the specific case of the defendants in the suit that the original agreement is with the plaintiff. The defendants have retained only the xerox copy of the agreement with the original signature. A reading of provision of Order VIII Rule 1A makes it clear that it is the duty of the defendant to produce documents upon which relief is claimed or relied upon by him. In the instant case, the said document ought to have been produced by defendants, but they could not produce the same along with the written statement. There is no bar for the Court to accept the said document in order to prove the case.

In the circumstances, I find that the reasoning assigned by the Trial Court rejecting I.A. No. 9 to accept the document is contrary to law. The defendants in the suit wanted to produce some documents as evidence. The Trial Court cannot reject the application at the threshold without considering the facts and circumstances of the case. Hence, I feel that the order passed by the Trial Court cannot be sustained. Accordingly, I pass the following:

ORDER

The writ petition stands allowed.

The order dated 29.9.2012 made on I.A. No. 9 in OS No. 13/2011 by the Senior Civil Judge, Holenarasipura, is set aside. The matter is remitted to the Trial Court to reconsider the matter afresh and to pass orders in accordance with law.