Sanjay Kumar vs Rahul Alias Raj Kumar

U.C. Maheshwari, J.—The petitioners/defendants have filed this petition being aggrieved by the order dated 11.09.2013 (Annexure-P-10) passed by IInd Civil Judge Class-II, Gardarwara in Civil Original Suit No. 35-A/12, whereby, their application filed under Order 8 Rule 1(3) of CPC., permitting them to produce the annexed documents on record, has been dismissed. Petitioner''s counsel after taking me through the papers placed on the record along with the impugned order argued that in the available scenario of the matter so also in the light of the defence raised by the petitioners'' counsel in the written statement, such documents were relevant and, therefore, the impugned application ought to have been allowed by the trial Court, although the same was filed at belated stage after recording the deposition of the defence witness-Sanjay Kumar. But in the available situation, for taking the annexed documents on record, the other side would have been compensated by imposition of the cost but in any case, the petitioners should not have been deprived to produce the aforesaid documents. He also argued regarding relevancy of such documents with the case and prayed for admission and allowing this petition.

On the other hand, responding the aforesaid arguments, counsel of the respondent no. 1, by justifying the impugned order said that, the same being based on proper appreciation of the factual matrix of the case, it does not require any interference at this stage. He further said that after closing the evidence of the plaintiffs, the cross-examination of the aforesaid defendant witness has also been over and thereafter, in order to cure the lacunas left by the petitioners in the matter, the aforesaid documents have been placed on the record with the impugned application at very belated stage while, the same were very well in the knowledge of the petitioners from the day first when the written statement was filed. He also said that, on taking such documents on record, the right of the respondents/plaintiff may be seriously prejudiced and firstly prayed for dismissal of the petition and in alternative, prayed that if this petition is allowed and the petitioners are permitted to produce such documents and the same are taken on record, then in that circumstances, the opportunity to produce the documents in rebuttal as well as to examine the witnesses in rebuttal after recording the evidence of the petitioners/defendants be extended to the respondent no. 1/plaintiff and prayed to pass appropriate order accordingly.

Having heard, keeping in view their arguments advanced, I have carefully gone through the papers placed on the record along with the impugned order.

True it is that, the impugned papers annexed with the impugned application, were very well in the knowledge of the petitioner on the day first when the written statement was filed so at subsequent stages when the issues were settled between the parties and on the date of cross-examination the witness of the respondent no. 1, but the same were not filed. As such the same were filed after cross-examining the aforesaid witness of the petitioners/defendant because the situation to file such document has been arisen in cross-examination of this witness of defendant, but I am of the considered view that mere on account of the aforesaid, when the matter is pending before the trial Court at the stage of recording the defendant evidence, the petitioners should not be deprived to file such documents. In such premises, in order to do justice between the parties, instead to dismiss such application, such documents ought to have been taken on record by the trial Court and permit the petitioner to adduce the evidence in support of the same and in order to compensate the other side, the trial Court could have impose some cost in this regard.

In the aforesaid premises, by setting aside the impugned order Annexure-P-10, the impugned application of the petitioner filed under Order 8 Rule 1(3) of CPC., subject to payment of cost of Rs. 1,000/- (Rs. One thousand) is hereby allowed and the annexed documents are taken on record. The payment of the cost shall be condition precedent before the trial Court to take such documents on record.

However, in the available circumstances, the respondent no. 1/plaintiffs also extended a liberty to file the documents in rebuttal of the aforesaid documents filed by the petitioners. Besides this, such respondent is also extended a liberty to adduce the evidence in rebuttal of the aforesaid documents, through witnesses after closing the evidence of the petitioners/defendant in the impugned suit. Accordingly this petition is allowed with aforesaid observations, directions and liberty.

Certified copy as per rules.