ORDER
S.S. Jha, J.
1. A preliminary objection is raised by the counsel for respondents that this revision is not maintainable against the order refusing to receive documents. He relied upon the judgment in the case of Jagjit Cotton Textiles Mills Ltd. and etc. v. Union of India and etc., reported in AIR 1990 Rajasthan 20. In support of his contention, he also relied upon the judgment in the case of Hemendra Chaudhary v. M/s Punjab National Bank and Ors., reported in AIR 1993 All. 49. This judgment of Hemendra Chaudhary relates to refusal of accepting documents and it is held that the order allowing is not a case decided under Section 115, Code of Civil Procedure. In this case, the documents were filed after the arguments were over; however, the application was allowed admitting the documents in evidence at the late stage of suit.
2. Considering the facts of this case, the defendant sought to produce certified copy of the Will in the evidence. He sought permission of the Court to produce certified copy of the Will. The defendant has filed written statement and pleaded about the Will, but the Will was not filed along with the written statement. The trial Court relying upon Order VIII, Rule 8-A, Code of Civil Procedure, held that the documents ought to have been filed along with the written statement and a list of reliance should have been submitted. The trial Court held that the defendant has failed to demonstrate the reason for not filing the Will along with written statement. The defendant has stated in his application that original Will is lost and he has received certified copy of the registered Will. The trial Court found that the Will was within the knowledge of the defendant. Though he filed written statement, filing of Will at the late stage is not permissible, therefore, the application was dismissed.
3. Learned counsel for the petitioner invited attention to Order VIII, Rule 1, Code of Civil Procedure, and submitted that under Order VIII, Rule 1(2)(a), the defendant is required to annex the list to the written statement of the documents relied upon by him. He invited attention to Order VIII, Rule 1(3), which provides that where any such document is not in possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. Order VIII, Rule 1(5) provides that a document, which ought to be entered in the list referred to in sub-rule (2), and which is not so entered, shall not, without the leave of the Court, be received in evidence on behalf of the defendant at the hearing of the suit.
4. Order VIII, Rule 8-A, Code of Civil Procedure, provides that it is the duty of the defendant to produce document, upon which reliance is placed by him. This Rule provides that where a defendant bases his defence upon a document in his possession or power, he shall produce it in the Court when the written statement is presented and shall, at the same time, deliver the document or a copy thereof, to be filed with the written statement.
5. In the present case, it is admitted that defendant has pleaded about the Will in his written statement, but copy thereof was not produced along with the written statement. No list of documents was filed stating that the document is not in his power or possession. However, when an application was filed, it was specifically stated that the original Will is lost, which shows that the original document is not in power or possession of the defendant. The defendant has produced certified copy, which could only be proved after calling original Will kept with the Sub-Registrar.
6. In this case, the defendant has pleaded the ‘Will’ in his written statement. Though there is no list of reliance of documents, from pleadings it appears that the defendant is basing his claim upon the Will. In the case of Smt. Buchibai v. Nagpur University, reported in 1946 NLJ 406 = AIR 1946 Nag. 377, it was held that mere fact that the document is produced at late stage is not sufficient for its rejection. The opposite party knowing the case of the defendant and case is not changed by production of document, in such event document should be admitted in evidence. The defendant has based his defence on the Will, therefore, for just decision of the case the Will could not be denied.
7. Learned counsel for the petitioner then placed reliance upon the judgment in the case of Billa Jagan Mohan Reddy and Anr. v. Billa Sanjeeva Reddy and Ors., reported in (1994) 4 SCC 659, and submitted that condonation of delay in filing documents need not be as rigorous as required under Section 5 of Limitation Act, and it is held that even at the delayed stage refusal by trial Court is an error. Learned counsel then placed reliance upon the judgment in the case of Puny v. Shanker, reported in 1961 MPLJ Note 185 – 1960 JLJ 1184, and submitted that this is the duty of the Court to take further evidence suo motu, if evidence is necessary for just decision of the case.
8. Considering the facts of the case and provisions of Order VIII, Rule 1, and Order VIII, Rule 8-A, Code of Civil Procedure, it is true that no list of reliance was placed by the defendant, but the defendant has based his claim on a Will. The Will is pleaded by the defendant, therefore, it will not be proper to deprive petitioner from filing the document.
9. As regards maintainability of revision it is true that mere refusal to accept the document or taking document on record is not revisable. However, if refusal occasions into failure of justice, which shall cause irreparable injury, then the order can be interfered with in the revision. In the present case, when the defendant has set up his claim on a Will and defendant is not permitted to produce and prove the Will, he shall suffer irreparable injury and the order so passed shall occasion into failure of justice. Therefore, the order passed by the trial Court is set aside. The petitioner’s application under Order XIII, Rule 2, Code of Civil Procedure, is allowed with costs of Rs. 200/-.
10. In the result, the revision succeeds and is allowed. The order of trial Court is set aside.
