JUDGMENT
A.S. Naidu, J.
1. Whether a defendant is required to enclose all the documents, upon which he bases his defence or relies upon in support of his defence or claim for set off or counter claim along with a list when the written statement is presented by him, is the point raised in this case.
2. The petitioner as plaintiff filed T.S. No. 114/1996 corresponding to T.S. No. 239/2001 in the Court of Civil Judge (Jr. Division), Kendrapara praying for a declaration of his right, title and interest as well as for permanent injunction against the defendant-opposite parties.
3. The opposite parties appeared and filed their written statement. They relied upon nine documents in the written statement. On the basis of the pleadings, issues were framed and the case was ready for trial. At that juncture a petition was filed by the plaintiff for issuance of a direction to the defendants to produce all documents referred to in their written statement on the ground that unless documents are filed in Court before witnesses are examined. it would cause irreparable prejudice to the plaintiff to lead evidence. The said petition has been rejected by the Civil Judge (Jr. Division), Kendrapara by order dtd. 16.10.2006. Being aggrieved the petitioner-plaintiff has approached this Court.
4. Order 8, Rule 1-A of the Code of Civil Procedure (for short the “Code”) casts an onerous duty upon the defendant to produce documents basing upon which relief is claimed or are relied upon by him. Order 8, Rule 1-A Sub-rule (2) stipulates that where any document is not in possession or power of the defendant, he shall state in whose possession or power it is. Sub-rule (3) of the said order clearly mandates that if a document which ought to be produced in Court by the defendant under Order 8, Rule 1-A, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
5. A reading of Order 8, Rule 1-A on the whole leads to the conclusion that the intention of the legislature is that all the documents upon which the defendant bases his defence or relies upon in his written statement should be not only specified in a list but also copies of the said document ought to be produced in Court along with the written statement. The only exception being if any document is not in the possession of the defendant, he must state in whose possession the document is.
6. Order 8, Rule 1-A(3) further stipulates that if a document which ought to be produced in Court by the defendant and has not been produced the same shall not be accepted in evidence at the time of hearing of the suit without leave of the Court. Thus in consonance with Order 8, Rule 1-A of the Code a Court cannot compel a defendant to file a document. The consequence of non-filing of a document is specified in Sub-rule (3) itself which stipulates that if the document is not filed it shall not be received by the Court at the time of hearing of the suit, without leave of the Court.
Hearing of a suit as has been held by the Supreme Court in the case of Ajendraprasadji N. Pande and Anr. v. Swami Keshavprakeshdasji N. and Ors. reported in 2007 AIR SCW 513 commences when the issues are settled and the case is set down for recording of evidence.
7. Reading of the entire Section vis-a-vis other provisions thus leads to an irresistible conclusion that if the defendants have not filed the documents which they ought to have produced in Court along with the written statement, they shall not be permitted to do so without leave of the Court. The discretion thus vests upon the Court either to accept the documents, or not after commencement of trial. Law is well settled that a discretion should not be exercised indiscriminately or capriciously, a Court is required to visualize the situation and only if ft is satisfied that non-filing of the document was, for some reason or other, beyond the control of the defendants and there was sufficient reason, or non-filing was not bona fide and was aimed to prejudice the plaintiff and pass such orders as deemed just and proper. In view of the aforesaid settled legal position, this Court find that the Court below has not committed any error in rejecting the petition filed by the plaintiff for calling upon the defendants to produce the documents relied upon in the written statement. Law is well settled that consequence of non-filing of documents shall be dealt with in consonance with Order 8, Rule 1-A(3) of the Code.
The Writ Petition is accordingly disposed of.