It is true that in accordance with Order 8
Rule 1(2) CPC the defendant is required to annex the
list of documents on which he relies while presenting
written statement, however, he may with leave of the
Court produce a document in evidence though not
entered in the list referred in Order 8 Rule 1(2) CPC.
Order 8 Rule 1(5) CPC gives a broad discretion to the
Court in this regard. Such discretion vested with the
Court is required to be exercised judiciously. If the
defendant gives good and sufficient reason for not
entering the document sought to be produced and called
for in the list annexed to the written statement, the
Court should grant him leave to do so as the basic
criterion to exercise the discretion given to a Court
is effective adjudication of the dispute between the
parties.
In the instant case by an order of this Court
defendants were permitted to lead evidence and in
pursuant thereto statements of Shir Purshottamlal (DW-
4) were recorded. Shri Purshottamlal in his statements
gave reference of the document which is a judgment of
competent court. The core issue involved in this suit
is with regard to adoption of plaintiff by
Bhawanishankar and the document referred by DW-4 is
having material bearing to the issue, therefore, the
document is important for effective adjudication of
the suit. No harm or prejudice is going to be caused
to the plaintiff in event of production of document
concerned or by calling certified copy of the same
from the office of the Assistant commissioner as the
plaintiff's right for rebuttal is open.
In view of whatever discussed above I am of
the considered opinion that the view taken by the
trial court while rejecting the application preferred
by the defendant petitioners by the order impugned is
erroneous.
Accordingly, the writ petition succeeds and
the same is allowed. The order impugned dated
21.11.2003 is quashed. The application preferred by
the defendant petitioners to bring photostat copy of
the judgment dated 6.6.1987 passed by Additional Chief
Judicial Magistrate No.3, Udaipur in Cr.Case No.188/85
titled as State of Rajasthan v. Shri Krishna Chandra @
Kanhaiyalal son of Nandlal Ameta, resident of
Brahampole, Hal Badi Pole, Hathithan, Udaipur is
allowed. The document referred above is ordered to be
taken on record and further the record from the office
of the Assistant Commissioner, Devsthan, Udaipur
containing certified copy of the judgment referred
above is ordered to be called for. The plaintiff
respondent shall be having a right to submit his
rebuttal with regard to the evidence produced by the
defendant.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
S.B.CIVIL WRIT PETITION NO.776/2004
Shantilal & Anr. v. Kanhaiyalal @ Krishna
Chandra & Anr.
Date of Order : 9th November, 2005
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
Citation;AIR2006 Rajasthan126
By this petition for writ validity and
propriety of the order dated 21.11.2003 passed by
learned Additional District Judge No.2, Udaipur is
questioned. The circumstances giving rise to present
petition are as follows:-
The respondent plaintiff filed a suit against
one Smt.Bhuribai widow of Shri Bhawanishankar Ameta
seeking a decree for partition of the alleged joint
property claiming himself to be adopted son of Shri
Bhawanishankar. Smt.Bhuribai denied the plaintiff's
claim with a specific assertion that Shri
2
Bhawanishankar never adopted the plaintiff as his son.
Smt.Bhuribai before her death on 2.11.1991 sold the
property in question to present petitioners by a
registered sale deed dated 12.9.1989, consequently the
petitioners became party to the suit and are now the
defendants.
By an order dated 14.7.1999 learned trial
court rejected an application preferred by defendant
petitioners under Order 13 Rule 2 CPC with a prayer to
take on record a photostat copy of the judgment dated
6.6.1987 passed by learned Additional Chief Judicial
Magistrate No.3, Udaipur in the case of State v.
Krishna Chandra @ Kanhaiyalal (original Cr.Case
No.188/85). The defendant petitioners wanted to bring
the copy of judgment referred above on record as
according to them the plaintiff was accused in that
case and defended himself as Kanhaiyalal @ Krishna
Chandra son of Nandlal Ameta.
The core question for adjudication before the
trial court in present suit is whether the plaintiff
is adopted son of Bhawanishankar Ameta and is entitled
to any right in the property in question, therefore,
the judgment dated 6.6.1987 passed by Additional Chief
Judicial Magistrate No.3, Udaipur was considered by
the defendant petitioners as a material piece of
evidence, hence they preferred the application under
Order 13 Rule 2 CPC. The said application was rejected
3
by the trial court on the grounds that (1)the
defendant appellant failed to gave sufficient reason
to produce photostat copy of the document instead of
its certified copy; (2)no reason sufficient to cause
delay in submitting application to bring the document
concerned on record is given; (3)the plaintiff shall
not be having opportunity to explain his stand about
document in the event of taking document on record at
this stage; and (4)the evidence of the defendant
already stood closed, therefore, now by bringing the
document on record the right to tender evidence cannot
be opened.
On 14.7.1999 the trial court fixed the suit
for hearing with an assumption that the evidence of
the defendant petitioners stands closed. The
petitioners, therefore, moved an application under
Section 151 CPC praying for to permit them to lead
evidence. The application so preferred stood rejected
by an order dated 19.10.2000, hence a revision
petition being No.75/2000 was submitted before this
Court wherein an order dated 26.2.2003 was passed
which reads as under:-
“The learned counsel for the petitioner
proposes a cost of Rs.2,000/- for being
permitted to lead evidence which has been
closed by the order which impliedly stated
that the evidence of the petitioner is
closed.
4
Learned counsel for the respondent
though has reservation about the proposition,
but in the interest of justice he accepts the
proposal that if the petitioner produces his
entire evidence before the trial court on
10.3.2003, then the petitioner may be
permitted to lead his evidence. If the entire
evidence is produced and a cost of Rs.2000/-
is given, the evidence of the petitioner will
be taken by the trial court at its
convenience. In case the petitioner fails, he
will not be entitled to any further
indulgence.
Put up on 21.3.2003.”
In pursuant to the order dated 26.2.2003 the
defendant petitioners produced their evidence and the
statements of one Shri Purshottamlal (DW-4) were
recorded by the trial court. Shri Purshottamlal stated
that at his instance a criminal case was lodged
against the plaintiff in which after trial he was
convicted. Proceedings in that case took place against
the plaintiff as Kanhaiyalal @ Krishna Chandra son of
Nandlal and in those proceedings plaintiff never
stated that he is son of Bhawanishankar. DW-4 Shri
Purshottamlal also stated that the original file of
the criminal case has already been weeded out,
however, a certified copy of the judgment dated
6.6.1987 passed by the Additional Chief Judicial
Magistrate No.3, Udaipur convicting the plaintiff was
produced by him before the Assistant Commissioner,
5
Devsthan in an another case between the plaintiff and
one Smt.Parwati Devi. Shri Purshottamlal DW-4 further
stated that he is having a photostat copy of the
judgment referred above and he can produce the same
before the Court.
The counsel for the defendant petitioners
then made a request to the trial court to get the
photostat copy of the judgment concerned exhibited.
The plaintiff objected the same, therefore, an
application was filed by the defendants permitting
them to produce photostat copy of the judgment dated
6.6.1987 passed by Additional Chief Judicial
Magistrate No.3, Udaipur as secondary evidence. The
defendant petitioners also prayed to call for the
record from the office of the Assistant Commissioner,
Devsthan, Udaipur which contains certified copy of the
judgment dated 6.6.1987 referred above.
The trial court by the order impugned dated
21.11.2003 rejected the application on the grounds
that an application under Order 13 Rule 2 CPC
preferred by the defendants to bring the same document
on record was earlier rejected, therefore, by a
separate application defendants cannot be permitted to
bring the same document on record, the defendants did
not mention the document now sought to be produced in
the list of documents filed under Order 7 Rule 18 CPC
and on the count that the evidence of plaintiff was
6
already closed, therefore, now he will not be having
any chance to tender explanation about the document.
Being aggrieved by the order aforesaid this writ
petition is preferred by the defendant petitioners.
Heard counsel for the parties and also
examined record of the petition.
Learned trial court dismissed the application
preferred by the defendant petitioners on various
grounds including the ground that defendants did not
mention the document now sought to be produced in the
list of documents filed under Order 7 Rule 18 CPC. In
fact Order 7 Rule 18 CPC is having no application in
present controversy as it relates to inadmissibility
of document not produced by the plaintiff at the time
of presenting plaint. Present one is a case which
relates to the document sought to be produced by
defendants. The trial court while rejecting the
application preferred by the defendants much relied
upon the order dated 14.7.1999 rejecting the
application under Order 13 Rule 2 CPC. While doing so
learned trial court totally ignored the order dated
26.2.2003 passed by this Court permitting the
defendant petitioners to produce evidence in pursuant
to which statements of DW-4 Shri Purshottamlal were
recorded. It is true that in accordance with Order 8
Rule 1(2) CPC the defendant is required to annex the
list of documents on which he relies while presenting
7
written statement, however, he may with leave of the
Court produce a document in evidence though not
entered in the list referred in Order 8 Rule 1(2) CPC.
Order 8 Rule 1(5) CPC gives a broad discretion to the
Court in this regard. Such discretion vested with the
Court is required to be exercised judiciously. If the
defendant gives good and sufficient reason for not
entering the document sought to be produced and called
for in the list annexed to the written statement, the
Court should grant him leave to do so as the basic
criterion to exercise the discretion given to a Court
is effective adjudication of the dispute between the
parties.
In the instant case by an order of this Court
defendants were permitted to lead evidence and in
pursuant thereto statements of Shir Purshottamlal (DW-
4) were recorded. Shri Purshottamlal in his statements
gave reference of the document which is a judgment of
competent court. The core issue involved in this suit
is with regard to adoption of plaintiff by
Bhawanishankar and the document referred by DW-4 is
having material bearing to the issue, therefore, the
document is important for effective adjudication of
the suit. No harm or prejudice is going to be caused
to the plaintiff in event of production of document
concerned or by calling certified copy of the same
from the office of the Assistant commissioner as the
plaintiff's right for rebuttal is open.
8
In view of whatever discussed above I am of
the considered opinion that the view taken by the
trial court while rejecting the application preferred
by the defendant petitioners by the order impugned is
erroneous.
Accordingly, the writ petition succeeds and
the same is allowed. The order impugned dated
21.11.2003 is quashed. The application preferred by
the defendant petitioners to bring photostat copy of
the judgment dated 6.6.1987 passed by Additional Chief
Judicial Magistrate No.3, Udaipur in Cr.Case No.188/85
titled as State of Rajasthan v. Shri Krishna Chandra @
Kanhaiyalal son of Nandlal Ameta, resident of
Brahampole, Hal Badi Pole, Hathithan, Udaipur is
allowed. The document referred above is ordered to be
taken on record and further the record from the office
of the Assistant Commissioner, Devsthan, Udaipur
containing certified copy of the judgment referred
above is ordered to be called for. The plaintiff
respondent shall be having a right to submit his
rebuttal with regard to the evidence produced by the
defendant.
No order as to costs.
( GOVIND MATHUR ),J.
kkm/ps.
Rule 1(2) CPC the defendant is required to annex the
list of documents on which he relies while presenting
written statement, however, he may with leave of the
Court produce a document in evidence though not
entered in the list referred in Order 8 Rule 1(2) CPC.
Order 8 Rule 1(5) CPC gives a broad discretion to the
Court in this regard. Such discretion vested with the
Court is required to be exercised judiciously. If the
defendant gives good and sufficient reason for not
entering the document sought to be produced and called
for in the list annexed to the written statement, the
Court should grant him leave to do so as the basic
criterion to exercise the discretion given to a Court
is effective adjudication of the dispute between the
parties.
In the instant case by an order of this Court
defendants were permitted to lead evidence and in
pursuant thereto statements of Shir Purshottamlal (DW-
4) were recorded. Shri Purshottamlal in his statements
gave reference of the document which is a judgment of
competent court. The core issue involved in this suit
is with regard to adoption of plaintiff by
Bhawanishankar and the document referred by DW-4 is
having material bearing to the issue, therefore, the
document is important for effective adjudication of
the suit. No harm or prejudice is going to be caused
to the plaintiff in event of production of document
concerned or by calling certified copy of the same
from the office of the Assistant commissioner as the
plaintiff's right for rebuttal is open.
In view of whatever discussed above I am of
the considered opinion that the view taken by the
trial court while rejecting the application preferred
by the defendant petitioners by the order impugned is
erroneous.
Accordingly, the writ petition succeeds and
the same is allowed. The order impugned dated
21.11.2003 is quashed. The application preferred by
the defendant petitioners to bring photostat copy of
the judgment dated 6.6.1987 passed by Additional Chief
Judicial Magistrate No.3, Udaipur in Cr.Case No.188/85
titled as State of Rajasthan v. Shri Krishna Chandra @
Kanhaiyalal son of Nandlal Ameta, resident of
Brahampole, Hal Badi Pole, Hathithan, Udaipur is
allowed. The document referred above is ordered to be
taken on record and further the record from the office
of the Assistant Commissioner, Devsthan, Udaipur
containing certified copy of the judgment referred
above is ordered to be called for. The plaintiff
respondent shall be having a right to submit his
rebuttal with regard to the evidence produced by the
defendant.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
S.B.CIVIL WRIT PETITION NO.776/2004
Shantilal & Anr. v. Kanhaiyalal @ Krishna
Chandra & Anr.
Date of Order : 9th November, 2005
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
Citation;AIR2006 Rajasthan126
By this petition for writ validity and
propriety of the order dated 21.11.2003 passed by
learned Additional District Judge No.2, Udaipur is
questioned. The circumstances giving rise to present
petition are as follows:-
The respondent plaintiff filed a suit against
one Smt.Bhuribai widow of Shri Bhawanishankar Ameta
seeking a decree for partition of the alleged joint
property claiming himself to be adopted son of Shri
Bhawanishankar. Smt.Bhuribai denied the plaintiff's
claim with a specific assertion that Shri
2
Bhawanishankar never adopted the plaintiff as his son.
Smt.Bhuribai before her death on 2.11.1991 sold the
property in question to present petitioners by a
registered sale deed dated 12.9.1989, consequently the
petitioners became party to the suit and are now the
defendants.
By an order dated 14.7.1999 learned trial
court rejected an application preferred by defendant
petitioners under Order 13 Rule 2 CPC with a prayer to
take on record a photostat copy of the judgment dated
6.6.1987 passed by learned Additional Chief Judicial
Magistrate No.3, Udaipur in the case of State v.
Krishna Chandra @ Kanhaiyalal (original Cr.Case
No.188/85). The defendant petitioners wanted to bring
the copy of judgment referred above on record as
according to them the plaintiff was accused in that
case and defended himself as Kanhaiyalal @ Krishna
Chandra son of Nandlal Ameta.
The core question for adjudication before the
trial court in present suit is whether the plaintiff
is adopted son of Bhawanishankar Ameta and is entitled
to any right in the property in question, therefore,
the judgment dated 6.6.1987 passed by Additional Chief
Judicial Magistrate No.3, Udaipur was considered by
the defendant petitioners as a material piece of
evidence, hence they preferred the application under
Order 13 Rule 2 CPC. The said application was rejected
3
by the trial court on the grounds that (1)the
defendant appellant failed to gave sufficient reason
to produce photostat copy of the document instead of
its certified copy; (2)no reason sufficient to cause
delay in submitting application to bring the document
concerned on record is given; (3)the plaintiff shall
not be having opportunity to explain his stand about
document in the event of taking document on record at
this stage; and (4)the evidence of the defendant
already stood closed, therefore, now by bringing the
document on record the right to tender evidence cannot
be opened.
On 14.7.1999 the trial court fixed the suit
for hearing with an assumption that the evidence of
the defendant petitioners stands closed. The
petitioners, therefore, moved an application under
Section 151 CPC praying for to permit them to lead
evidence. The application so preferred stood rejected
by an order dated 19.10.2000, hence a revision
petition being No.75/2000 was submitted before this
Court wherein an order dated 26.2.2003 was passed
which reads as under:-
“The learned counsel for the petitioner
proposes a cost of Rs.2,000/- for being
permitted to lead evidence which has been
closed by the order which impliedly stated
that the evidence of the petitioner is
closed.
4
Learned counsel for the respondent
though has reservation about the proposition,
but in the interest of justice he accepts the
proposal that if the petitioner produces his
entire evidence before the trial court on
10.3.2003, then the petitioner may be
permitted to lead his evidence. If the entire
evidence is produced and a cost of Rs.2000/-
is given, the evidence of the petitioner will
be taken by the trial court at its
convenience. In case the petitioner fails, he
will not be entitled to any further
indulgence.
Put up on 21.3.2003.”
In pursuant to the order dated 26.2.2003 the
defendant petitioners produced their evidence and the
statements of one Shri Purshottamlal (DW-4) were
recorded by the trial court. Shri Purshottamlal stated
that at his instance a criminal case was lodged
against the plaintiff in which after trial he was
convicted. Proceedings in that case took place against
the plaintiff as Kanhaiyalal @ Krishna Chandra son of
Nandlal and in those proceedings plaintiff never
stated that he is son of Bhawanishankar. DW-4 Shri
Purshottamlal also stated that the original file of
the criminal case has already been weeded out,
however, a certified copy of the judgment dated
6.6.1987 passed by the Additional Chief Judicial
Magistrate No.3, Udaipur convicting the plaintiff was
produced by him before the Assistant Commissioner,
5
Devsthan in an another case between the plaintiff and
one Smt.Parwati Devi. Shri Purshottamlal DW-4 further
stated that he is having a photostat copy of the
judgment referred above and he can produce the same
before the Court.
The counsel for the defendant petitioners
then made a request to the trial court to get the
photostat copy of the judgment concerned exhibited.
The plaintiff objected the same, therefore, an
application was filed by the defendants permitting
them to produce photostat copy of the judgment dated
6.6.1987 passed by Additional Chief Judicial
Magistrate No.3, Udaipur as secondary evidence. The
defendant petitioners also prayed to call for the
record from the office of the Assistant Commissioner,
Devsthan, Udaipur which contains certified copy of the
judgment dated 6.6.1987 referred above.
The trial court by the order impugned dated
21.11.2003 rejected the application on the grounds
that an application under Order 13 Rule 2 CPC
preferred by the defendants to bring the same document
on record was earlier rejected, therefore, by a
separate application defendants cannot be permitted to
bring the same document on record, the defendants did
not mention the document now sought to be produced in
the list of documents filed under Order 7 Rule 18 CPC
and on the count that the evidence of plaintiff was
6
already closed, therefore, now he will not be having
any chance to tender explanation about the document.
Being aggrieved by the order aforesaid this writ
petition is preferred by the defendant petitioners.
Heard counsel for the parties and also
examined record of the petition.
Learned trial court dismissed the application
preferred by the defendant petitioners on various
grounds including the ground that defendants did not
mention the document now sought to be produced in the
list of documents filed under Order 7 Rule 18 CPC. In
fact Order 7 Rule 18 CPC is having no application in
present controversy as it relates to inadmissibility
of document not produced by the plaintiff at the time
of presenting plaint. Present one is a case which
relates to the document sought to be produced by
defendants. The trial court while rejecting the
application preferred by the defendants much relied
upon the order dated 14.7.1999 rejecting the
application under Order 13 Rule 2 CPC. While doing so
learned trial court totally ignored the order dated
26.2.2003 passed by this Court permitting the
defendant petitioners to produce evidence in pursuant
to which statements of DW-4 Shri Purshottamlal were
recorded. It is true that in accordance with Order 8
Rule 1(2) CPC the defendant is required to annex the
list of documents on which he relies while presenting
7
written statement, however, he may with leave of the
Court produce a document in evidence though not
entered in the list referred in Order 8 Rule 1(2) CPC.
Order 8 Rule 1(5) CPC gives a broad discretion to the
Court in this regard. Such discretion vested with the
Court is required to be exercised judiciously. If the
defendant gives good and sufficient reason for not
entering the document sought to be produced and called
for in the list annexed to the written statement, the
Court should grant him leave to do so as the basic
criterion to exercise the discretion given to a Court
is effective adjudication of the dispute between the
parties.
In the instant case by an order of this Court
defendants were permitted to lead evidence and in
pursuant thereto statements of Shir Purshottamlal (DW-
4) were recorded. Shri Purshottamlal in his statements
gave reference of the document which is a judgment of
competent court. The core issue involved in this suit
is with regard to adoption of plaintiff by
Bhawanishankar and the document referred by DW-4 is
having material bearing to the issue, therefore, the
document is important for effective adjudication of
the suit. No harm or prejudice is going to be caused
to the plaintiff in event of production of document
concerned or by calling certified copy of the same
from the office of the Assistant commissioner as the
plaintiff's right for rebuttal is open.
8
In view of whatever discussed above I am of
the considered opinion that the view taken by the
trial court while rejecting the application preferred
by the defendant petitioners by the order impugned is
erroneous.
Accordingly, the writ petition succeeds and
the same is allowed. The order impugned dated
21.11.2003 is quashed. The application preferred by
the defendant petitioners to bring photostat copy of
the judgment dated 6.6.1987 passed by Additional Chief
Judicial Magistrate No.3, Udaipur in Cr.Case No.188/85
titled as State of Rajasthan v. Shri Krishna Chandra @
Kanhaiyalal son of Nandlal Ameta, resident of
Brahampole, Hal Badi Pole, Hathithan, Udaipur is
allowed. The document referred above is ordered to be
taken on record and further the record from the office
of the Assistant Commissioner, Devsthan, Udaipur
containing certified copy of the judgment referred
above is ordered to be called for. The plaintiff
respondent shall be having a right to submit his
rebuttal with regard to the evidence produced by the
defendant.
No order as to costs.
( GOVIND MATHUR ),J.
kkm/ps.
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