Sunita Agarwal ORDER
Sunita Agarwal, J.
1. Heard Shri Prabhakant Shukla in person. The petitioner is plaintiff in the suit out of which the present petition arises.
2. The present petition is directed against the orders dated 1.4.2015 passed by the 1st Additional Civil Judge (S.D.) Kanpur Nagar and the order dated 3.10.2016 passed by the Additional District Judge, Kanpur Nagar on an application Paper No. 239-Ga moved by the plaintiff for rejection of application 111-Ga of the defendant to bring two documents namely trade tax return and power of attorney on record. The objection taken by the petitioner/plaintiff in application 239-Ga was that the said documents had been filed with much delay and they were not part of record of written statement and as such the defendant would be precluded from bringing them on record.
3. The short controversy being raised in the present petition is whether the defendant could be permitted to bring those documents on record by the Trial Court and the Court below had erred in granting leave to the defendant in admitting them in evidence. The petitioner namely Shri Prabhakant Shukla vehemently argued that in view of the mandate of Order VIII Rule 1A and Order XIII Rule 1 of the Code of Civil Procedure, 1908, the documentary evidence in original can be filed only of those documents, copies whereof have been filed along with the written statement. Under Order VIII Rule 1A, the defendant is under obligation to bring the documents in a list to be filed along with the written statement, on which he bases his defence. However, leave can be granted by the Court only in a case where the document was either not in possession or power of the defendant or it could not be produced by him despite best efforts. No such situation could be contemplated in the present matter. Moreover, there is no application of mind by the Trial Court before proceeding to admit the documents filed by the defendant.
4. As far as filing of document and admission thereof by the defendant, Order VIII Rule 1A and Order XIII Rule 1 as incorporated by Amendment of 1999 w.e.f. 1.7.2002 are relevant, and reproduced as under:-
"Order VIII Rule 1A:- Duty of defendant to produce documents upon which relief is claimed or relied upon by him.- (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the defendant under this rule, 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.
(4) Nothing in this rule shall apply to documents-
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory.
Order XIII Rule 1:- Original documents to be produced at or before the settlement of issues.-
(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.