The court emphasized that the omission of a specific rule does not necessarily bar the production of evidence at a later stage and highlighted the court's inherent power to permit the production of evidence under certain conditions.

Chandramauli Kr.Prasad, J.

1. Defendants-petitioners, aggrieved by that portion of the order dated 15.9.2005 passed by the Subordinate Judge, Second, Patna in Title Partition Suit no. 376 of 2000, whereby it declined to take certain documents on record, have preferred this application.

2. Short facts giving rise to the present application are that the plaintiffs-Opposite patty nos.1 to 4 filed the suit for partition of the joint family property. In the suit they filed application for grant of injunction under Order XXXIX Rule i of the Code of Civil Procedure. Defendants-petitioners filed show cause and also filed photostat copy of the documents on 28.9. 2000 and 16.1.2001. Plaintiffs prayer for injunction was rejected by order dated 21.2.2001. Issues were settled by order dated 13.3.2002 and the party were directed to file their documents. It seems that thereafter the suit was dismissed for default by order dated 10.10.2002 and ultimately restored by order dated 29.12.2004.

3. Plaintiffs alongwith the list of documents filed documents on 3.3.2005 and their evidence commenced from 2.6.2005. Defendants-petitioners alongwith the list of documents filed the documents which included documents whereof photostat copies were filed earlier. Plaintiffs objected to their admission. Defendants-petitioners then filed application on 30.8.2005 for grant of leave to take the documents in evidence.

4. By reason of the impugned order though documents whereof photostat copies were filed earlier have been taken in evidence but the other documents not taken in evidence. While doing so, it observed that since Order XVIII Rule 17A of the Code of Civil Procedure, hereinafter referred to as the Code, has been omitted by Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999), there is no scope for production of such documents at the stage of trial, not disclosed at the time of presenting written statement or before settlement of issue.

5. Mr. Prem Kumar Verma. appearing on behalf of the petitioners submits that Order XVIII Rule 17A of the Code has been omitted but despite that the Court is possessed of the power to receive documents in evidence at a later stage also. In this connection he has referred to the provisions of Order VIII Rule 1-A of the Code of Civil Procedure, particularly sub-rule (3).

6. Mr. Dronacharya, appearing on behalf of the Opposite party, however, contends that once the provision of Order XVIII Rule 17A has been omixted, the Court below rightly did not receive in evidence the documents filed at the later stage.

7. It is relevant here to state that Order XVIII Rule 17A of the Code has been omitted by Sec.27(iii) of the Code of Civil Procedure (Amendment) Act, 1999. Simultaneously Order VIII Rule 1-A was substituted by Sec.18(ii) of the said Amendment Act. Further by Section 9(ii) of the Code of Civil Procedure (Amendment) Act, 2002, for sub-rule (3) of Rule 1-A of Order VIII inserted earlier was substituted. All these amendments have been made effective from 1.7.2002. As a result of all these amendments Order VIII Rule 1-A of the Code now exists as follows:

"1-A. 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)