VIKRAMAJIT SEN, J.

( 1 ) THE QUESTION TO BE DECIDED IS WHETHER THE defendant HAS SUCCESSFULLY DISCLOSED A CASE FOR THE exercise IN ITS FAVOUR OF THE DISCRETION POSSESSED BY this COURT IN ITS FAVOUR UNDER ORDER VIII RULE 1 OF THE code OF CIVIL PROCEDURE AS AMENDED WITH EFFECT FROM 1. 7. 2002, AND IN PARTICULAR WHETHER ANY DISCRETION remains REPOSED WITH THE COURT AFTER THE EXPIRY OF ninety DAYS FROM THE DATE OF SERVICE OF SUMMONS ON THE defendant. THE RELEVANT PROVISIONS PRIOR AND POST THE amendment READ AS FOLLOWS: OLD PRESENT

R. 1. WRITTEN STATEMENT.-- (1) THE DEFENDANT SHALL, AT OR before THE FIRST HEARING OR WITHIN SUCH TIME AS THE court MAY PERMIT, PRESENT A WRITTEN STATEMENT OF HIS defence. (2) SAVE AS OTHERWISE PROVIDED IN RULE 8a, WHERE THE defendant RELIES ON ANY DOCUMENT (WHETHER OR NOT IN HIS possession OR POWER) IN SUPPORT OF HIS DEFENCE OR CLAIM for SET-OFF OR COUNTER-CLAIM, HE SHALL ENTER SUCH documents IN A LIST, AND SHALL,-- (A) IF A WRITTEN STATEMENT IS PRESENTED, ANNEX THE LIST to THE WRITTEN STATEMENT: PROVIDED THAT WHERE THE defendant, IN HIS WRITTEN STATEMENT, CLAIMS A SET-OFF OR makes A COUNTER-CLAIM BASED ON A DOCUMENT IN HIS possession OR POWER, HE SHALL PRODUCE IT IN COURT AT THE time OF PRESENTATION OF THE WRITTEN STATEMENT AND SHALL at THE SAME TIME DELIVER THE DOCUMENT OR COPY THEREOF TO be FILED WITH THE WRITTEN STATEMENT; (B) IF A WRITTEN STATEMENT IS NOT PRESENTED, PRESENT the LIST TO THE COURT AT THE FIRST HEARING OF THE SUIT. (3) 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. (4) IF NO SUCH LIST IS SO ANNEXED OR PRESENTED, THE defendant SHALL BE ALLOWED SUCH FURTHER PERIOD FOR THE purpose AS THE COURT MAY THINK FIT. (5) 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.

R. 1 WRITTEN STATEMENT.--THE DEFENDANT SHALL, WITHIN thirty DAYS FROM THE DATE OF SERVICE OF SUMMONS ON HIM, present A WRITTEN STATEMENT OF HIS DEFENCE: PROVIDED THAT WHERE THE DEFENDANT FAILS TO FILE the WRITTEN STATEMENT WITHIN THE SAID PERIOD OF THIRTY days, HE SHALL BE ALLOWED TO FILE THE SAME ON SUCH OTHER day, AS MAY BE SPECIFIED BY THE COURT, FOR REASONS TO BE recorded IN WRITING, BUT WHICH SHALL NOT BE LATER THAN ninety DAYS FROM THE DATE OF SERVICE OF SUMMONS.

R. 1a. DUTY OF DEFENDANT TO PRODUCE DOCUMENTS UPON WHICH relief IS CLAIMED OR RELIED UPON BY HIM.-- (1) WHERE THE defendant BASIS 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. (6) NOTHING IN SUB-RULE (5) SHALL APPLY TO DOCUMENTS produced FOR THE CROSS-EXAMINATION OF PLAINTIFF s witnesses OR IN ANSWER TO ANY CASE SET UP BY THE plaintiff SUBSEQUENT TO THE FILING OF THE PLAINT, OR handed OVER TO A WITNESS MERELY TO REFRESH HIS MEMORY. (7) WHERE A COURT GRANTS LEAVE UNDER SUB-RULE (5), IT shall RECORD ITS REASONS FOR SO DOING, AND NO SUCH LEAVE shall BE GRANTED UNLESS GOOD CAUSE IS SHOWN TO THE satisfaction OF THE COURT FOR THE NON-ENTRY OF THE document IN THE LIST REFERRED TO IN SUB-RULE (2 ). (4) NOTHING IN THIS RULE SHALL APPLY TO DOCUMENTS-- (A) PRODUCED FOR THE CROSS-EXAMINATION OF THE PLAINTIFF s witnesse

Click Here to Read the rest of this document