Point of Law: Parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself

JUDGMENT :

1. The present Appeal is filed by the appellant challenging the order dated 22.02.2011 passed by the 4th Additional District Judge, Junagadh in Regular Civil Appeal No.37 of 2019.

2. The short facts leading to this Second Appeal are as under :

2.1 The appellant-original defendant has filed Special Civil Suit No.168 of 2001 before the 6th Additional Civil Judge, Junagadh and prayed that the present appellant has to pay the due amount towards the bill raised by the respondent-plaintiff for the work completed for the paving of road alongwith the deposit amount. After conclusion of the said suit, learned 6th Additional Civil Judge, Junagadh by judgment and decree dated 22.2.2011 has partly allowed the Special Civil Suit No. 168 of 2001 and directed to pay the deposit amount of Rs.47,252/- alongwith 8% interest per annum from the date of filing of suit. The said judgment was challenged before the 4th Additional District Judge, Junagadh wherein, learned Judge rejected the appeal filed by the appellant.

2.2 Thereafter, the appellant also filed an application under Order XLI Rule 27 (1)(aa) of Civil Procedure Code (for short “CPC”) for production of the additional documents. It is the case of the appellant that the said document is material document with regard to payment of deposit of amount of Rs.47,220/- which amount was also to be paid to the respondent. The District Court has dealt with the said application in the judgment and it has observed in the judgment that the appellant has failed to establish any legal and valid ground to allow this application. It is further observed that it is the negligence on the part of the appellant and they have not taken proper care to produce the documents at the time of trial.

3. At the time of admission of this appeal, learned advocate for the appellant has contended that there is substantial question of law involved in this Second Appeal and the Appellate Court has erred in exercising jurisdiction vested upon it in not allowing the production of the documents under Order XLI Rule 27 (1)(aa) of CPC.

3.1 In support of his submission, learned advocate for the appellant has relied upon the judgment of the Apex Court rendered in case of Billa Jagan Mohan Reddy Vs. Billa Sanjeeva Reddy reported in 1994 SCC (4) 659, wherein, it is observed in paragraph 4 as under :

“4. Order 13, Rule 1 provides thus

"1. Documentary evidence to be produced at or before the settlement of issues.

(1) The parties or their pleaders shall produce, at or before the settlement of issues, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.

(2) The Court shall receive the documents so produced Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs."

It is clear from its bare reading that the parties or their counsel shall be required to produce all the documentary evidence in their possession or power which they intend to rely on to establish their right along with pleadings or before settlement of the issues. The court is enjoined under sub-rule (2) to receive such documents provided they are accompanied by an accurate list thereof prepared in the prescribed form. If they are not in the party's possession or custody, it shall be filed by the party along with an application to condone the delay in filing them. The explanation for delay is not as rigorous as one filed under Section 5 of the Limitation Act. These documents were not in the possession or custody of the appellants, but they have obtained certified copies from the Revenue Authorities and sought to be produced. It is undoubted that there is a delay in production of the said documents. But the trial court had stated that the application was filed at the stage of arguments, seeking to produce those documents and sought to rely upon the documents. It