The second opportunity to produce documents under Order VIII Rule 1A(3) is for those who have produced documents with the written statement and have accountable reasons for not producing certain documents. The purpose of producing documents with a list along with the written statement is to make the parties aware of the case they have to meet and to chalk out their defense before evidence is led.

JUDGMENT :

1. This petition is filed under Article 227 of the Constitution of India challenging an order dated 01.08.2022, passed below Exhibit-65 by the Additional Senior Civil Judge/Additional Chief Judicial Magistrate, Vadodara in Regular Civil Suit No. 614 of 2013, whereby application filed by the petitioner – defendant No. 1 seeking leave of the Court to produce documents as per the list submitted before the Court vide Exhibit-66, which came to be rejected, except two documents cited at serial No. 7 and 13, production of which respondent No. 1 – plaintiff has not objected to as recorded in the impugned order.

2. Respondent No. 1 – plaintiff filed aforesaid suit praying for declaration to the effect that the confirmation deed dated 17.03.2010 said to have been executed before Notary Public is forged one, containing false signature of the plaintiff and to declare it null and void. Pursuant to the suit filed and in response to the summons issued by the Court, the defendants in the suit, including the present petitioner – defendant No. 1 appeared and filed his written statement somewhere in the month of July, 2017. However, at the time of filing of the written statement, no list of documents as provided under Order VIII Rule 1A(1) of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) came to be filed. Though no date when issues were settled is furnished by learned advocate for the petitioner but the fact remains that issues were settled and thereafter deposition of plaintiff was submitted on affidavit and the defendant in the suit cross-examined the plaintiff on 25.07.2022. The respondent No. 1 – plaintiff filed a closing pursis on 27.07.2022 declaring closure of his evidence. Till that date, petitioner – defendant No. 1 never produced any documents even without seeking leave of the Court. On 03.09.2022, petitioner – defendant No. 1 tendered his examination-in-chief on oath though it is dated 01.08.2022. He produced a list Exhibit-66, which is annexed at page 122 of the petition seeking leave of the Court to produce the same vide application Exhibit-65, as referred to hereinabove dated 01.08.2022. Thus, it appears that the said examination-in-chief on oath came to be filed only after this petition is affirmed on 30.08.2022.

3. Exhibit-65 application, which is at page 131 of the compilation, refers that for the just decision of a case, certain documents, which are required, copies of certain documents, certified copies and a list of documents with originals produced in a cognate suit, the copy thereof was sought to be produced and leave was sought for from the Court for the production of the same. Over the said application Exhibit-65, learned advocates representing the parties have endorsed that since majority of the documents are copies and no originals were produced and majority of the documents are colour xerox, the production thereof was objected to and different endorsement were made on the said application objecting to the production thereof by the advocates for the parties.

After hearing the learned advocates for the appearing parties, the aforesaid impugned order came to be passed, which is under challenge before this Court.

4. Heard Mr. Dhaval Dave, Senior Advocate, learned Counsel, appearing with Mr. Tatvam K. Patel, learned advocate for the petitioner – defendant No. 1. He has submitted that considering the language of Order VIII rule 1A, Rule 1A(1) and (2) of “the Code”, it is not mandatory in view of sub-rule (3), which came to be inserted, whereby second opportunity is given to a party to produce the document, which ought to be produced, as referred to in sub-rule (1) of Rule 1A of Order VIII of “the Code”, of course with the leave of the Court.

4.1 He has further submitted that the procedural rules have to be construed liberally and in the interest of justice, unless the prejudice is shown by the other side because of the breach of the procedural lapses. He has further submitted that if a party