S. Talapatra, J.

1. This is a petition filed under Article 227 of the Constitution of India against the order dated 17.03.2011 passed by the Munsiff No. 2, Kamrup, Guwahati in Title Suit NO. 198 of 2009. The impugned order as passed by the Munsiff No. 2, Kamrup, Guwahati, the prayer of the defendant No. 5 and 6, in the Title Suit No. 198 of 2009 for leave to produce some documents, marked by them as Exbt.B, Exbt.C, Exbt.D & Exbt.E was rejected. The petitioners made attempt to explain the non production in the appropriate stage by stating that the Principal, Central Training Institute, Civil Defence & Home Guards i.e. the defendant No.6 could not locate documents. Therefore, when those documents on discovery were handed over to the counsel along with the examination-in-chief under Order XVIII Rule 4 of the C.P.C. The Munsiff No. 2, Kamrup, Guwahati held that the defendants had not filed the documents marked as Exbt.B,C,D & E along with the pleadings. Even the defendant No. 5 & 6 did not seek any leave of the Court to allow them to introduce those documents and as such those documents were not received in the records but one document as marked Exbt.A was received, for the reason that the said document came into being in the pendency of the suit and the defendants obviously could not have produced it. As such the four documents were not received in the records. In the said order, it is recorded that those documents were not accepted for filing without seeking leave of the Court. The defendant No.5 & 6 thereafter filed a petition under Order VIII Rule 1A read with Section 151 of the C.P.C. seeking leave for filing the documents i.e. B, C, D & E stating interalia that the respondent No. 6 had assumed the office in the month of May, 2000. He was not abreast of the progress of the case and accordingly in a belated stage those documents were filed. The former Principal had retired after filing of the Written Statement and there was a dislocation in the administration. On discovery of the documents, the respondent No.6 placed those documents for production in the Court. It is further stated that if those documents were not allowed to produce in the records, it would cause miscarriage of justice.

2. Mr. B. Chakraborty, learned counsel appearing for the petitioners submitted that the impugned order has been passed by the Munsiff No.2, Kamrup mechanically, not considering the aspect that those documents would enable the Court in determining the real question in the controversy between the parties. The due diligence shall not come in the way of accepting the documents in view of the circumstances as narrated in the petition. Learned counsel for the petitioners also submitted that in the Written Statement the references of the documents have been elaborately made, but those were not catalogued as required. He submitted that the provisions of order VIII Rule 1-A of the C.P.C provide that

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, larger interest of the force 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.

The said provisions cannot be read as mandatory, rather it has to be constructed as directory in nature and for that purpose by the Code of Civil Procedure (Amendment Act), 2002. Rule 3-A of Order VIII of the C.P.C. has been engrafted.

(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.

3. On scrutiny of the grounds such leave for receiving the documents in the records was not considered. The documents not filed earlier or not catalogued in the Written Statement cannot be