Leniency in accepting vital documents for the decision of the case.

JUDGMENT :

Dr. A.K. Rath, J. - This is an application under Article 227 of the Constitution of India. The petitioner has challenged, inter alia, the order dated 23.6.2000 passed by the learned Civil Judge (Senior Division), Jagatsinghpur in T.S. No.125 of 1988. By the said order, learned trial court rejected the application of the petitioner to accept the document at the time of hearing of the suit.

2. Opposite party no.1 as plaintiff instituted T.S. No.125 of 1988 in the court of learned Civil Judge (Senior Division), Jagatsinghpur impleading the present petitioner and opposite parties 2 and 3 as defendants for declaration of title and permanent injunction. The case of the plaintiff is that Jhari Sahoo, father of defendant nos.2 to 4 had inducted defendant no.1 as a tenant in the year 1985. After his death, opposite party no.2 son of defendant no.2 realised the rent from the petitioner. While the matter stood thus, to press the legal necessity, the legal heirs of Jhari Sahoo transferred the suit schedule land in favour of plaintiff on 10.5.1988. When defendant no.1 disturbed in his possession, the suit was filed.

3. Pursuant to issuance of summons, defendant no.1 entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendant no.1 is that Jhari Sahoo incurred a loan of Rs. 4500/- from him in the year 1981 for the marriage ceremony of his daughter. Since loan was not paid, Jhari Sahoo entered into an oral agreement in the year 1982 with him to sell the land. After payment of Rs. 5500/- towards rest consideration amount, possession was delivered. Further, Jhari Sahoo received a sum of Rs. 5000/- from him for his treatment and executed a deed of agreement to sell the land in his favour. But then, after execution of the deed he expired. It is further stated that the defendant no.2 with an oblique motive executed a nominal and void sale deed in favour of the plaintiff, paternal uncle of defendant no.2. Neither any consideration money was paid nor any delivery of possession was made.

4. During examination of the plaintiff as P.W.4, defendant no.1 produced the unregistered agreement dated 5.1.1986 said to have been entered into between Jhari Sahoo and him and filed a petition to receive the said document as evidence. The plaintiff filed an objection to the same. Learned trial court came to hold that in the written statement there is a reference to the document in question. Defendant no.1 bases his defence upon the said document. He has not assigned any reason as to why he could not file the document in question earlier. Having held so, learned trial court by order dated 23.6.2000 rejected the application.

5. Heard Mr. N.P. Parija, learned counsel for the petitioner and Mr. B.K. Dagara, learned counsel for the opposite party no.1.

6. Order 8, Rule 1A CPC deals with duty of the defendant to produce document upon which relief is claimed or relied upon by him. The same is quoted hereunder:

" ORDER ? VIII

WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM

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 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) Nothing in this rule shall apply to documents-

(a) produced for the cross-examination of the pla