Hon’ble Alok Singh, J.

Defendant of original suit No. 59 of 2001, Shri Harish Chandra Pandey and others Vs. Sri B.D. Pandey and others, pending in the Court of Civil Judge (S.D.) has approached this Court by invoking jurisdiction of this Court under Articles 226/227 of the Constitution of India assailing the order dated 28.03.2008 passed by the learned Trial Judge whereby application moved by the defendant/petitioner herein paper No. 78-C requesting the trial court to return back the documents sought to be filed by plaintiff alongwith affidavit of PW3, was rejected.

2. Brief facts of the present case, inter alia, are that plaintiff filed OS. No. 59 of 2001 in the Court of Civil Judge (S.D.), Nainital seeking permanent prohibitory injunction against the defendant not to interfere by any means directly or indirectly in the possession of the plaintiffs over the property in question and further directing the defendant to hand over peaceful vacant possession of the piece of property to the plaintiff after removing illegal possession of the defendant within such time as stipulated by the Trial Court.

3. After framing of the issues, plaintiff had filed affidavit of PW1 and PW2 who were cross examined and thereafter filed affidavit of PW3, namely, Shri J.C. Tripathi, annexing therewith 35 documents. Defendant/petitioners herein moved an application, paper No. 78-C stating therein since none of the documents sought to be filed alongwith affidavit of PW3 were ever mentioned in the list nor copies thereof were filed under Order 7 Rule 14 C.P.C. and since none of the documents were ever produced on or before the framing issues under Order 13 Rule 1 of the C.P.C., therefore, plaintiff should not be permitted to place on record such additional documentary evidence. Therefore, document sought to be filed alongwith affidavit of PW3 should be returned to the plaintiff.

4. Learned Trial Court, having heard learned counsel for the parties, was pleased to dismiss the application so moved by the defendant, paper No. 78-C, vide impugned order herein. While rejecting the application, learned Trial Court has observed that as per proviso of Rule 4 Order 18 of the C.P.C., documents can be filed alongwith affidavit of the witnesses, however, admissibility and reliability of the documents can be looked into at the subsequent stage.

5. Feeling aggrieved, defendant/petitioner has approached this Court by way of this petition.

6. I have heard Mr. Sharad Sharma, learned Senior Counsel, assisted by Ms. Vandana Singh, Advocate appearing for the defendant/petitioner and Mr. B.C. Pandey, learned Senior Advocate assisted by Mr. B.D. Pandey, Advocate, appearing for the plaintiff/ respondents and have carefully perused the record.

7. Prior to the amendment of 1999 in the C.P.C., which were enforced from 2002, plaintiff and defendant were required to file documentary evidence on or before the framing of the issues and additional evidence could have been filed with the permission of the Court under Order 18 Rule 17A of the C.P.C.. After the amendment of 1999 in the C.P.C., Rule 17A of Order 18 has been repelled and Order 7 Rule 14, Order 8 Rule 1-A and Order 13 Rule 1 read as under:-

“Order 7 Rule 14- Production of document on which plaintiff sues or relies. – (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is present by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

[(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, withou