D/L- 22

25/03/2025 Ct. No.-6 Aritra C.O. 1032 of 2025 Nijamuddin Vs.

Ramzan Ali & Ors.

Mr. Anshunath Chakraborty …for the petitioner Mr. Abhijit Ray Mr. Santu Nandy Mr. Md. Ayaan ….for the opposite party Affidavit of service filed in Court today is taken on record.

This application under Article 227 of the Constitution of India is at the instance of the defendant No.1 and is directed against an order being No.46 dated January 8, 2025 passed by the learned Judge, 3rd Bench, City Civil Court, Calcutta in Title Suit No.1447 of

2018.

By the order impugned the application under Order

8 Rule 1A (3) of the Code of Civil Procedure stood rejected.

The learned advocate appearing for the petitioner submits that due to bona fide mistake by the learned advocate of the petitioner herein the documents which the petitioner are now seeking to produce were not filed along with the written statement.

Mr. Ray, learned advocate appearing for the opposite party vehemently opposes the prayer of the petitioner for production of the said documents at this belated stage. Mr. Ray submits that in spite of a specific order passed by the learned trial judge directing the petitioner herein to produce the documents for the inspection of the same by the plaintiffs/opposite parties, the petitioner herein did not comply with such order. Heard the learned advocate for the parties and perused the materials placed.

It is not in dispute that no documents along with the written statement was filed. The opposite parties herein filed an application under Section 151 of Code of Civil Procedure praying for a direction upon the petitioner herein to furnish the authenticated documents and such application was allowed by the learned trial judge by an order dated April 20, 2022 by directing the opposite parties to inspect the authenticated documents mentioned in paragraph 9 of the written statement and the defendants were directed to produce and cause discovery and inspection of the aforesaid documents. It appears from the order dated June 10, 2022 that the defendant filed a list of document and also served copies of the same to the learned advocate for the plaintiffs/opposite parties herein. Mr. Ray would contend that the copy served upon the plaintiffs/opposite parties were photocopies of the documents and the same were not legible.

In the meantime, the petitioner has filed the affidavit in-chief annexing copies of the documents which the petitioner are now seeking to rely upon.

Order 8 Rule 1A of the Code of Civil Procedure deals with the duty of the defendant to produce documents upon which relief is claimed or relied upon by him. It states that where the defendant bases his defence upon a document or relies upon a 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 a document and a copy thereof, to be filed with the written statement. Sub-rule (2) of Rule 1A of Order 8 states that where such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. Sub-rule (3) of Rule 1A states that 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.

Thus upon a reading of Order 8 Rule 1A it is evident that if copies of the documents which the defendant seeks to rely upon is not filed along with the written statement the same cannot be received in evidence at the hearing of the suit without the leave of the Court. It is for such purpose that the petitioner has filed the instant application under Order 8 Rule 1A (3) of the Code of Civil Procedure.

The learned advocate for the petitioner places reliance upon a decision of the Hon’ble Supreme Court passed on October 13