Skip to content


Biswanath Satpathy and ors. Vs. Subarna Dibya and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 329 of 1973
Judge
Reported inAIR1975Ori89; 40(1974)CLT1021
ActsCode of Civil Procedure (CPC) , 1908 - Order 8, Rule 1(2) (as applied in State of Orissa) - Order 13, Rules 1 and 2
AppellantBiswanath Satpathy and ors.
RespondentSubarna Dibya and anr.
Appellant AdvocateR.C. Mohanty, Adv.
Respondent AdvocateA. Das, Adv.
DispositionRevision allowed
Excerpt:
.....173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 3. the pertinent question for consideration is whether in view of the failure of the petitioner to comply with the provisions of order 8, rule 1 (1), civil procedure code (orissa amendment) and order 13, rule 1, civil procedure code the document can be admitted by the court at the trial stage. thus, it is clear that the petitioners failed to comply with the provisions of order 8, rule 1 (1) and order 13, rule 1, civil procedure code. rule 2 of order 13, civil procedure..........to in the written statement filed by petitioner no. 2 as required under order 8, rule 1 (1), civil procedure code (orissa amendment); that it was not genuine and that there was no sufficient ground for accepting the document at the belated stage. these contentions prevailed with the learned munsif who refusd to admit the document in evidence. it is urged on behalf of the petitioners that the learned munsif acted with material irregularity in not considering their petition showing cause of late production of the document.3. the pertinent question for consideration is whether in view of the failure of the petitioner to comply with the provisions of order 8, rule 1 (1), civil procedure code (orissa amendment) and order 13, rule 1, civil procedure code the document can be admitted by.....
Judgment:
ORDER

P.K. Mohanti, J.

1. This Civil Revision is directed against an order of the learnedMunsif, Nayagarh refusing to admit in evidence a deed of adoption filed by petitioner No. 2 in course of trial of Title Suit No. 5/76/34 of 1972/68.

2. Opposite Parties Subarna Dibya and Rajani Dei are the widow and daughter, respectively, of late Somnath Satpathy. They filed the suit for partition against the petitioners. Petitioner No. 2, Banambar Satpathy, who is the natural born son of petitioner No. 1 Biswanath Satpathy filed written statement claiming himself to be the adopted son of the said Somanath Satpathy. The suit was filed on 17-7-1968 and Petitioner No. 2 filed his written statement on 16-3-1970. Trial of the suit commenced on 30-7-1973. During his cross-examination on 6-8-1973, P.W. 5 was confronted with his signatures on a deed of adoption said to have been executed by Somnath Satpathy on 15-2-1954. He admitted the signatures which were marked as Exts. B and C. When the petitioners' Counsel put some other questions about the document, the Counsel for the plaintiff-opposite parties raised objection to its admissibilty. The objections were that the document had not been referred to in the written statement filed by Petitioner No. 2 as required under Order 8, Rule 1 (1), Civil Procedure Code (Orissa Amendment); that it was not genuine and that there was no sufficient ground for accepting the document at the belated stage. These contentions prevailed with the learned Munsif who refusd to admit the document in evidence. It is urged on behalf of the petitioners that the learned Munsif acted with material irregularity in not considering their petition showing cause of late production of the document.

3. The pertinent question for consideration is whether in view of the failure of the petitioner to comply with the provisions of Order 8, Rule 1 (1), Civil Procedure Code (Orissa Amendment) and Order 13, Rule 1, Civil Procedure Code the document can be admitted by the Court at the trial stage. The scheme of the Code of Civil Procedure is such that production and inspection of documents should be completed before the case is taken up for hearing on evidence. Production of documents at a late stage causes dislocation of business of the Court and harassment to the party against whom the documents are sought to be used. Order 8, Rule 1, Sub-rule (2) as inserted by Orissa Amendment runs as follows:

'The defendant shall file with his written statement a list of all the documents (whether or not in his possession or power) on which he relies as evidence in support of his defence.'

The deed of adoption has not been referred to in the written statement filed by petitioner No. 2 and no list of documents has been appended to the same.

Order 13, Rule 1 (1), Civil Procedure Code provides as follows:

'The parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.'

On a reference to the order sheet of the lower court records it appears that the suit was posted to 14-2-1969 for settlement of issues and hearing under Order 10, Civil Procedure Code. The issues were settled on that date after hearing the parties, but no document was filed by either party. Thus, it is clear that the petitioners failed to comply with the provisions of Order 8, Rule 1 (1) and Order 13, Rule 1, Civil Procedure Code.

4. These provisions do not however, exclude the discretion of the Court to receive the document at a subsequent stage of the suit. Rule 2 of Order 13, Civil Procedure Code enacts that no documentary evidence in possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1, shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing. If a document appears to be relevant and not such as should be prohibited from coming on the record, the Court may take a lenient view and admit the document even though filed at a late stage on payment of costs unless the party filing the document is grossly negligent or the document appears to be of suspicious nature.

5. The learned Munsif has not at all considered the above aspects. He acted with material irregularity in rejecting the document ignoring the provisions of Order 13, Rule 2. Civil Procedure Code.

6. I would, therefore, allow the Civil Revision and set aside the impugned order. The learned Munsif is directed to consider the grounds stated in the petition dated 6-8-1973 and dispose of the matter in the light of the above observations. Parties are directed to bear their own costs of this revision.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //