^( ^ HIGH COURT OF CHHATTISGARH. BILASPUP Writ Petition (227) No.6928 of 2009 PETCTIONERS/: (Defendants No.l <& 2) RESPONbENTS: 1. Pardeshi Prasad Kesharbani, S/o late Chandrashekhar, aged about 58 years, 2. Ramjee Lal Kesharbani, S/o late Chandrashekhar, aged about 45 years. Note: Both are residents of Ward No.6, Thahngu Gali, Sarangarh, Tahsil Sarangarh, Distt. Raigarh (C.G.). Versus 1. Smt. Samand Bai, W/o late Mahadeo Prasad Bani, aged about 70 years, 2. Shail Kumari, W/o Suresh Kumar Bani, aged about 45 years, 3. Avinash Kumar, S/o late Suresh Kumar, aged about 25 years, 4. Abhishek Kesharbani, S/o late Suresh Kumar, aged about 22 years, Note: All residents of near Naya Talab, Azad Chowk, Sjirangarh, Distt. Raigar h (C.G.). 5. Sharad Kumar, S/o late Mahadeo Bani, aged about 40 years, 6. Sapan Kumar, S/o Late Mahadeo Bani, aged about 28 years, Note: All residents of near Naya Talab, Azad Chowk, Sarangarh, Distt. Raigarh (C.G.). 7. Basanti Bai, b/o Mahadeo Bani, Wife of Kaushal @ Sadhuram, Village Nawagarh, Distt. Janjgir Champd (C.G.). 8. Neel Kumari, b/o Mahadeo Bani, W/o Santosh Gupta, r/o Bus Stand Ohamdha, Durg, (C.G.). 9. Krishna Bai Kesharbani, b/o Chatur Prasad Kesharbani, aged about 55 years, r/o Bhinodi, P.0. <& P.S. Sarsiwa, Distt. Raipur (C.G.). -7^ 10. Dulaurin Bai, Wd/o late Kaushal Prasad Kesharbani, Occupation House wife, r/o Azad Chowk, Sarangarh, bistt. Raigarh Plaintiffs No.l to 10 11. Smt. Leela Kesharbani. W/o Bheem Kesharbani, aged about 68 years, r/o Telipara, New Bus Stand Road, Bilaspur 12. Smt. Radha, W/o Ratan Lal Kesharbani, aged about 56 years, Cloth Shop, r/o village, P.0. Tata. P.S. Sarsiwa (Bilaigarh), Oistt. Raipur (C.G.) 13. Smt. Maya. W/o Anil Kesharbani. aged about 42 years, r/o Khushbu Readymade Gentre, Sadar Bazar, Sheorinarayan, bistt. Janjgir Champa (C.G.). Defendants No.3 to 5 {Petition under Article 227 of the Constitution of India} Present: Mr. Ratan Pusty. counsel for the petitioners. Sinale Bench: Hon'ble Mr. T.P. Sharma. J ORAL ORbER (26-11-2009) 1. This petition under Article 227 of the Constitution of India is for issuance of a writ in the nature of mandamus to the authorities. 2. Learned counsel for the petitioners submits that Civil Suit No.2A/2006 is pending between the petitioners <& the respondents before the Court of Additional bistrict Judge, Sarangarh before whom the petitioners have filed documents alon9 with application under Order 8 Rule 1A (3) of the C.P.C. and other applications for reexamination of the witnesses, but the Additional bistrict Judge. Sarangarh has rejected the application without any legality <& propriety. Learned counsel further submits that the documents are necessary for deciding the real controversy between the parties and the said documents are not tempered documents, they are certified copies of public documents obtained from public authorities. Learned counsel frankly admits that the suit was pending since 1996 and the defendants have made their appearance in the year 1997, since 1997 till 2009 the petitioners have not filed these documents before the authority, but only on the ground of delay or gross negligence, closing the opportunity of the petitioners would not be proper and the Court below has exceeded its jurisdiction while dismissing the applications. 3. I have heard learned counsel for the petitioners/perused the petition, copy of the order impugned, copy of the plaint and copies of other documents. 4. Admittedly, the petitioners had filed documents after lapse of about more than eleven years, after filing of their written statement. The law as stood in the year 1997 is Order 8 Rule 8Aof the C.P.C. which provides that duty of defendant is to produce all documents at the time of filing written statement and if a document which ought to be produced in Court by the defendant was not produced then, same shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. In the year 1999, the C.P.C. has been amended and this provision was deleted and an identical provision was inserted as Order 8 Rule 1A of the C.P.C. 5. In the present case, the suit is between the coparceners or co owners and the documents shown are certified copies of public documents which may be necessary to decide the real controversy between the parties. Therefore, only on the ground of delay of about more than eleven years, closing of opportunity of the parties is not just and proper. The Additional bistrict Judge, Sarangarh, has not considered the apptication in this aspect of the case and thereby closed the opportunity of tl^e petitioners herein/defendants. In order to secure the real justice between the parties, an opportunity to the petitioners herein/defendants is just and proper. 6. Consequently, the petition is allowed and the order dated 9-11-2009 passed by the Additional District Judge, Sarangarh retating to the application under Order 8 Rule 1A (3) read with Section 151 of the C.P.C. \( ^"j -7 ss^^,;^; ^ and other applications i.e. for reexamination of the witnesses are hereby quashed subject to payment of cost of Rs.4,000/- to the opposite party within fifteen days from today. Cost would be the condition precedent before further proceeding. If the cost is paid within fifteen days, the trial Court shall afford opportunity to the petitioners herein for producing documents and reexamination of the witnesses. No order as to costs. 7. I.A.No.l thus, stands disposed of. Srlrta Sd/- T.P. Sharma Judge </, JL