CRP 198/2008 BEFORE HON’BLE MR JUSTICE HN SARMA The challenge made in this revision petition is the order dated 3.5.08 passed by the leaned Munsiff, Kaliabor, Nagaon in Title Suit No. 12(K)/06 hereby expungi ng the documents produced by the defendant/petitioner which were marked and exh ibited as Ext. 1,2 and 3. I have heard Mr. D. Mazumdar, learned counsel for the petitioners. In view of the order proposed to be passed, I do not feel it necessary to wait f or service of summon of notice upon the respondents/plaintiffs. The petitioners are the defendants in the aforesaid suit. They contested the suit by filing writ ten statement and at the time of filing their written statements, three documen ts which are the subject matter of dispute in this petition were not produced as required under Order 8 Rule 1(A) 3 CPC. Those documents appeared to have been n ot filed at that time or before the settlement of the issues. Subsequently, at t he time of submission of the evidence by way of affidavit, those documents were produced and marked as Exbts 1,2 and 3. The plaintiffs thereafter filed an appli cation intimating the court and those documents are filed without the leave of t he court as required under Order 8 Rule 1(A)3 of the CPC. In the meantime, the defendants in order to regularize the events so happened fi led an application praying for leave of the court to produce and submit the docu ments in the suit as documentary evidence on 5.4.08. The learned Munsiff took up the objection so raised by the plaintiffs as exhibited vide Exbts. 1, 2 and 3 a nd by the impugned order dated 3.5.08 allowed the prayer of the plaintiffs and t hose Exbts. 1,2 and 3 were expunged. By the said order the application of the p etitioner praying for leave of the court to submit those documentary evidences a nd for filing objection by the plaintiff was fixed on 17.5.08. It is submitted by Mr. Mazumdar that the learned trial court by going into the m erit of those documents, more particularly, regarding its admissibility has comm itted jurisdictional error in passing the order. According to the learned counse l, the leave application of the defendants/petitioners and objection of the plai ntiffs ought to have been disposed of on the same day by common order. I have considered the submission made by the learned counsel. At the outset it is observed that although the leanred Munsiff has mentioned in the impugned order that it is not necessary that the documents must be filed at the time of filing of the written statements by the defendants/petitioners but t he same appears to be against the provision contained in Order 8 Rule 1(A) of th e CPC. Rule 8 Rule 1(A) CPC cast an obligation upon the defendant to the effect that where the defendant, in his written statement, claims a set-off or makes a counter-claim based on a document in his possession or power, he shall enter su ch documents in a list and shall produce it in court at the time of presentation of the written statement and shall at the same time deliver the document or cop y thereof to be filed with the written statement. Order 8 Rule 1 A (3) gives li berty to the defendant to file such documents only with the leave of the court. Again order 13 Rule 1 provides that original documents are to be produced at the time or before the settlement of the issues but Order 13 Rule 1(3) provides tha t the provisions of Order 13 Rule 1 is not application when the documents are pr oduced for the cross-examination of the witnesses of the other side or handed ov er to a witness merely to refresh his memory. In the instant case, while dealing with the objection raised by the plaintiffs, the learned Munsiff has also observed to the effect that the law is clear accord ing to Section 65 of the Evidence Act that when primary evidence is available s econdary evidence cannot be given. Referring to this observation Mr. Mazudar sub mits that the exhibits 1,2 and 3 filed by the defendants/petitioner being the ce rtified copy, eventually those also may be rejected by the court. I do not consi der that the learned Munsiff while rejecting those documents to be admitted in e vidence as because those are certified copy of the sale deed. In view of the law as regards submission of certified copy of the documents in favour of the origi nal documents the same holds the field. From the impugned order it appears tha t the leave petition filed by the defendants/petitioners was considered by the l earned trial court in accordance with the law and after passing the order on t he leave petition, the subsequent order about the acceptance of the prayer of th e petition allowing him to file the documents at subsequent stage would be pass ed. In that view of the matter, I find that the present petition is premature one in asmuch as the subsequent order after disposal of the leave petition would be pas sed by the learned Munsiff. However, it is made clear that the observation made in the impugned order dated 3.5.08 by the learned Munsiff must be construed to have been made for the purpose of disposal of the suit application. The learned Munsiff shall consider and dispose of the prayer of the defendants/petitioners i n accordance with the provision of law. With the above observation, this revision petition stands finally closed.