1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7896 OF 2009 1. Vishwanath s/o Pandharinath Kulkarni, Age: 66 years, Occ: Agriculture, R/o. Waladgaon, Tq. & Dist. Aurangabad. 2. Narhari s/o Pandharinath Kulkarni, Age: 50 years, Occ: Service and Agriculture, R/o. Waladgaon, Tq. & Dist. Aurangabad. ...PETITIONERS VERSUS 1. The State of Maharashtra, Through Collector, Aurangabad. 2. Public Works Department (PWD), Division Aurangabad (Concerning Waladgaon Region), Padampura, Aurangabad. Through Executive Engineer. ...RESPONDENTS ... Shri.C.S. Tembhurnikar, Advocate for Petitioners. Shri. V.B. Ghatge, A.G.P. for State Respondents. ... CORAM: K.K. TATED, J. DATE : 5TH JULY, 2010. 2 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the parties, the petition is taken up for final hearing at admission stage. 2. Heard learned counsel for the parties. 3. By this petition under Article 227 of the Constitution of India, the petitioners/original plaintiffs are challenging the order dated 09-04-2009 passed by the 2nd Joint Civil Judge, Senior Division, Aurangabad below Exhibit-18 in Regular Civil Suit No. 143 of 2009. By this order, the trial Court rejected the petitioners' application directing the respondents/original defendants to produce original documents as referred by them in Para. 16 of their Written Statement. 4. The petitioners filed R.C.S. No. 143 of 2009 in the Court of the Civil Judge, Senior 3 Division, Aurangabad for perpetual injunction against the defendants thereby restraining them, their any agencies and authority, employees or anybody claiming on its behalf including contractors etc., from a) interfering and obstructing the peaceful possession of the plaintiffs over the suit property, b) laying and forming road from the agricultural land of the plaintiffs/suit property without following due procedure of law, c) changing the nature of the suit property and from d) causing any sort of damages, nuisance to the rest of the portion of the agricultural land bearing Gat No. 28/1 & 28/2 and to the plaintiff. In the said suit, the respondents/original defendants filed their Written Statement on 24-02-2009 and denied the petitioners' claim. In Para-16, the respondents relied on the following documents. (i) Demand of Hon'ble M.P. Aurangabad Shri. Chandrakantji Khaire vide Lr. No.1721/2008 dated 02-05-2008. 4 (ii) The Collector, Aurangabad letter for preparation for plans and estimate letter No.598 dt. 12.5.2008. (iii) Executive Engineer, P.W. Division, Aurangabad letter NO. 3952 dated 23.5.2008 by this letter technical approval is given and submitted to Collector. (iv) Administrative approval by Collector, Aurangabad vide Lr. No. 822 dt. 30.6.2008. (v) Technical sanction by Executive Engineer, Public Works Division, Aurangabad vide Technical Sanction No. 234 dt. 1.7.2008. (vi) Letter to Federation of Majoor Sahakari Sanstha, Dist. Aurangabad. (vii) Allotment letter of Federation to Chairman Priyanka Majoor Sahakari Sanstha, Aurangabad Lr. No. 457 dated 19.7.2008. (viii) Work order given by Executive Engineer, P.W. Division, Aurangabad vide B1 NO. 291 of 2008-09 dated 1.8.2008. (ix) Inauguration function, Sarpanch Waladgaon, Tq. & Dist. Aurangabad. 5 5. The petitioners preferred application below Exhibit-18 in the trial Court for production of the documents as referred by the respondents/original defendants in Para-16 of their Written Statement. The petitioners prayed as under. "Defendants may kindly be directed to produce on record the sanction map showing the starting point, end point, width, position and location of the road in question as alleged in the written statement, accordingly be pleased to direct the production of entire documents as alleged in para. no. 16 of the say and written statement, within 7 days from the date of order in the interest of justice". 6. The said application was opposed by the respondents by filing their say dated 16-03-2009. The trial Court rejected the said application on the ground that it is the duty of the petitioners to prove their case. 7. The learned Counsel appearing on behalf 6 of the petitioners submits that in view of Order VIII Rule 1-A and Order XI Rule 14 of the Code of the Civil Procedure, the respondents are duty bound to produce the documents as referred in Para-16 of their Written Statement. Order VIII Rule 1-A of the Code of Civil Procedure reads as under : "1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.-(1) Where the defendant bases his defence upon a document or relies upon any 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 the document and a copy thereof, to be filed with the written statement. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the defendant under this rule, but, 7 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. (4) Nothing in this rule shall apply to documents- (a) produced for the cross examination of the plaintiff's witnesses, or (b) handed over to a witness merely to refresh his memory." . Order XI Rule 14 of the Code of Civil Procedure reads as under : "Production of documents.- It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just". . The learned Counsel appearing on behalf of the petitioners makes a statement that the petitioners are restricting their claim to the 8 production of documents which the defendants referred to in Para-16 of their Written Statement. 8. The learned A.G.P. appearing on behalf of the respondents vehemently opposed the petitioners' prayer. He submits that they are not bound to produce those documents at this stage. He further submits that if the defendants fail to produce those documents at the time of trial, the Court can take adverse view against them. 9. After hearing both the sides, I do not find any substance in the submissions made by the learned A.G.P. on behalf of the respondents. It is made clear that the respondents/original defendants relied on the documents in Para-16 of their Written Statement. In view of Order VIII Rule 1-A of the Code of Civil Procedure, it is the duty of the defendants to file the documents in the Court at the time of filing Written Statement itself. 9 10. Considering these facts, the order passed by the trial Court dated 09-04-2009 is set aside. The respondents/original defendants are directed to supply the copies of the documents referred by them in Para-16 of their Written Statement to the petitioners/original plaintiffs within eight weeks from today. Writ Petition is partly allowed. 11. Rule made absolute on the above terms. [K.K. TATED, J.] sut/JUL10/wp7896.09