1 S.B. CIVIL WRIT PETITION NO.2078/2007 Atar Singh. vs. Miss Durga Kumari and anr. Date : 10.1.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.M Pitaliya, for the petitioner. Mr.AK Acharya, for the respondent. - - - - - Heard learned counsel for the parties. The petitioner is aggrieved against part of the order dated 24.3.2007 by which the petitioner's application filed under Order 8 Rule 1(3) CPC dated 10.1.2007 was dismissed by the trial court. As per the facts, a suit for specific performance of contract was filed by the respondent/plaintiff against the petitioner/ defendant wherein the petitioner took a plea that the respondent is relying upon the agreement to sale which was attested on 18.7.2002 at Udaipur whereas on 18.7.2002, the marriage of the petitioner's daughter was at Jaipur, therefore, 2 the said agreement could not have been attested as the petitioner was at Jaipur from 16.7.2002 and was not present at Udaipur. In support of this plea, the petitioner sought permission of the Court to produce photographs, negatives and CD about the solemnisation of the function of marriage of the petitioner's daughter. The petitioner also stated that the said documents were with her daughter who was residing at New Zealand. The petitioner submitted this application when his evidence started. The trial court dismissed the petitioner's application on the ground that the affidavit of petitioner's daughter was not submitted and the documents and CD have been produced after delay when the case was fixed for evidence of the petitioner/defendant. Hence, this writ petition. Learned counsel for the petitioner submitted that the photographs, negatives and CD are relevant and trustworthy evidence and there is explanation for not submitting these documents in Court on earlier occasion. It is also submitted that in the interest of justice, the court below should have allowed the application of the petitioner. 3 Learned counsel for the respondent/plaintiff vehemently submitted that the petitioner submitted written statement on 17.10.2005 and, therefore, assuming for sake of arguments that the said documents were with the petitioner's daughter at New Zealand, then, the petitioner could have obtained those documents in time and could have submitted before the trial court. In view of the reason, the trial court rightly denied the production of the evidence. I considered the submissions of learned counsel for the parties and perused the facts of the case. It is true that there is some delay but there is explanation for delay submitted by the petitioner and looking to the nature of the evidence which is sought to be produced, this Court is of the view that the trial court should have taken a reasonable approach to the matter and should have permitted the petitioner to have produced the evidence. It is true that time has been fixed for submitting the evidence under Order 8 CPC itself so as to avoid delay in trial of the suit but even then, the totality of the facts are required to be 4 considered while deciding the matters for grant of permission for producing evidence under Order 8 Rule 1(3) CPC. The petitioner's contention that his daughter's marriage was solemnised at Jaipur and he wanted to produce the photographs, negatives and CD of that event, then normally unless otherwise proved, the Court could have drawn inference that the evidence is required to be examined thoroughly and cannot be rejected summarily. In view of the above, this writ petition is allowed, the order dated 24.3.2007 to the above extent is set aside and the application under Order 8 Rule 1(3) CPC is allowed. The documents – photographs, negatives and CD produced by the petitioner are taken on record. The trial court may proceed with the suit expeditiously. (PRAKASH TATIA), J. S.Phophaliya