CRP 298/2010 BEFORE HON’BLE MR JUSTICE HN SARMA The subject matter of challenge in this revision petition filed under Ar ticle 227 of the Constitution of India is the order dated 19.6.2010 passed by th e learned Civil Judge, Morigaon in Misc.(J) Case No. 16/2010 arising out of Titl e Suit No. 23/2005 thereby rejecting the application of the petitioner to produc e additional documentary evidence after closer of the evidence of both sides. 2. Heard Mr. D. Barua, learned counsel appearing for the defendant/ - petitioner and Mr. J. Roy, learned counsel appearing for the plaintiff/responden t. 3. The plaintiff/respondent filed Title Suit No. 23/2005 in the cou rt of the learned Civil Judge(Sr. Div) Morigaon impleading the present petitione r as defendant No. 1. In the aforesaid suit the plaintiff/respondent prayed for following reliefs - 1. a decree of declaration that the plaintiff is entitled to recover the entire amount of Rs. 21,14,184/- from the defendants, jointly and severally, on accoun t of recovery of compensation of risk and cost for short supply of bamboo by rai l from and beyond rail stations of Barpeta Road on North Bank and Goalpara on th e South Bank of river Brahmaputra ; alongwith interest at the rate of 18.58 per annum on the aforesaid amount for the period with effect from 30.8.2002 to 8.8.2 005 ; ii) a decree for recovery of Rs. 21,14,184/- with interest thereon @ 18.58 per annum thereon i.e., Rs. 11,73,372.12 ; iii) a decree for future interest @ 18.58 per annum from the date of filing of this suit till realization of the amount of Rs. 21,14,184/- ; iv) a decree for all costs of the suit ; v) any other relief or reliefs to which the plaintiff may be found to be entitl ed in law and in equity. 4. The summon of the suit having been served the defendant No. 1 f iled written statement as well as counter claim on 10.4.06, denying the allegat ions made in the plaint as well as claiming for a decree in his favour for Rs. 81,18,193/- against the plaintiff/respondent. Written statement to the counter c laim was also filed by the plaintiff on 10.7.06 denying the claim of the defenda nts. When the suit is set down for hearing both affidavit evidence in chief and the witnesses were cross examined by the adversaries. 5. On closer of the defence witnesses the defendant/petitioner file d an application on 3.4.2010 under S. 151 of the CPC praying for allowing them t o adduce certain documentary evidence as narrated in the said application. The documents which were sought to be introduced in the suit are the original produc tion registers for the financial year 2002-2003, 2003 -2004 and 2004 to 2005 and the original audited statements of accounts of the defendant firm for the year ending 31.3.2003, 31.3.2004 and 31.3.2005. In the aforesaid application it is pl eaded that the documents in question were lying with the attorney of the defenda nt for production before the Commissioner of Income Tax during the course of hea ring relating to certain matter on income tax disputes. At paragraph 6 of the ap plication however it is stated that neither the partner nor the constituted atto rney of the defendant/petitioner had knowledge that the said documents were in p ossession of the attorney who was taking steps before the Commissioner of Income Tax in the related appeals. As against the aforesaid prayer the plaintiff respo ndent submitted written objection on 7.5.2010. Thereafter the learned trial cour t heard the matter and vide impugned order dated 19.6.2010, the prayer for produ ction of documents by way of additional evidence in the suit was rejected, which is the subject matter of challenge in this petition. 6. Assailing the impugned, Mr. Barua submits that the aforesaid doc uments were not within the knowledge of the petitioner and as such it could not be produced at the relevant time. That apart, under Order VI Rule 2 of the CPC i t is necessary only to plead the material facts and, the documents which are sou ght to be filed in the suit, being in the nature of documentary evidence, were n ot required to be mentioned/reflected in the written statement and accordingly t he learned trial court committed jurisdictional error in not accepting the docum ents so filed by the defendant. 7. Per contra, Mr. Roy, learned counsel submits that the plaintiff has not made any factual basis for production of those documents. There is no wh isper in the written statement about existence of such documents and only when d uring cross examination of DWs such lacuna has been elicited the defendants file d the application at a much belated stage of argument only to fill up the said l acuna which is not permissible under the law. 8. Mr. Barua, refers to the decision rendered in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (2005) 6 SCC 344, paragraph 14, whe rein the Apex Court categorically held that if a party can satisfy the court to the effect that after exercise of due diligence the evidence sought to be produc ed by way of additional evidence were not within the knowledge of the party or c ould not be produced at the time the party was leading evidence, the court may p ermit leading of evidence at a later stage on such terms as it may appear to be just. It is submitted that in view of the above situation although Order XVIII R ule 17(A) has been deleted from the CPC by the CPC Amendment Act, 2002 the defen dant petitioner can still pray before the court for acceptance of those document s when it could establish that it was not within the knowledge of the defendant/ petitioner about existence of those documents until those witnesses were cross e xamined. 9. Mr. Roy referring to the decision rendered by the Apex Court rep orted in 2009 4 SCC 410 and the application filed by the defendant/petitioner un der S. 151 of the CPC as well as the objection thereto filed by the plaintiff/re spondent submits that the contention of the petitioner is not tenable in the eye of law as well as the facts which have surfaced in the suit. 10. I have considered the rival submissions made by the learned coun sel for the appearing parties. It is an admitted position that there is no whisp er or reference of the documents sought to be produced by way of additional evid ence in the written statement/counter claim filed by the defendant/petitioner. I mmediately after filing of the counter claim the plaintiff filed written stateme nt to the counter claim wherein it has been stoutly denied the allegation of in crease of price of the bamboo subsequently as alleged by the defendants. The def endants did not include the documents in their list before the court at the time of submitting their documents which is the requirement of law under Order VIII Rule 1 of the CPC. Order VIII Rule 8 (A) provides that where the defendant bases his defence upon a or relied on any document in support of his defence claim, he shall enter such documents in a list and shall produce it in the court at the time of filing of the written statement and file copies of such documents with the written statement. Under Order VIII Rule 3 of the CPC such documents which ought to be entered in the list and which are not so entered, shall not without leave of the court to be received in evidence at the time of hearing of the suit except however for using those documents for cross examination of the witnesses of the plaintiff or handed over to a witness for refreshing his memory. Order XVIII Rule 17 A which was introduced in the CPC by CPC Amendment Act of 1976 has been deleted by the CPC Amendment Act of 1999. The effect of such deletion of O rder XVIII Rule 17(A) has been considered by the Apex Court in the case of Salem Advocate Bar Association, (supra), wherein the Apex Court at paragraph 14 has h eld as follows - 14. In Salem Advocates Bar Association’s case, it has been clarified that on de letion of Order XVIII Rule 17A which provided for leading of additional evidence , the law existing before the introduction of the amendment, i.e., 1st July, 200 2, would stand restored. The Rule was deleted by Amendment Act of 2002. Even bef ore the insertion of Order XVIII Rule 17 A, the Court had inbuilt power to permi t parties to produce evidence not known to them earlier or which could not be pr oduced in spite of due diligence. Order XVIII Rule 17 A did not create any new r ight but only clarified the position. Therefore, deletion of Order XVIII Rule 17 A does not disentitle production of evidence at a later stage. On a party sati sfying the Court that after exercise of due diligence that evidence was not with in his knowledge or could not be produced at the time the party was leading evid ence, the Court may permit leading of such evidence at a later stage on such ter ms as may appear to be just. 11. Inserting Order XVIII Rule 17 A by way of CPC Amendment Act, 197 6 a discretion was conferred upon the court to permit production of such documen ts at a later stage of the suit which could not be produced when the party was l eading evidence, after exercise of due diligence, if the court is satisfied to that effect but the same has been deleted by the CPC Amendment Act of 1999 as in dicated above. 12. Production of documentary evidence by defendant, is regulated an d guided by provision of Order VIII Rule 1-A as well as Order XIII Rule 1 of the CPC. Order XIII Rule 1 of the CPC provides to the effect that the parties or th eir pleader are to produce on or before settlement of the issues all the documen tary evidence in original where copies thereof have been filed alongwith the pla int and the court shall receive such documents if so produced. However, it is al so provided that the parties are required to file accurate list of such document s. The provision of Order XIII Rule 1 of the CPC is not however applicable in ca se of a document which is produced for the cross examination of the witnesses o r handed over to a witness when evidence is leading merely to refresh his memory . Order XIII Rule 1(a) (3) is in tune with Order VIII Rule 1 (A) (4) of the CPC, as amended. It is an admitted position at the bar that the documents sought to be produced at the subsequent stage by the defendant were not produced before th e court, on earlier occasion at the time of filing the written statement nor any list thereof has been filed before the court. In the written statement and the counter claim there is no whisper about the existence of documents or statement about its existence. On the other hand, the statement made by the defendant/petitioner a s regards existence of documents with the attorney of the defendant was found to be self contradictory as made at paragraphs 3 and 6 of the application. The lea rned trial court rejected the prayer of the petitioner on the ground that there is no factual basis made by the defendant/petitioner in support of its claim and those were submitted after closer of evidence of both the parties. 13. The submission of the petitioner that inspite of due diligence t he documents in question could not be found out or not in the knowledge of the p etitioner stands belied by the statements of the defendants made in Para 3 and 6 of the application filed u/s 151 CPC, apart from those statements are also self contradictory. 14. The impugned decisions rendered by the trial court is perfectly within the jurisdiction of the provision of the CPC. I do not find any jurisdict ional error in passing the impugned order by the learned trial court justifying interference in this revision petition in exercise of power under Article 227 of the Constitution of India. Accordingly, I do not find any merit in this revisio n petition and it stands dismissed. The interim order passed earlier stands vaca ted. 15. As agreed to by the learned counsel of both the parties, the par ties are directed to appear before the learned trial court on 9.2.2011 to receiv e further instructions from the learned trial court. Upon such appearance the le arned trial court shall hear the arguments of the parties and dispose of the sui t as expeditiously as possible and at any rate not later than three weeks therea fter, since it is an old suit of the year 2005.