CRP 301/2010 BEFORE THE HON’BLE MR JUSTICE IA ANSARI JUDGMENT & ORDER BACKGROUND FACTS The opposite party herein, as plaintiffs, instituted Title Suit No.4/200 8 against the present petitioners and five others as defendants seeking, inter a lia, a decree declaring their rights, title and interest over the suit land, con firmation of their possession thereon with further declaration that the sale dee d No.713, dated 30.09.2009, and the sale deed No.720, dated 09.10.2000, executed by the principal defendant Nos.3 to 7, in favour of the principal defendant No. 2, in respect of Schedule-B land of the plaint, is illegal, null and void and that the boundary given in the registered sale deed No.713 is incorrect and the same is not in respect of the land of Schedule-B and that the decree, obtained, in Title Suit No.12/2003, by the principal defendant Nos.1 and 2, is a decree ob tained by fraud and the same is not binding in respect of one bigha of the land of Schedule B to the plaint, the case of the plaintiffs-opposite party herein be ing as under: Late Bangshidhar Deori, father of the plaintiffs and the principal defen dant Nos.3 to 7 was the original pattadar of the suit land measuring 35 bighas 2 kathas and 4 lechas. While the suit land was covered by annual patta bearing No .58(New) and 55(Old) and the same contains six bighas. Later on, the entire land of the said annual patta was converted into a periodic patta land being No.111 in the name of the principal defendants No.3 to 7 alone on payment of the premiu m. On payment of the premium, the dag numbers of the annual patta were changed a nd also some adjacent dags were joined into one dag. The new dags being 45 conta ining an area of 27 bighas 1 kathas and 7 lechas, the dag No.75 containing an ar ea of 3 bighas 3 kathas and 11 lechas and also the dag No.213 containing an area of 27 bighas 1 kathas and 7 lechas were allotted. Thereafter, the principal def endants No.3 to 7, who are legal heirs of late Bangshidhar Deori sold out a plot of land measuring 14 bighas out of 27 bighas 1 katha and 7 lechas covered by da g No.213 of periodic patta No.111 of the principal defendant No.1 by executing a sale deed being No.713/2000. Thereafter, principal defendant Nos.3 to 7 again s old a plot of land measuring 13 bighas 1 katha and 7 lechas covered by dag No.21 3 to the principal defendant No.2, Smti Madhubala Das, by executing a sale deed No.720 dated 09.10.2000 without having possession upon the entire land. The prin cipal defendant No.2 purchased the same, but failed to take possession upon the purchased plot of land as the same has been under the possession of the plaintif fs on receiving a share portion of their father’s property. The plaintiffs also contended that the landed properties were equally partitioned amongst the legal heir of the original pattadar, namely, late Bangshidhar Deori, and accordingly t he plaintiffs have been cultivating their shared portion of land on Adhi basis. Schedule A to the plaint contains the plot of land measuring 27 bighas 1 katha a nd 7 lechas covered by dag No.213 of Periodic Patta No.11 and Schedule B contain s the plot of land measuring 10 bighas 1 katha and 2 lechas, which is a part of the Schedule-A and Schedule-C describes the two registered sale deed being No.72 0 dated 09.10.2000 and 713 dated 30.09.2000. On 01.11.2007, the plaintiffs came to know that the defendants No.1 and 2 tried to dispossess their Adhiers, i.e., the proforma defendant Nos.1 to 7 from Schedule B land on the basis of two sale deeds, namely, sale deed No.713/2000 and sale deed No.720/2000. The plaintiffs a ccordingly instituted a Title Suit, which gave rise to Title Suit No.04/2008 for determination of their rights, title and interest and confirmation of possessio n. With the help of the said suit, the plaintiffs further prayed for declaration in respect of the two sale deeds mentioned in Schedule C as null and void. 2.The defendant Nos. 1 and 2 filed a joint written statement, their case being that of denial, the denial being to the effect that the plaintiffs are not legal heirs of late Bangshi Dhar Deori and that the plaintiffs are not entitled to cl aim any right over the suit land by way of inheritance or by way of succession, the defendant Nos.1 and 2 are bona fide purchasers by virtue of the said two sal e deeds, namely, sale deed No.713, dated 30.09.2009, and sale deed No.720, dated 09.10.2000. Their names stand mutated on 20.12.2000 in respect of the said land and the land records have also been accordingly corrected on 12.06.2001 and as far as the proforma defendant Nos.1 to 7 are concerned, they have filed an appea l being Title Appeal No.01/2007, which is pending before the Civil Judge, Moriga on, arising out of the suit land wherein they have claimed that they purchased t he entire suit land from Bangshi Dhar Deori, who also delivered possession of th e land to them. 3. In course of time, issues were framed, documents were filed, the plaintiffs’ witnesses were examined and their evidence was closed. When the suit was pending for recording of evidence to be adduced by the defendants, the petitioners here in, as defendants, filed, on 03.04.2010, a petition, in the suit, which gave ris e to Petition No. 249/2010, stating to the effect, inter alia, that on 06.11.200 9, the defendants had filed a petition, which had given rise to Petition No.1119 /2009, wherein it had been mentioned by them that some documents, relevant to th e suit, were lying in the records of Title Execution Case No.01/2002 in the Cour t of Civil Judge, Morigaon, and that those documents could not, therefore, be su bmitted in the present suit. It was also pointed out by the defendants, as petit ioners, in their subsequent Petition No.249/2010 aforementioned, that in their e arlier petition (which had given rise to Petition No.1110/2009), they had, howev er, not mentioned as to what the relevant documents were. In their subsequent p etition (which the defendants herein filed on 03.04.2010 and which had given ris e to Petition No.249/2010 aforementioned), the defendants mentioned as many as s ix documents as the documents, which they wanted to produce in the Court, these documents being (1) a registered sale deed No.713, dated 30.09.2000, (2) a regis tered sale deed No.720, dated 09.10.2000, (3) Jamabandi copy of village Karchoab ari, Mouza Monaha, PP No.111, Dag No.213, (4) School (transfer) Certificate issu ed by Head Master of Konwar Gaon Primary School on behalf of Smti Aditi Deori (P hotostat), (5) School (transfer) Certificate issued by Head Master of Konwar Gao n Primary School on behalf of Smti Padma Deori (Photostat) and (6) A certificate issued by Sri Amiya Bordoloi, Gaonburha of Barukata Gaon, 3 No. Lat. Mouza Mona ha on behalf of Smti Aditi Deori, Smti Padma Deori, Smti Renu Deori. 4. At the time of hearing of the said petitions, which took place on 06.11. 2010, learned counsel for the present defendants-petitioners submitted that at t he time of filing of the written statement and at the time of filing of the docu ments, defendants were not in possession of some documents, which had been submi tted in Title Execution No.01/2009, and, hence, they may be granted leave to sub mit those documents in terms of Order XIII Rule 1 of the Code of Civil Procedure . The submissions, so made, were resisted, on behalf of the plaintiffs by their learned counsel, who submitted that the petitioners (i.e., the defendants), nowh ere, stated, at the time of filing of documents and settlement of issues, that s ome documents, which they would rely upon, were not in their custody and due to this reason, they could not produce those documents in the Court nor did they in form the Court as to who the person was in whose custody the documents were lyin g and why they could not file such a petition earlier, as they did on 03.04.2010 , and, hence, at the stage of recording of evidence of the defendants’ witnesses if documents were allowed to be filed, it would cause injustice to the plaintif fs. The plaintiffs accordingly sought for rejection of the prayer of the defenda nt-petitioners. 5. By order, dated 20.04.2010, learned Munsif No.1, Morigaon, has rejected the d efendant-petitioners’ said petitions on the ground that the suit is slated for d efendants’ evidence and the plaintiffs would suffer irreparable loss if, at such a belated stage, those documents were allowed to be filed, which, in terms of O rder VIII Rule 1A, had not been filed with the written statement or at the stage of filing of the documents or at the stage of framing of issues and, hence, the defendants cannot be allowed to introduce a new document, when they had not, at the beginning of the trial, sought for leave to file the documents at a subsequ ent stage. 6. Aggrieved by their rejection of the petition seeking to file documents, the defendants-petitioners have impugned the same in this revision. 7. I have heard Mr. Z. Alam, learned counsel, for the defendant-petitioners, and Mr. MH Choudhury, learned counsel, for the opposite party. Classification of documents vis-à-vis nature of suits 8. Under Order VI, pleading has been defined to mean plaint or written statement and sub-Rule (1) of Rule 2 of Order VI states that every pleading shall contain , and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. 9. It is also pertinent to point out that a pleading contains material fact s and material facts are those facts, which a party rely upon, must prove, at th e trial, in order to get a judgment in his favour. The material facts pleaded ca n be proved by oral or documentary evidence depending upon the facts pleaded. If any of the material facts in the pleadings is such, which is required to be pro ved by oral evidence, then, the question of bringing documentary evidence may no t arise, for example, the fact that the defendant had made an attempt to disposs ess the plaintiff. This averment, made in the plaint, need not be substantiated by documentary evidence, though a document may be relied upon to show that such an accusation was made at the time, when the defendant, according to the pleadin gs in a given plaint, had attempted to dispossess the plaintiff. However, if the re are facts in a plaint, which the law requires to be substantiated by document ary evidence and not by oral evidence, then, those facts, in order to show that the right to sue exists, must be substantiated by documentary evidence to the ex clusion to that extent of the oral evidence, for example, a suit based on promis sory note. This is in tune with the provisions of Sections 91 and 92 of the Evid ence Act, whereunder oral evidence is excluded by documentary evidence if certai n facts, as indicated in Sections 91 and 92, are required to be proved. 10. It follows that if a fact is to be substantiated by a documentary evidence, then, the document must be filed at the initial stage to show that the claim is not unfounded, for example, when title to a property is claimed by way of purcha se, sale deed is a document, which has to be annexed to the plaint to show that the claims, made in the plaint, regarding title, are proposed to be proved by do cumentary evidence, namely, the sale deed, or else, the claim can be said to wit hout basis inasmuch as oral evidence to prove the title by purchase is inadmissi ble, in evidence, in such a case, if the value of the property exceeds rupees on e hundred. Thus, the documents are required to be filed at an early stage so tha t the Court can ascertain the dispute, which it has to decide. The second object of filing of document is to let the other side know about the manner in which a claim is sought to be substantiated by a party. These apart, if a document is a nnexed to the plaint, the defendant gets sufficient time and opportunity to exam ine if the document (annexed to the plaint) is or is not an authentic one so as to enable him (defendant) to assail production of a false and fabricated documen t, at a later stage, by the plaintiff. Changes introduced by the Code of Civil Procedure (Amendment) Act, 2002, as rega rds filing of documents in both classes of suits, namely, a suit based on docume nt as well as a suit, wherein a document is relied upon. 11. There has been a marked improvement made by the Code of Civil Procedure (Ame ndment) Act, 2002, (hereinafter referred to as ’the Code’) in the scheme of the Code as regards trial of suits. Order VII Rule 14(1) CPC states as under : 14. Production of document on which plaintiff sues or relies. - (1) Where a pla intiff sues upon a document or relies upon document in his possession or power i n support of his claim, he shall enter such documents in a list, and shall produ ce it in Court, when the plaint is presented by him, and shall, at the same time , deliver the document and a copy thereof, to be filed with the plaint. 12. Close on the heels of the provisions of Sub-Rule (1) of Rule 14 of Orde r VII is Sub-Rule (2) thereof, which reads as under: 14. Production of document on which plaintiff sues or relies. - (1) *** *** (2) Where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is. 13. While considering the provisions, contained in sub-Rules (1) and (2) of Rule 14 of Order VII, it needs to be borne in mind that a suit, as indicated abo ve, may be based on document(s), or it may be a suit, which, though not based on document(s), is a suit, where a document is relied upon by the plaintiff to sup port his plaint. The document, which forms the basis of a plaintiff’s suit, or a document, which a plaintiff relies upon as a piece of evidence to support his plaint, may or may not in the possession or power of the plaintiff. It is to be noted, in this regard, that irrespective of the fact whether the document is th e one, on which the plaintiff bases his suit, or it is one, which he relies upon as a piece of evidence to support his plaint, Rule 14(1), in either case, requi res the plaintiff to file, at the very stage of presentation of the plaint, a li st, wherein both the classes of documents have to be enlisted with his plaint an d deliver not only the documents, but also copies thereof, with the plaint if t he plaintiff is in possession or power of the documents. 14. The above provisions further show that irrespective of the fact as to wh ether a document is or is not in the possession or power of the plaintiff at the time of presentation of the plaint, the plaintiff has nevertheless the duty to furnish a list of documents, as indicated hereinbefore, and, if he has the docum ent aforementioned in his possession or power, he must produce, at the very stag e of presentation of the plaint, not only the document, which he sues upon or re lies upon, but also a copy thereof with the plaint. 15. Extended logically, it would mean that it is mandatory that the plaintif f informs the Court, at the very stage of presentation of the plaint, about the documents upon which his suit is based, or about the documents upon which he rel ies. It is for this reason that he is required to give not only a list of such d ocuments, but he shall deliver those documents and copies thereof with the plain t at the time of presentation of the plaint. Sub-Rule 14(2) makes it clear that even in a case, wherein a document, which a plaintiff relies upon, is not in hi s possession or within his power, he shall, wherever possible, state in whose po ssession or power the document is. Both the classes of documents - be the docum ents, the one on which the suit is based, or the one, which is relied upon by th e plaintiff as a piece of evidence to support his plaint - have to be delivered to the Court at the time of presentation of the plaint and a copy thereof has to be filed with the plaint. Object of filing of documents at the earliest 16. Thus, a combined reading of the provisions of Sub-Rule (1) and (2) of Ru le 14 subserves two objects. These rules expedite the process of disposal of the suit inasmuch as it brings on record the documents, which form the basis of the plaintiff’s suit as well as the documents, which the plaintiff relies upon as a piece of evidence in support of his plaint, provided that the document is in hi s possession or power. At the same time, the Court as well as the defendant(s) are informed about the documents, which form the basis of the plaintiff’s suit, or the documents, which the plaintiff relies upon. Coupled therewith, if the pla intiff is not in possession of a document, which he sues upon or relies upon, he informs the Court, wherever possible, as to where the document is so that proce ss of the production of the document gets expedited. 17. Another object of requiring the parties to furnish list of documents and also a document, where a document is in the possession or power of the party co ncerned, is to remove the element of surprise, for, a decision in a suit is take n on the basis of preponderance of evidence. For the purpose of bringing the evi dence on record, each of the parties must know each other’s case. Thus, the elem ent of surprise has to be removed. Fall out of documents not being filed on or before settlement of issues and when production of document is not sought. 18. Consequential to the provisions contained in Sub-Rule (1) and 2 of Rule 14 of Order VII, Sub-Rule (3) thereof reads as under: (3) A document, which ought to be produced in Court by the plaintiff, when t he plaint is presented, or to be entered in the list to be added or annexed to t he plaint, but is not produced or entered accordingly, shall not, without the le ave of the Court, be received in evidence on his behalf at the hearing of the su it. 19. Thus, Sub-Rule (3) of Rule 14 of Order VII further lays down that it is at the time of presentation of the plaint itself that the plaintiff must deliver the document on which he sues or the document, which he relies upon to support his case, provided that the document is in his possession or power. When the doc ument is not in his possession or power, he must state in whose possession or po wer the document is if he knows. If the plaintiff does not inform the Court, at the time of presentation of the plaint, about the document, which is the basis o f his suit or which he relies upon, and if he does not deliver the document, whi ch he ought to have produced at the time of presentation of the plaint, or it if not in his possession or power, does not tell the Court, even though he knows, where the document is lying, then, he is debarred from producing such a document for the purpose of recording evidence. What documents need not be filed in the suit? 20. The only exception to the requirements of Sub-Rule (3) of Rule 14 of Ord er VIII as well as Sub-Rule (3) of Rule 1A of Order VIII is given under Sub-Rule (4) of Rule 14 of Order VII and Sub-Rule (4) of Rule 1A of Order VIII, which la y down, in effect, that nothing contained in these Rules shall apply to a docume nt produced for the purpose of cross-examination of a plaintiff’s witnesses by t he defendant or produced or handed over to a witness by either side merely to re fresh a witness’s memory. 21. In other words, a document, which is produced by the defendant merely fo r the purpose of cross-examination of the plaintiff’s witnesses or a document, w hich is produced by the plaintiff for the purpose of cross-examination of the de fendant’s witnesses, or a document, which is handed over to a witness by either party merely to refresh the witness’s memory is not a document, which is require d to be filed at the time of presentation of the plaint or at the time of filing of written statement, as the case may be. 22. By the Code of Civil Procedure (Amendment) Act, 1999, which came into effect on 01.07.2002, Rule 1A has been added to Order VIII, which reads: 1-A. Duty of defendant to produce documents upon which relief is claimed or rel ied upon by him -(1) Where the defendant bases his defence upon a document or re lies 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 sh all, at the same time, deliver the document and a copy thereof, to be filed with the written statement. 23. A careful reading of Rule 1A of Order VIII puts it beyond the veil of do ubt that same as in the case of plaintiff, the defendant’s case may be based on a document or the defendant may be relying on a document in support of his case. In either case, the defendant is obliged to, at the time of presentation of hi s written statement, not only to give a list of such documents, but also to prod uce the documents in the Court and deliver copies thereof. Similar as in the ca se of a plaint, Sub-Rule (3) of Rule 1A requires that a document, which had to b e produced, in the Court, by the defendant at the time of filing his written sta tement, but is not so produced, shall not, without leave of the Court, be receiv ed in evidence on behalf of the defendant at the time of hearing of the suit. Th us, Sub-Rule (3) of Rule 1A of Order VIII bars the defendant too, same as the pl aintiff, from producing any document, which he ought to have produced at the tim e of filing of the written statement. Distinction between the pre-amended and amended Code in matters of filing of doc uments 24. Before the Code of Civil Procedure underwent amendment by the Code of Civil Procedure (Amendment) Act, 1999, and 2002, there existed, as regards filing of d ocuments, two distinct schemes depending upon the nature of the documents, name ly, (i) a document, which forms the basis of a plaintiff’s suit, and (ii) a docu