THE HON’BLE SRI JUSTICE G. CHANDRAIAH CIVIL REVISION PETITION No. 5444 OF 2010 Between: Kotagiri Rajeshwer …. Petitioner A n d Kotagiri Venkat Ramana and 4 others … Respondents THE HON’BLE SRI JUSTICE G. CHANDRAIAH CIVIL REVISION PETITION No. 5444 OF 2010 ORDER: This Civil Revision Petition is filed being aggrieved by the order and decree dated 19.10.2010 passed in I.A.No.707 of 2010 in O.S.No.14 of 2006 on the file of Senior Civil Judge, Jagtial. The petitioner herein is the petitioner in the I.A and Defendant No.3 in the O.S; whereas the Respondent herein is the 1st Respondent in the I.A and plaintiff in the O.S. 2. The petitioner filed the said I.A under Order VIII Rule 1-A(3) read with Section 151 C.P.C, praying the lower Court to receive the account books and one award of the joint family business under the list of documents by condoning the delay. The said application was dismissed by the lower Court. Aggrieved by the same, the present CRP is filed. 3. The learned counsel for the petitioner submits that the Court below had committed an error in dismissing the application on the ground that no satisfactory reasons were given by the petitioner with regard to non-filing of documents along with the written statement. The petitioner’s counsel further submitted that a reference was made about the said documents at Item No.3 under Paragraph No.9 of the written statement filed by the petitioner/3rd defendant. He further submitted that only on the ground that, no reasons are assigned for non-filing the documents, the Court below dismissed the I.A. He further submitted that Order VIII Rule 1-A(3) of CPC contemplates that leave of the Court is only necessary and no reason need to be stated and the documents can be received by the leave of the Court and it does not contain more than that. Therefore, the lower Court committed an error in dismissing the application. 4. On the other hand, the learned counsel appearing for the respondent/plaintiff submitted that the order of the lower Court does not suffer from any legal infirmity so as to interfere with its order by exercising power under Section 227 of the Constitution of India. He further submitted that the lower Court had rightly dismissed the application filed by the petitioner in view of the fact that the trial had already commenced and the case was posted for cross-examination of 1st defendant. The counsel further submitted that in the I.A. filed by the petitioner, no reasons were assigned for not filing the said documents at the time of filing his written statement. Therefore, considering the said aspects, the Court below had rightly dismissed the application. 5. The petitioner’s counsel relied on the judgment in case between UNION OF INDIA v. Y.S.HI-TECH SECURE PRINT PVT. LTD., HYDERABAD[1], and paragraph 6 of the said judgment reads: “Having regard to the settled legal position, it may be noticed, whether the Court below was not justified in refusing receive the documents by condoning the delay. Receipt of documents, at the instance of the defendant after filing written statement, as noted above, being subject to leave of the Court, it may be seen whether the petitioner has given any adequate reasons, justifying his request to receive the documents after filing written statement. To consider this aspect, I have gone through the affidavit filed by the petitioner in support of the present application. Though the petitioner has pleaded before this Court that due to administrative reasons, delay has occurred in filing the documents, but upon a perusal of affidavit filed in support of the application, it becomes clear that the petitioner has not taken any such plea before the Court. The petitioner has not furnished any reason, much less adequate reasons, as to why they could not file the documents along with the written statement, whether the documents were available with them as on the date of filing written statement and, if not, where they were lying all these days, when they found them and in whose possession they were. The petitioner except stating that they could not file the documents earlier and inasmuch as the respondent has based his claim by creating documents, it is just and necessary to receive the documents as otherwise, they will be put to great hardship, has not assigned any reason, much less justifiable reason as to why he could not file them along with his written statement. Merely because the petitioner is Government, it does not mean, it is entitled to seek receipt of documents after filing written statement without assigning any reasons, as to why they could not file the documents along with written statement. In the absence of any reason assigned by the petitioner as to why they could not file the documents along with the written statement, in the affidavit filed in support of the application, the Court below has rightly refused to grant leave to receive the documents by condoning the delay.” 6. It is contended by the respondents’ counsel that the documents sought to be filed by the petitioner are not relevant to the facts of the case, and hence sought dismissal of the CRP. 7. Now the point for consideration is whether the impugned order needs to be set aside and the CRP is to be allowed. 8. O.S.No.14 of 2006 was filed by the 1st respondent herein for partition of suit schedule property. The petitioner herein is the 3rd defendant in the suit. The case was posted for cross-examination of the 1st defendant. A written statement was filed by the petitioner/3rd defendant, wherein Item No.3 under Paragraph 9 reads: “That a joint family Adthi Business situated in Jagtial Market yard in the Name and style of M/s Kotagiri Sudarshan Shanker the same is established by the father of the Defendants No.1 to 3 and Plaintiff in the year 1978 and the Defendant No.1 managing the same. That in the year 1985 changed the said name as M/s Udayshankar and brothers thereafter the said name changed as M/s Kotagiri Gangaram and subsequently changed as M/s Radhika Traders situated in Market yard Jagtial. That the income derived from the said business had constructed a house as shown in Item No.2 of this written statement, that kept the joint family gold about 50 tulas and cash about Rs.5,00,000/- by the Defendant No.1 he being the elder member of the family. The same has to be included in this suit.” 9. The petitioner had already taken note of the fact that the case was posted for cross-examination of the 1st defendant. The petitioner filed I.A.No.707 of 2010 wherein it was stated that the trial was commenced and the plaintiff was examined as P.W.1. Thereafter, the evidence of the plaintiff side closed and the 1st defendant was partly cross examined as D.W.1 and the case is posted for further cross examination of D.W.1. At that stage, the petitioner came up stating that recently he could trace some account documents and one award of joint family business and they are very essential material documents and therefore requested the Court below to receive them under the list of documents by condoning the delay. Further, the petitioner stated that the respondent No.1/plaintiff and the respondents/defendants have full knowledge about the said documents and no prejudice would be caused in receiving the documents as otherwise the petitioner will be put to irreparable loss and hardship. 10. The respondent/plaintiff filed a counter stating that there is no averment in the written statement filed by the petitioner herein with regard to the account books and award. Further, without mentioning about the account books and award, the petitioner is not entitled to file those documents at this stage. He further submitted that the alleged award passed by the arbitrators requires stamp duty and registration; and without the stamp duty and registration the same is inadmissible in evidence. 11. The 2nd respondent/1st defendant in said I.A also filed his counter affidavit in similar line of the counter affidavit filed by the 1st respondent/plaintiff. 12. The trial Court dismissed the I.A on the ground that the petitioner came up with the said documents with a single sentence explanation that they could be recently traced and they are very essential. Having considered the said statement in the application, the lower Court held that, in the ordinary course, the Court would have leaned in favour of receiving the documents instead of refusing the same provided there are valid reasons which prevented the petitioner from producing the same before the Court at the very earliest point of time. The petitioner filed an additional affidavit. Paragraph 2 of the additional affidavit reads: “I state that, the documents which are filed by me were in the old house belong to our joint family property, due to the recent rains the said dilapidated old house was collapsed, then only I could get these documents i.e. 1) The Account books pertaining the joint family business which was managed by the defendant no.1 and 2). The award passed by the elders, as such I filed the petition praying the Hon’ble Court below to receive the same as no prejudice will be caused to the other parties to the suit, as they are having knowledge of the same.” 13. No reply has been filed by the 1st respondent/plaintiff rebutting the contention of the petitioner in his additional affidavit. 14. On the other hand, the learned counsel for the respondent submits that the lower Court has rightly dismissed the application considering the single sentence made by the petitioner that those documents were traced only recently as no explanation at all. Therefore, the additional affidavit filed by the petitioner cannot fill the lacuna caused in the case of the petitioner; and hence, the CRP is liable to be dismissed. It is further contended by the respondents’ counsel that in the judgment (1-supra) relied upon by the learned counsel for the petitioner, wherein certain documents were sought to be filed by the defendant, and when the defendant filed an I.A to receive the documents, the I.A was dismissed. 15. In the instant case, the Court below though wanted to allow the application but for the reasons assigned by the petitioner were not satisfactory, dismissed the application. Further, the relevance of the documents had already been mentioned by the petitioner at Item 3 of Paragraph 6 of his written statement. It was stated in the affidavit filed in support of the said application that the documents were not available at that relevant point of time. There is no doubt that no reason was assigned by the petitioner except that the documents were traced recently. No counter affidavit has been filed by the respondents denying the statement of the petitioner. Therefore, having regard to the facts and circumstances, the case relied on by the learned counsel for the petitioner has no application to the facts and circumstances of the case on hand. Further, the learned counsel for the respondents submits that those documents are not relevant to the facts and circumstances of the case. 16. At this stage, it is not for this Court to determine whether the documents sought to be filed by the petitioner are relevant or not. Moreover, it is not the case of the respondents that prejudice would be caused on account of receiving the documents. Admittedly, it is a case for partition of suit schedule property. The documents sought to be filed by the petitioner were not available at the time of filing his written statement but were traced only recently, and since nothing was known regarding the whereabouts of the documents at that time, the petitioner made a reference of those documents in his written statement. The petitioner assigned reason in paragraph 2 of his additional affidavit about how the documents came into picture and stated that those documents are necessary in the partition suit. Further, the Court below held that it could have allowed the I.A., but for the fact that appropriate reason was not assigned by the petitioner regarding non-filing of the said documents along with his written statement, the application was dismissed. 17. Therefore, in the facts and circumstances of the case, the impugned order is set aside and the CRP is allowed. The Court below is directed to receive the documents filed by the petitioner. __________________________ JUSTICE G. CHANDRAIAH 14th February, 2011 PNV [1] 2010 (6) ALD 430