IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1422 of 2008 BALDEO PRASAD AZAD Versus SRI AJIT KUMAR SITARIA@KESHRI&ORS ----------- 3. 22.9.2008 Heard counsel for the petitioner and the counsel for the opposite parties. The suit of the year 2004 is still awaiting disposal not because the court does not find time to dispose it of but because the plaintiff does not want the suit to be disposed of. The court below by the impugned order dated 10.7.2008 has rejected the prayer of the petitioner for proving two documents, namely, a legal notice dated 30.1.2003 and Shradh card pertaining to the death of one Harihar Prasad Sitaria. It is an admitted fact that the petitioner being the plaintiff had not filed these documents with the plaint under Order 7 Rule 14 C.P.C. nor such documents were sought to be again filed at the stage of framing of the issue under Order 13 Rule 1 C.P.C. As a matter of fact the plaintiff started adducing evidence and in course of such evidence felt requirement of proving those documents, but then as these documents were not on record, he came out with an 2 application seeking leave to file these documents. The court below taking into consideration that these two documents being new documents has rejected such prayer by the impugned order. Counsel for the petitioner with reference to the pleadings on record, especially paragraph 15 of the plaint and its rejoinder in paragraph 25 of the written statement would submit that as a matter of fact the legal notice dated 30.1.2003 was an admitted fact and therefore, the petitioner only wanted to bring it on record by way of exhibiting it. He would further submit that the said legal notice itself refers to the death of Harihar Prasad Sitaria and in fact paragraph 12 of the plaint also gives the date of death of Harihar Prasad Sitaria to be 19.1.1999. Though this aspect of the matter with regard to date of death was controverted by the defendant in the written statement but then the plaintiff’s case remained about his date of death as 19.1.1999. Counsel for the opposite parties, who has appeared on notice, would submit 3 that not only that these two documents were not filed at the appropriate stage but in fact there is no explanation whatsoever for such belated filing. He would further submit that as a matter of fact a similar prayer was made after passing of the impugned order by the petitioner which again got rejected on 10.7.2008. Having given anxious consideration to the aforementioned material on record as also the statement of the parties, this Court is of the view that when the said document in no way is going to prejudice the defendant opposite party inasmuch as both facts are virtually admitted in the written statement, the petitioner must be at least given a chance to produce those documents, especially when it is a suit of specific performance where in absence of legal notice on record adverse inference may be drawn with regard to the demand of the plaintiff petitioner of completing his part of promise of the contract. Taking this fact basically in the interest of justice into account this Court would allow this application but then as 4 this delay in filing of these documents which ought to have been filed with the plaint itself is of more than three years, the petitioner in order to get this relief must compensate the harassment which has been caused to the defendant who had not only opposed such application in the court below on two occasions but have also appeared before this Court. In that view of the matter, this Court would direct the petitioner to pay a sum of Rs.2000/- to the defendants opposite parties within a period of one month from the date of receipt/ production of a copy of this order whereafter the two documents as referred above would be exhibited in the evidence of the plaintiff petitioner. In the result this application is allowed and the impugned order is set aside with the aforesaid directions. (Mihir Kumar Jha,J.) Surendra/