1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5142 OF 2009 Smt.Putalabai Shankarrao Deshmukh (since deceased through L.R.) Sampatrao Shankarrao Deshmukh & Ors ...Petitioners vs. Malharrao Jaywantrao Deshmukh ...Respondent Mr.Sugandh Deshmukh for the petitioners Mr.Mandar Limaye for respondent no.1 CORAM :A.S.OKA,J. DATE : JANUARY 21, 2010 P.C. 1 Heard the learned counsel for the parties. By this Writ Petition under Article 227 of the Constitution of India, the petitioners are challenging the order dated 28 th April 2009 passed by the Trial Court below application at Exh.122. 2 The petitioners are the defendants and the respondent is the original plaintiff. An application was made by the respondent on 17 th October 2007 seeking permission of the Court to file certain documents. The said application was rejected. An application for review of the said order was made by the respondent which was rejected by the order dated 27 th August 2008. A Writ Petition was filed by the respondent for challenging the said orders. The said Writ Petition No.1189 of 2009 was disposed of by this Court by order dated 26 th February 2009. This Court dismissed the Petition by reserving the right of the respondent to challenge the orders impugned while preferring an Appeal against the decree passed in the suit. 2 3 Thereafter, an application at Exh.182 was made by the respondent on 27 th April 2009 seeking permission to produce documents. The production was sought of certain photographs. By the order impugned, the trial Court permitted the production of the documents. 4 The submission of the learned counsel for the petitioners is that by earlier application a prayer was made seeking permission to produce the same photographs. The said prayer has been rejected. He pointed out that this Court has declined to interfere with the impugned order with liberty to the respondent to challenge the same while preferring an Appeal against the decree. He, therefore, submitted that the impugned order is illegal. The learned counsel for the respondent supported the impugned order. He submitted that while passing the impugned order, the trial Court has specifically referred to sub-rule 3 of Rule 1 of Order XIII of the Code of Civil Procedure,1908. He submitted that the respondent has a right to produce the said documents for cross examining the witnesses of the petitioner. 5 I have considered the submissions. The prayer made in the application at Exh.182 does not indicate that the production of the said documents was sought for cross examining the witnesses of the petitioners. The prayer was simplicitor for production of the photographs which was admittedly rejected earlier. The order rejecting earlier application has been affirmed by this Court. In the circumstances, the trial Court could not have permitted the production of documents by the impugned order. Therefore, the said order will have to be set aside. 6 Under Rule 1 of Order XIII of the said Code, the 3 respondent-plaintiff was under an obligation to produce the documents relied upon on or before the settlement of issues. The first part of Rule 1 of Order XIII of the said Code does not apply to the documents produced for cross examination of the witnesses of the rival parties. The sub-rule 3 of Rule 1 of Order XIII of the said Code carves out an exception to sub-rule 1 of Order XVII. Clause (a) of sub-rule 3 provides that the requirement of sub-rule 1 of producing the documents on or before settlement of issues is not applicable to the documents sought to be produced for cross examination of the other party. Therefore, notwithstanding the rejection of the application at Exh.182, the respondent-plaintiff can always produce the documents for cross examination of the witnesses of the petitioners. 7 Hence, the petition is disposed of by passing the following order : 8 Subject to what is observed above, the impugned order dated 28 th April 2009 is quashed and st aside. The application at Exh.182 made by the respondent-plaintiff is rejected. JUDGE