(Prayer: Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein,the High Court may be pleased toto allow CRP by setting aside the orders passed in I.A No.218/2016 in O.S No.254/2009 dt.05.12.2016 on the file of the Junior Civil Judge, Rajam, Srikakulam District

IA NO: 1 OF 2017(CRPMP 926 OF 2017

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in O.S No.254/2009 on the file of the Junior Civil Judge, Rajam, Srikakulam District pending disposal of the above CRP.)

1. This Revision is directed against the order dated 05.12.2016 in I.A.No.218 of 2016 in O.S.No.254 of 2009 on the file of the learned Junior Civil Judge, Rajam. The petitioners 1 to 5 are the defendants in the suit. The respondent is the plaintiff. The petitioners filed an application to receive the documents on their behalf, which the learned Judge dismissed. The petitioners seek to set aside the said order by way of Revision.

2. Heard Sri. M.Yuvasiva Swamy, learned Government Pleader for petitioners and Smt.K.Rajya Lakshmi, learned counsel for respondent.

Brief facts of the case:

3. The respondent is the plaintiff who has filed the suit for permanent injunction against the petitioners 1 to 5 in O.S.No.254 of 2009 on the file of the Junior Civil Judge, Rajam. The petitioners are the defendants. In the said suit, the respondent has led evidence. When the matter came up for the petitioners' evidence, they filed the present petition, registered as I.A.No.218 of 2016, to receive the documents. The documents sought are certified copies of the SLR, FMB, and Adangals for the plaint schedule land. In the affidavit supporting the petition, the petitioners have stated that the suit is for permanent injunction and that the schedule land is Government land. To prove that the land is Government land, they are relying on the above documents. The documents were in the District Collector's office, Srikakulam. To obtain those documents as certified copies, there was a delay as they were under verification. Thus, they sought relief to condone the delay and to receive the documents on their behalf.

4. The respondent opposed the said petition by filing the counter stating that the petitioners have examined the Tahsildar as DW1. In the examination, he admitted that the SLR (Survey Land Register) is in the Collector's office. Only the Collector can certify true copies with his seal. But the Tahsildar certified the documents, which is not proper. The original SLR must be brought, not certified copies. The Tahsildar, who certified the copies, has to be called as a witness, but not the Surveyor. The Adangals obtained from the web are not statutory documents, as they do not contain the Tahsildar's signature. The documents are created and tampered with. Without the leave of the Court, the documents cannot be received.

Order of the trial court:

5. Upon considering the contention of both parties, the learned Judge applied provision Order VIII, Rule 1A of the Code of Civil Procedure, 1908 (for short “CPC”) that the documents from the defendants have to be filed at the time of filing the written statement. If they were not filed, leave of the Court is sought with valid reasons explaining the circumstances for non-filing those documents with the written statement. The petitioners, examining the Surveyor as DW2, filed the present application to receive the documents. Accordingly, the learned Judge opined that, in the absence of a plausible explanation for not filing the documents with the written statement, relying on R.Saraswathi v. P.Rajamanikyam @ Veeren and others (2015 Lawsuit (Hyd) 998), the learned judge dismissed the petition. That reasoning prompted the petitioners to approach this Court by way of Revision.

Submissions of Learned Counsels:

6. Sri M.Yuvasiva Swamy, learned Government Pleader for Appeals, representing the petitioners, has submitted that the impugned order does not sustain in law for the reason that the petitioners have specifically denied that the schedule property for which injunction is sought is Government land. In the written statement, they have referred to the SLR, FMB, and Adangals. Now, they intend to file the documents which are certified by the Tahsildar. The delay in filing the documents was due to the records kept with the office of petitioner No.5; therefore, there is no unwarranted delay or violation of any provision of law. The documents are the Government records which cannot be disputed as to admissibility.

7. Learned Government Pleader relied on a judgment in the case of Levaku Pedda Reddamma and others v. Gottumukkala Venkata Subbamma and another (2022 LiveLaw (SC) 533). Learned counsel also relied on the judgment in the case of Anisetti Nageswara Rao v. Saladi Satyanarayana and others (2024 SCC OnLine AP 5638).

8. Learned counsel, with the support of the above rulings, submitted that the documents sought to be received are not documents that are legally barred from being received in evidence. The truth of the documents can be agitated during the examination of witnesses, but they cannot be rejected at the receiving stage itself. Delay in filing the documents is not a ground, as the procedure is hand-made justice. In the interest of justice, in view of the serious dispute of title and to protect the government lands, the documents ought to have been received by the trial court. Learned Government Pleader argued to allow the application by setting aside the impugned order.

9. Smt.K.Rajya Lakshmi, learned counsel for the respondent, while refuting the submissions of learned Government Pleader, has stressed that the documents said to be in the custody of the District Collector, the petitioners have not stated how they got the said documents. If those were in the custody of the District Collector, the District Collector alone was to certify them, not the Tahasildar. Moreover, DW2, a Surveyor, filed these documents. He cannot give evidence on these documents. The learned Judge categorically observed that the petitioners have not given a plausible explanation for not filing those documents along with the written statement. If the petitioners had the documents in their custody, they ought to have stated that they were with the District Collector and that they could not file them with the written statement, but no such explanation was given. The learned Judge relied on R.Saraswathi case (cited supra). The said ruling applies to the present case. The petitioners' latches cannot be condoned. Hence, the petition is dismissed.

10. I have heard both the learned counsels and perused the record.

11. With the above factual matrix and arguments, the point for consideration arise in this revision is:

                  Point:

                  Whether the rejecting the leave to receive the documents relied by the petitioners filed at a later stage of the written statement is proper and that reasons assigned requires consideration to grant leave to receive in evidence?

Discussion & Analysis:

12. The petitioners 1 to 5/defendants are Mandal Tahsildar, Mandal Surveyor, Village Revenue Officer, Revenue Divisional Officer and District Collector, Srikakulam. The respondent has instituted the suit for permanent injunction stating that she is the absolute owner of the schedule property. The petitioners have no right, title, or possession in respect of the schedule property. At the same time, the petitioners have denied that the respondent is the absolute owner of the schedule property. The Government surveyed the schedule land and prepared the SLR and Fair Adangal Register, other Poramboke Registers, Zerayati land Registers, and other records. The Fair Adangal and SLR records clearly show that the land in Survey No. 168/1 and 2 is “Anadeenam-Punja and Gayalu”. The lands in Saradhi village, in which the petition schedule property is situated, are surveyed and assigned lands that are prohibited for any transfer. The petitioners' claim that the property purchased is not valid. The respondent has no title. The defence has gone through the petitioners, denying the respondent's title on the ground that the lands are unalienable. Thus, the petitioners seriously dispute the nature of the land. They pleaded the nature of the land based on the survey conducted and records prepared, such as SLR, Adangal, FMB, etc. The petitioners have referred to these documents in their written statement. However, it is on record that those documents were not filed along with the written statement.

Legal Position:

13. The petitioners have filed this application under Order 8 Rule 1-A of CPC, which reads as follows:

                  “1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.—(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, ins upport of his defence or claim for set-off or counter-claim, he shall enter such document in a list. He shall produce it in Court when he presents the written statement and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

                  (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

                  (3) A document which ought to be produced in Court by the defendant under this rule, but is not so produced, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

                  (4) Nothing in this rule shall apply to documents—

                  (a) produced for the cross-examination of the plaintiff's witnesses, or

                  (b) handed over to a witness merely to refresh his memory.”

                  *inserted as per the amendment dated 01.07.2002*

14. The provision says, defendants shall produce all the documents which are in their possession along with the written statement. If they are not in their possession, the defendants shall state whose possession they are in. The conditions in sub-clause (1) and (2) of Order 8 Rule 1-A, if not complied with, Rule 3 of Order 8 Rule 1-A would come. The documents which were not produced with the written statement, shall not be received in evidence without the leave of the Court. The provision does not bar the defendants from producing the documents after filing the written statement. Although sub-clause (1) and sub-clause (2) use the word “shall” in prescribing the production of documents and stating the requirement regarding possession, that by itself does not take away the mandate that non-compliance with the aforesaid two provisions would disentitle the defendants from producing such documents at a later stage of the hearing of the suit.

15. The sub-rule 1, 2 & 3 are to be read in conjoint. They envisage the procedure to assist the court as well the contesting parties, to know about the defense of the defendant, so that, in the following procedure, the real issues that are to be evidenced would be settled. Sometimes, the defendant may not produce the documents with written statement while filing the written statement, in such case, he has to mention in whose custody there are, even if the sub-rule 1 & 2 are not complied, the sub rule gives scope to produce the documents in evidence at later stage, but with the leave of the court only. The discretion is left to the court by the legislature, with an intent that, the discretion may be used cautiously, that, on non compliance of sub-rule 1 & 2, with the aid of sub-rule 3, of Order 8 Rule 1-A, the defendant do not make out a new case against to the opposite party. While considering the documents at later stage, the courts have to look into the provisions of Order 8 Rule 1-A of CPC.

16. It is settled law that, any evidence oral or documentary, it shall found place in the pleadings, else, it receives serious objections. Sub-rule 1 of Order 8 Rule 1-A, is the prime provision which aids the Courts to use discretion, relevant content is:

                  “Where the defendant bases his defence upon a document or relies upon any document”

17. This at the thresh hold, gives the direction, that, the defendant in his written statement first should have raised defense relying on certain documents. If the defense is placed on the strength of those documents, then filing of the documents leads to two conditions referring to the possession of those documents with him/her.

                  Condition 1: The documents that are in his possession.

                  Condition 2: The documents that are not in his possession.

18. If in possession of the documents, the defendant needs to file them with written statement. If not in possession, he need not to file, but can say in whose possession they are.

19. If in possession, and were not filed, still he can file them under sub-rule 3 of Order 8 Rule 1-A. If not in possession, did not say in whose possession, still he can file under sub-rule 3 or Order 8 Rule 1-A. The provisions do not bar to file them. However, the discretion is given to the courts to grant leave. While using discretion, courts have to follow the basic principle that, the documents were found their reference in the pleadings of defense. The courts have to use their discretion carefully, referring the defence of the defendant.

20. If the defense is found place referring the documents, then comes the later part or sub-rule 3 of Order 8 Rule 1-A, i.e. receiving in evidence. The evidence can be oral or documentary. As to the documents concerned, to receive in evidence, the courts have to see, whether that document is prima facie permissible by law to look into or barred by law.

21. It is nevertheless the law that, the similar scope of filing documents at a later stage is also available to plaintiff under the code.

22. With the above analysis, I now refer to the present case with the support of legal position.

23. In Anisetty Nageswara Rao case (cited supra), this Court relied on Bipin Shantilal Panchal v. State of Gujarat and another (AIR 2001 SUPREME COURT 1158), wherein it is observed and held that, the procedure is handmade justice. If the documents, on their face, are barred by law, they cannot be received. Otherwise, the scrutiny of the documents is left open as to their evidentiary value.

24. Anisetty Nageswara Rao case (cited supra) referred to the case of Bipin Shantilal Panchal case (cited supra), wherein the Hon'ble Apex held as follows:

                  "8. In the decision of Bipin Shantilal Panchal, the Hon'ble Supreme Court opined that passing a detailed order allowing or rejecting the objection regarding admissibility of any document and giving time by suspending the trial to enable the parties concerned to move the higher Court against such Interlocutory Order was not proper. Instead, the Court should make a notice of such objection and decide it at the last stage of the Final Judgment, however, except where the objection relates to deficiency of stamp duty of a document.

                  9. In C.R.P.No.4776 of 2016 (KottakotaLakkappa) referred to above, on which reliance is placed by the learned counsel for the petitioner/plaintiff, a learned Judge of this Court was dealing with a Revision against the order rejecting an application filed under Order VIII Rule 1-A of CPC, to receive the documents when the suit is coming for the evidence of defendants. The learned Trial Court dismissed the said application relying on the decisions in Ravi Satish v. Edala Durga Prasad and Voruganti Narayana Rao v. Bodla Rammurthy. While examining the correctness of the order of dismissal, the learned Judge, while noting that the documents were very much available with the defendants/revision petitioners at the time of filing of the written statement, but they did not file the same and referring to the decisions in Ravi Satish and Voruganti Narayana Rao referred to supra, was not inclined to interfere with the order under Revision.

                  10. In Ravi Satish's case, a learned Judge of the erstwhile High Court of Andhra Pradesh at Hyderabad, while opining that grant of leave is not for the mere asking, nor is the Court a mere Post-Office to receive documents even in the absence of reasons being furnished for failure to file the said documents along with the written statement, upheld the order of the Trial Court rejecting the application filed under Order VIII Rule 1-A (3) of CPC. In the said case, no reasons whatsoever have been furnished by the petitioner therein, let alone adequate cause as to why the documents, which were the subject matter of the application, could not be filed earlier along with the written statement.

                  11. In Voruganti Narayana Rao's case, a learned Judge of the erstwhile High Court of Andhra Pradesh at Hyderabad set aside the order of the Trial Court allowing the application filed under Order VIII Rule 1-A of CPC. In the said case, no specific plea was raised by the respondents/defendants that 2009 (3) ALT 236 2011 (6) ALT 299 the documents were misplaced. While allowing the Revision Petition, the learned Judge opined that the respondent therein failed to furnish proper and sufficient reasons for receiving the documents, at a far too belated stage.

                  12. In the present case, the respondents herein had specifically stated that the documents in question are misplaced and further that the same are important to prove their case. Thus, it is not a case where no reasons were assigned at all. Therefore, the decisions relied on by the learned counsel for the petitioner/plaintiff, in the considered opinion of this Court, are of no help."

                  **(relevant portion extracted)

25. In the Bipin Shantilal Panchal case (cited supra), the dictum is except for the objection of deficiency of stamp duty, the courts can consider the objections and decide in the final judgment. In the Anisetty case (cited supra), the facts show that the respondents filed an application to receive documents at a belated stage on the ground of misplacement, which in view of the documents not barred by law such as stamp duty, and then considered the reason assigned to receive the documents that, they are misplaced is accepted and granted leave to receive the documents.

26. In the case of Levaku Pedda Reddamma case (cited supra) relied by learned Government Pleader, it is held that rules of procedure are made in the hands of justice. When there is delay in filing the documents, it can be compensated by costs. Preventing a party from filing documents merely on the ground of delay would result in a denial of justice. Therefore, even if there is some delay, the trial Court should impose costs rather than decline the production of the documents itself.

27. It’s not rejection of production of documents that envisaged in the provision. Rejecting the documents' admissibility at the time of trial is not correct, except where there is a deficiency of stamp duty; the objection shall not be considered at the time of receiving the documents under interlocutory orders. Admissibility and receiving in evidence are two different aspects.

28. In both the case, in those circumstances, documents were received.

29. In the present case, the written statement refers to the documents relied by the petitioners. Further, these are the government records. It’s no one’s case that, these documents requires stamp duty. Admittedly these are in possession of the petitioners. Therefore, the courts have to see the reasons assigned to receive the documents.

30. I am of the same view that the rules are made in the hands of justice; a party cannot be prevented from filing documents unless they are barred from receiving due to lack of stamp duty. The purpose of adjudication is substantive justice.

31. The receiving in evidence arise on production of evidence. On production, the Court has to see, the foundation of produced evidence in pleadings. It foundation is where production of evidence (document) can be considered. Then comes admissibility. This requires scrutiny through the examination, witnesses and legal course.

Present case:

32. In the present case, the petitioners have been arguing that the schedule property is Government land. They have relied on and referred to the documents SLR, FMB, and Fair Adangals. The petitioners did not bring these documents for the first time, to the surprise of the respondent.

33. The respondent's contention in opposing the application is mainly in two folds. One is that the documents are in the custody of the District Collector and that the District Collector ought to have certified them. The other defence is that DW1 (Tahsildar) was already examined, but these documents were not filed with DW 1. The Tahsildar certified the documents, and DW2 (the Surveyor) brought them in. DW 1 might have filed those documents.

34. The said contentions of the respondent are not valid grounds for consideration in the light of the analysis of the provisions of Order 8 Rule 1-A of CPC.

35. First, on perusal of the written statement, a specific assertion is made that the survey of lands was done, and SLR, FMB, and Fair Adangals, etc., were prepared for the subject land. That is to say, the petitioners have laid their foundation pleadings referring to the documents.

36. Secondly, the respondent has made the parties, Mandal Tahsildar as the 1st Defendant, Mandal Surveyor as the 2nd Defendant, Village Revenue Officer as the 3rd Defendant, Revenue Divisional Officer as the 4th Defendant and the District Collector, as the 5th Defendant. The witness DW2 is a party to the suit and an official surveyor. Petitioners 1 to 4 are part of the 5th Petitioner, the District Collector, and belong to the same department. According to the respondent, the 5th Petitioner, the District Collector, is the custodian of the documents. As he is a party to the proceedings and the other petitioners are associated with him, the 5th Petitioner can transmit the documents to the other petitioners. Thus, the documents emanated from the 5th Petitioner with his permission and probably from all the petitioners concerned.

37. Therefore, I am of the view that the first criteria of sub-rule 1 of Order 8 Rule 1-A of CPC is complied with, as the documents were found placed in the pleadings of the defence and possession of documents is admittedly with the petitioners only.

38. Now, sub-rule 3 of Order 8 Rule 1-A of CPC is relevant to deal with, i.e. the discretion of the Court, whether the learned Judge has exercised the discretion properly. On perusal of the order, the learned Judge apparently has not discussed his observations under sub-rule (1) of Order 8 Rule 1-A of the CPC.

39. To this, the respondent objects that DW2 has brought in the documents; this is not a tenable ground to consider. One reason is that he is a party to the suit. He is part of the survey process. The survey of the land might have been done by a Government Surveyor. The 2nd Petitioner herein may not have surveyed in 1960, but is the official Surveyor. He filed the affidavit and intends to be examined as DW2. The argument is that the said Surveyor, who works on the ground and prepares SLR, FMB, and Fair Adangals, etc., would prepare the survey report. In such a case, he is the proper party to speak to the survey process and the documents. As the documents emanate from the office of the District Collector, who is the 5th Petitioner, it cannot be said that these petitioners 1 to 4 do not have access to those documents. Thus, the learned counsel's argument that the petitioners have not explained how they obtained custody of the documents, and that DW1 ought to have filed those documents, is not tenable.

40. The other objection of the respondent that the documents ought to have been certified by the District Collector-5th defendant, but not the Tahsildar-1st Defendant, is also not tenable, as the documents are from the office of the 5th Petitioner only. Further, certification is to the extent that they emanate from the office, are in their possession and that the originals exist. The contents, binding nature and truth of the document are established through oral evidence from the person who speaks about the documents. Further, the documents per se are not barred by law, such as deficit stamp duty or registration. They speak about the nature of the land. Thus, the witness can be questioned about their truthfulness. The respondent does not deny that these documents exist; rather, it alleges they were created. Such an allegation cannot be considered at the time of receiving, but it can be scrutinized in evidence.

41. The ruling relied upon by the learned Judge, R.Saraswathi case (cited supra), in view of the above legal position, does not apply to the present facts as the factual aspects are distinguishable. In R.Saraswathi case (cited supra), the observation was that the documents were referred to in the written statement, but were not filed along with the written statement, though they were available with the petitioners by the time the written statement was filed. Whereas, in the application for receiving the documents, the respondents stated that the documents were not in their possession. The High Court observed that the said contradiction takes away the stand of the respondents under Order VIII Rule 1-A CPC. Further, the reason assigned that the documents were traced out recently was not accepted.

42. In the present case, the documents were referred to in the written statement and there is no dispute that these documents were in possession. There is no contradictory statement in the application for receiving the documents. The reason assigned is that they were kept for verification at the Head Office. It is not the case that the documents were not traceable at the time of filing the written statement or at the time of filing the present application for receiving the documents. The reasons assigned to receive the documents are thus cogent in line with the Anisetty case (cited supra), Levaku Pedda Reddamma case (cited supra), and the applicability of the Bipin Shantilal Panchal case (cited supra),.

43. In this case, the reference of the documents is made, admittedly these documents are in the custody of the petitioners, as such, it can be said that, those are not brought out of the way, but from their office, however with delay. The reason for delay is mentioned. That is acceptable in view of the whole gamut of the facts of the case and defence of the parties. Thus, though sub-rule 2 of Order 8 Rule 1-A is not complied with, since part compliance of the sub-rule 1 of Order 8 Rule 1-A is there, the discretion under sub-rule 3 of Order 8 Rule 1-A can be invoked for substantial justice.

44. The respondent has made all the petitioners as defendants in the suit. They are from the same Department, headed by Petitioner No.5. They are not alien to the subject matter of the suit. Sub-clause (3) of Order 8 Rule 1-A of CPC does not restrict the production of a document, it prescribes leave of the Court. The Court ought to have granted leave considering the factual aspects and legal position, using discretion on the sound principles of sub-rule 1 of Order 8 Rule 1-A of CPC. The rules of procedure are made to ensure substantive justice, not to defeat the adjudication of the real dispute.

45. In the given case, the title and possession are denied and are to be adjudicated on merits. The documents sought to be received and relied upon have already been referred to in the written statement and emanate undisputedly from the custody of an authorised person, i.e., the District Collector, through petitioners 1 to 4. Thus, in my view, when the criteria under sub-rules 1 & 2 of Order 8 Rule 1-A of CPC are partly complied with, sub-rule 3 of Order 8 Rule 1-A of CPC is applicable when the respondent has made all petitioners as parties, and one party produces the documents. They cannot be denied receiving on the ground of authenticity of origin or that they ought to have been produced by one party only. Documents not filed with the written statement can be received, with the leave of the Court, in evidence if a foundation is in the pleadings, and cogent reasons for non-filing memo is given unless barred by law. Once received, the evidentiary part arises from the documents to establish them. The evidentiary value, binding effect, and truthfulness of the documents are then subject to scrutiny through oral evidence, where the witness speaks to the documents, and the documents themselves are examined. That is left open to the parties at any given time.

46. Therefore, applying the legal position to the present facts of the case, I am of the view that the learned Judge's rejection of the application to receive the documents on the technical ground that they were not filed with the written statement is not correct. The learned Judge misapplied the provisions of Order 8 Rule 1-A of CPC, as, more particularly, these documents are already referred to in the written statement.

Conclusion:

47. In the light of the above reasons, rejecting the application seeking leave to receive the documents relied upon by the petitioners, filed at a later stage after filing of the written statement, is not proper. The reasons assigned do not support the rejection and, therefore, the same requires consideration and interference, for the following reasons:

                  i. The reason explained in the impugned order for rejecting the application is not proper;

                  ii. The documents sought to be received are not documents which were not referred to in the written statement;

                  iii. They are not inadmissible documents or documents barred by law;

                  iv. The witness through whom the documents are sought to be produced is one of the parties to the suit; and

                  v. The documents are from the custody of the 5th petitioner.

48. Accordingly, the point is answered.

49. As to the truthfulness of the documents, they are subject to oral testimony. Hence, the impugned order is liable to be set aside.

Result:

50. In the result, the petition is allowed as follows:

                  (i) The order dated 05.12.2016 in I.A.No.218 of 2016 in O.S.No.254 of 2009 on the file of learned Civil Judge (Junior Divison), Rajam, is hereby set aside and I.A.No.218 of 2016 in O.S. No. 254 of 2009, stands allowed.

                  (ii) The documents annexed to I.A.No.218 of 2016 are hereby received on behalf of the defendants, subject to proof and relevancy.

                  (iii) The parties are at liberty to raise their objections as to genuineness, certification, etc. at the time of evidence.

                  (iv) The learned Civil Judge (Junior Divison), Rajam is directed to proceed as per due procedure of law upon receiving the documents.

                  (v) In the circumstances, no costs.

The interim order of stay granted previously is hereby vacated and interlocutory applications, if any pending, shall stand closed.