Case Note & Summary
The petitioners filed a suit for partition and separate possession (O.S.No.696/2008) in the Court of Principal Civil Judge, Mangalore. The defendants contested the suit and filed a written statement. Issues were framed on 04.02.2010. Subsequently, defendant No.1 filed a memo dated 27.03.2010 seeking to produce certain documents. The trial court allowed the memo by order dated 05.11.2012. The petitioners challenged this order by way of a writ petition under Articles 226 and 227 of the Constitution of India. The High Court examined the provisions of Order VIII Rule 1A CPC, which requires that documents relied upon by the defendant must be filed along with the written statement. If not so filed, they cannot be received without the leave of the court. The memo filed by the defendant was not supported by an affidavit and did not seek leave of the court. The High Court held that the trial court's order allowing the memo was illegal and without jurisdiction. The impugned order was quashed, and the writ petition was allowed.
Headnote
A) Civil Procedure - Production of Documents - Order VIII Rule 1A CPC - Documents not filed with written statement cannot be received without leave of court - The trial court erred in allowing a memo filed by the defendant to produce documents without an affidavit and without seeking leave under Order VIII Rule 1A(3) CPC - Held that the order is illegal and liable to be quashed (Paras 1-6).
B) Civil Procedure - Memo for Production - Order VIII Rule 1A CPC - A memo simpliciter without an affidavit or pleading cannot be treated as a valid application for production of documents - The court must ensure compliance with procedural requirements before receiving documents - Held that the impugned order is set aside (Paras 5-6).
Issue of Consideration
Whether the trial court was justified in allowing a memo filed by the defendant to produce documents without an affidavit and without seeking leave of the court under Order VIII Rule 1A CPC, when the documents were not part of the pleadings.
Final Decision
The writ petition is allowed. The order dated 05.11.2012 passed by the Principal Civil Judge, Mangalore, on memo dated 27.03.2010 in O.S.No.696/2008 is quashed.
Law Points
- Order VIII Rule 1A CPC
- Order VIII Rule 1A(3) CPC
- Order XIII Rule 1 CPC
- Section 151 CPC
- documents not part of pleadings cannot be received without leave of court
- memo for production of documents without affidavit is not maintainable
Case Details
2015 LawText (KAR) (10) 9
Writ Petition No.52988/2013 (GM-CPC)
S. Vishwajith Shetty for petitioners; G. Ravishankar Shastry for respondent No.1
Sri Abu Saleh Khan and others
Sri Abdul Karim Khan and others
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil writ petition challenging an order of the trial court allowing a memo for production of documents in a partition suit.
Remedy Sought
Quashing of the order dated 05.11.2012 made on memo dated 27.03.2010 in O.S.No.696/2008 by the Court of Principal Civil Judge, Mangalore.
Filing Reason
The trial court allowed a memo filed by defendant No.1 to produce documents without an affidavit and without seeking leave under Order VIII Rule 1A CPC.
Previous Decisions
The trial court allowed the memo on 05.11.2012.
Issues
Whether the trial court was justified in allowing a memo filed by the defendant to produce documents without an affidavit and without seeking leave of the court under Order VIII Rule 1A CPC?
Whether the impugned order is illegal and liable to be quashed?
Submissions/Arguments
The petitioners argued that the memo filed by the defendant was not supported by an affidavit and did not seek leave of the court as required under Order VIII Rule 1A CPC.
The respondent No.1 contended that the trial court had discretion to allow the memo.
Ratio Decidendi
Under Order VIII Rule 1A CPC, a defendant must file documents along with the written statement. If not, they cannot be received without the leave of the court. A memo without an affidavit and without seeking leave is not maintainable. The trial court's order allowing such a memo is illegal and without jurisdiction.
Judgment Excerpts
The petitioners have instituted O.S.No.696/2008 in the Court of Prl. Civil Judge, Mangalore, D.K., to pass a decree for partition and separate possession of the plaint schedule properties against the defendants.
A Memo was filed by defendant No.1, on 27.03.2010, to produce certain documents.
The trial Court, by the impugned order dated 05.11.2012, allowed the memo.
Order VIII Rule 1A CPC provides that a defendant shall produce the documents relied upon by him along with the written statement.
The memo filed by the defendant was not supported by an affidavit and did not seek leave of the court.
The impugned order is illegal and is liable to be quashed.
Procedural History
The petitioners filed O.S.No.696/2008 for partition. Defendants filed written statement. Issues framed on 04.02.2010. Defendant No.1 filed a memo on 27.03.2010 to produce documents. Trial court allowed the memo on 05.11.2012. Petitioners filed writ petition under Articles 226 and 227 of the Constitution challenging the order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order VIII Rule 1A, Order VIII Rule 1A(3), Order XIII Rule 1, Section 151
- Constitution of India: Articles 226, 227
