MOHANRAJ RUPCHAND JAIN Vs. KEWALCHAND HASTIMAL JAIN

JUDGEMENT

(1.) Heard. Rule. By consent, the rule is made returnable forthwith.

(2.) The petitioner challenges the order dated 29th August, 2006 passed by the revisional bench of the Small Cause Count, Mumbai, in Revision Application no. 23 of 2006 and the order dated 3rd December, 2005 passed by the trial Judge in Interim Notice No. 1576 of 2005 in R. A. E. Suit No. 752 of 2004. The order of the trial Judge relates to the rejection of the application filed by the petitioner objecting the admissibility of certain documents which were sought to be produced on record along with the affidavit in evidence filed under Order XVIII, rule 4 of the Code of Civil Procedure, 1908 and the order of the Revisional court relates to the dismissal of the said revision against the said order of the trial judge.

(3.) The learned advocate appearing for the petitioner, placing reliance in the decision of the learned Single Judge in Sayarabi Sayyad Abdul Ajij (Deceased) , through L. Rs. vs. Shri Abdul Rashid Abdul Majid, reported in 2004 (5) Mh. LJ. 470 = 2004 (4) All MR 581, and Pacific Engineering Co. Pvt. Ltd. vs. East India hotels Ltd. , reported in 2004 (5) Mh. LJ. 450 = 2004 (4) All MR 330, has submitted that considering the provisions of Order VII Rule 14, it was necessary for the respondents to enter those documents in the list of documents annexed to the plaint and to produce copies thereof along with the plaint and in absence thereof, no document can be allowed to be produced without prior leave in that regard being obtained from the trial Court. The documents in question having been produced for the first time along with the affidavit under Order XVIII, Rule 4 of the Code without obtaining prior leave in that regard and in the absence of those documents being listed in the list of documents filed along with the plaint, nor copies thereof have been produced along with the plaint, the learned trial judge erred in dismissing the application filed by the petitioner objecting the admissibility of the said documents. He further submitted that he had specifically raised the plea of non-maintainability of the suit and on account of those documents being admitted, it will result in great prejudice to the petitioner. Since the order allowing the documents was prejudicial to the petitioner, the proper procedure for the petitioner to challenge the same was by way of revision, and therefore, the Revisional Court could not have dismissed the revision application holding the same to be not maintainable.