NILAMANI NAYAK Vs. SHANTILATA NAYAK AND ORS.

JUDGEMENT

(1.) This matter arises out of an order dated 10.4.2015 passed by the learned Civil Judge (Junior Division),Kendrapara rejecting an application under Order 8 Rule 1-A of the Code of Civil Procedure arising out of C.S.No.72 of 2004/T.S.No.61 of 1989.

(2.) Short fact involved in the case is that the opposite party no.1 as plaintiff filed T.S.No.61 of 1989 in the Court of learned Sub-Judge, Kendrapara. The said suit was transferred later on to the court of learned Civil Judge (Junior Division), Kendrapara on the ground of pecuniary jurisdiction and re-numbered as C.S.No.72 of 2004. The suit was filed for partition of the suit land in determining the share of the plaintiff at 5 paisa in 'A' schedule property and 1/4th share in 'B', 'C' and 'D' schedule property. On their appearance, the defendant nos.4 and 5 filed their written statement on 12.1.2015. Defendant no.5 as D.W.5 filed evidence on affidavit along with a petition for permission for acceptance of sabik khatiana, hal khatian and parcha, which documents could not be filed along with the written statement. As certified copy of the documents could not be mentioned in the petition dated 12.1.2015, subsequently defendant no.,5 filed another petition on 15.1.2015 along with list of documents of 23 sheets. Upon hearing the petitions, the trial court by the impugned order rejected the applications at the instance of the defendant no.5- petitioner taking resort to the provision contained under Order 8 Rule 1-A (3) as well as Order 13 Rule 1 of the Code of Civil Procedure.

(3.) Learned counsel for the petitioner contends that there is a scope in bringing the documents, referred to in the written statement, even at a later stage, but with a leave of the court concerned and the petitioner by filing the applications having sought the leave of the court, the applications would have been allowed. He further contends that the lower court has failed in appreciating the legal provision contained under Order 8, Rule 1-A(3) of the Code of Civil Procedure and thereby failed to realise the scope of the provision under Order 8, Rule 1-A (3) of the Code of Civil Procedure and, thus, claimed to set aside the impugned order.