DUKHAN RAI Vs. MAHENDRA RAJ

JUDGEMENT

(1.) DEFENDANTS -petitioners, aggrieved by that portion of the order dated 15.9.2005 passed by the Subordinate Judge, Second, Patna in Title Partition Suit no. 376 of 2000, whereby it declined to take certain documents on record, have preferred this application.

(2.) SHORT facts giving rise to the present application are that the plaintiffs -Opposite patty nos.1 to 4 filed the suit for partition of the joint family property. In the suit they filed application for grant of injunction under Order XXXIX Rule i of the Code of Civil Procedure. Defendants -petitioners filed show cause and also filed photostat copy of the documents on 28.9. 2000 and 16.1.2001. Plaintiffs ' prayer for injunction was rejected by order dated 21.2.2001. Issues were settled by order dated 13.3.2002 and the party were directed to file their documents. It seems that thereafter the suit was dismissed for default by order dated 10.10.2002 and ultimately restored by order dated 29.12.2004.

(3.) BY reason of the impugned order though documents whereof photostat copies were filed earlier have been taken in evidence but the other documents not taken in evidence. While doing so, it observed that since Order XVIII Rule 17A of the Code of Civil Procedure, hereinafter referred to as the Code, has been omitted by Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999), there is no scope for production of such documents at the stage of trial, not disclosed at the time of presenting written statement or before settlement of issue.