Report No. 54
Order 8, rule 8A (New) (Production of document)
8.8. Order 7, rule 14 provides that where a plaintiff sues upon a document in his possession or power, he shall produce the document in Court when the plaint is presented. Where the plaintiff relies on any other documents (whether in his possession or power or not), as evidence in support of his claim, he has to enter such documents in a list to be added or annexed to the plaint. The Fourteenth Report1 recommended, that a similar provision should be made in the case of a defendant.
1. 14th Report, Vol. 1, para. 32.
8.9. This recommendation, however, was not agreed in by the Commission in the Report1 on the Code. The Commission felt that the distinction between a document upon which the plaintiff sues and a document upon which he relies, cannot properly be made in the case of written statement, "The only manner in which such a distinction can be made is between documents on which a defendant bases his defence and other documents on which he relies as evidence in support of his defence. In our opinion such a distinction would be unrealistic and impractical. A written statement merely answers the claim made in the plaint. In practice, it would be difficult to distinguish between documents on which the defence "is based" from other documents of purely evidentiary value. We, however, think that a defendant should enter in a list to be added or annexed to the written statement all documents on which he relies in support of his defence".
1. 27th Report, para. 28.
8.10. We have carefully examined the matter, and have come to the conclusion that the recommendation made in the 14th Report should be carried out. Barring very few cases, the distinction between the basic documents, and other documents should, we think, present no difficulty even in respect of the defence. We recommend therefore that a suitable amendment should be made as above. To achieve that object, the following rule should be inserted in Order 8 -
"8A. (1) Where a defendant bases his defence upon a document in his possession or power, he shall produce it in court when the written statement is presented, and shall, at the same time, deliver the document or a copy thereof to be filed with the written statement.
(2) 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.
(c) Nothing in this rule applies, to documents produced for cross-examination of the plaintiffs witnesses, or in answer to any case set up by the plaintiff subsequently to the filing of the plaint, or handed to a witness merely to refresh his memory."
8.11. Order 8, rule 10, deals with the procedure to be followed when a party fails to present a written statement called for by the court. This rule begins thus:
"Where any party from whom a written statement is so required, fails to present the same.....". Now, the word 'so' has been construed as limiting the operation of the rule to failure to file a written statement that was demanded under the preceding rule. (Order 8, rule 9), and not as covering the more frequent case of a written statement demanded under Order 8, rule 1.
8.12. In the earlier Report1, this lacuna was discussed, and an amendment was also proposed to remove this lacuna.
1. 27th Report, note on Order 8, rule 10.
8.13. We agree with this recommendation for amendment. We are also of the view that it should be obligatory on the Court to pronounce judgment when rule 10 applies, that is to say, when a party fails to file a written statement required by law.
8.14. Accordingly, we recommend that Order 8, rule 10 should be revised as follows:-
"10. Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within. the time permitted or fixed by the court, as the case may be, the court shall pronounce judgment against him. "