Report No. 163
Q.17. Order 8, rule 1A (proposed) (Defendant's documents): Clause 18(11) of the Bill
Order 8, rule 1(2) at present, requires the defendant to file a list of documents on which he (proposes to rely. A document not so listed cannot be later received in evidence for the defendant, without the court's leave, for which reasons have to be recorded. This is the gist of existing Order 8, rules 1(2), 1(5) and 1(7). If the defendant relies on a document as the basis of his set-off or counter-claim, then that document must be physically delivered to the' court with the written statement.
Where no set off is claimed, but the defendant bases his defence on a document which is in his possession or power, the same also must be physically delivered to the court, along with the written statement, as provided by Order 8, rule 8A(1). If it is not so produced, it cannot be received in evidence for the defendant, without the leave of the court, under existing Order 8, rule 8A(2).
The Bill proposes to change this scheme, both in substance and in structure, by replacing existing Order 8, rules 1(2) to 1(7) and rule 8A, by Order 8, rule 1A, whose main features are as under:
(a) Defendant must list, produce and deliver, along with the written statement every document on which he relies
(i) whether it is a document which forms the basis of his defence (without set off etc.), or
(ii) whether it is a document on which he bases his set off or counter-claim, or
(iii) whether it is a document on which he merely "relies" (i.e. which is merely an evidentiary document and not a basic or foundational document).
(b) A document which is not so listed, produced and delivered, cannot be tendered in evidence on behalf of the defendant at the hearing of the suit. This bar is mandatory (under the Bill) and admits of no relaxation by the court, even if good cause is shown for its non-filing etc. [Contrast proposed Order 8, rule 1A(2), with existing Order 8, rule 1(5) and Order 8, rule 8A(2)].
It is a matter for serious consideration whether such a provision, admitting of no relaxation, would preserve the essentials of fair trial. It would even render nugatory Order 47, rule 1, under which the court can entertain a review application for evidence subsequently discovered. Other inconveniences may also result from the proposal. [See also Q.28, below].