1. The Appellant is aggrieved by an order dated 26th March, 2010 passed by a learned Single Judge in IA. No. 3111/2010 in CS (OS) No. 812/1997. In a suit filed by the Appellant, an application was moved by the Respondent under Order VIII Rule 1A(3) read with Order XVIII Rule 4(1) read with Section 151 of the Code of Civil Procedure for permission to place on record some additional documents. The additional documents were sought to be placed on record through an affidavit by way of evidence. The application was objected to by the Appellant which led to the impugned order being passed by the learned Single Judge.

2. Learned counsel for the Appellant has drawn our attention to Order VIII Rule 1A(1) and Order VIII Rule 1A(3) of the Code of Civil Procedure, which read as follows:

VIII. WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM

1. xx xx xx xx

1A Duty of defendant to produce documents upon which relief is claimed or relied upon by him. (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) xx xx xx xx

(3) 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.

3. Learned counsel for the Appellant has also drawn our attention to Order XVIII Rule 4 of the Code of Civil Procedure, particularly Sub-rule (1) while learned counsel for the Respondent has drawn our attention to sub-Rule (4) thereof. Both these provisions read as follows:

XVIII. HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

1. xx xx xx xx

2. xx xx xx xx

3. xx xx xx xx

4. Recording of evidence

(1) In every case the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:

Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.

(2) and (3) xx xx xx xx

(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:

Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.

4. The contention of learned counsel for the Appellant is that the documents filed along with the affidavit by way of evidence ought not to have been received by the learned Single Judge and the question of their being received is required to be considered at this stage itself. He submits that at a later stage a decision could have been taken by the learned Single Judge whether the documents are admissible or not.

5. On the other hand, learned counsel for the Respondent has submitted, without prejudice to his contention that the appeal itself is not maintainable in view of the decision of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania and another,(1981) 4 SCC 8 [LQ/SC/1981/332] that the question whether the documents should at all be received or taken into evidence is a matter that can be decided by the learned Single Judge at the time of final arguments. At the present stage, the Local Commissioner who has been appointed to record the evidence can record the objection raised by the Appellant and this can then be decided by the learned Single Judge. In support of his contention, learned counsel for the Respondent relies upon La Chemise Lacoste and another v. Crocodile Indl. Pte. Ltd., 2007 (34) PTC 382. [LQ/DelHC/2007/131]

6. In our opinion, the appeal is premature inasmuch as the question whether the documents should at all be received or accepted as evidence is a matter that can be decided by the learned Single Judge at the time of final hearing of the case. Presently, no serious prejudice is caused to any of the parties if cross-examination of the witness is conducted by the Appellant on the basis of the documents attached to the affidavit by way of evidence. Needless to say that the Local Commissioner would be obliged to record the objections that the Appellant has to the reception of these documents.

7. The issue whether the documents should at all be received and their admissibility will, of course, be decided by the learned Single Judge at the time of final hearing of the case. We need not express any opinion on this, one way or the other.

8. Learned counsel for the Appellant assures us that the examination of the witness of the Respondent, who is present today, will be conducted in accordance with the order passed by the learned Single Judge.

9. We do not find any merit in the appeal. It is accordingly dismissed. However, the Appellant is at liberty to agitate the issues raised before the learned Single Judge at the time of final hearing of the case. A copy of the order be given dasti to learned counsel for the Appellant.