Patna High Court
Kamleshwari Prasad Singh vs Suja Singh And Ors. on 29 September, 1983
Equivalent citations: AIR 1984 PATNA 152, (1984) PAT LJR 361
ORDER Ashwini Kumar Sinha, J.
1. This is plaintiff's application against an order dated 21st Feb. 1983, by which the court below has refused to admit one document, which is plaint of Title Suit No. 1013 of 1916, as evidence in the suit.
2. The court below has refused the prayer of the plaintiff on the ground that Order XVIII. Rule 17-A of the Civil P. C. (hereinafter referred to as the Code) was a bar for admitting the document as evidence in the suit at the stage at which it had been filed and the other reason given by the court below is that if the document is admitted into evidence at this stage, it will cause serious prejudice to the defendants,
3. Learned Counsel Has submitted that due to inadvertence, the original plaint of Title Suit No. 1013 of 1916, which was already on the record, could not be marked as an exhibit in the case, and the court below should have admitted the document as an evidence in the suit, after it was allowed to be called for from the record room of the District Judge, Mohghyr, in the ends of justice. In order to appreciate the submissions advanced by learned Counsel for the petitioner, it is essential to state few facts.
4. The plaintiff-petitioner filed Title Suit, No. 48 of 1979, praying for the following reliefs:--
"(a) That it be declared by the court that the plaintiff has full title on the disputed land, and that the defendants had no interest, nor have they any concern with the disputed land and that the plot of land without number towards north east of Plot No. 1482 as shown in the survey map in which, after the Tanaza was found to be a part of plot No. 1482 and the plot of land of 1482 which is south find east which is the disputed land, the defendants had no manner of concern nor have they any concern with the aforesaid disputed land.
(b) That the court may be pleased to direct the defendants not to interfere with the peaceful possession of the plaintiff hereafter.
(c) Costs of the suit may be awarded to the plaintiff.
(d) Any other relief or reliefs, if the court thinks proper may be granted to the plaintiff."
5. Title Suit No. 1013 of 1916 was a suit filed by the ancestors of the defendants. The document in question is more than 66 years old. The present suit proceeded in its usual course and on the 25th Aug. 1981, the petitioner filed an application along with a list of documents, with a prayer to call for the same (i. e., the plaint of Title Suit No. 1013 of 1916), from the record room. This prayer of the plaintiff was allowed by the court by its order dated 27th Aug. 1982. The trial court received the original plaint of Title Suit No. 1013 of 1916, as well as a compromise petition in the suit and its decree, which were called for from the record room of the District Judge. Monghyr. and it is apparent that the court directed that those papers be placed on the record of the suit. The hearing of the suit proceeded and the plaintiff closed his case on 24th Jan. 1983, but the plaint of Title Suit No. 1013 of 1916, which was duly called for by the court below itself and which was already on the record, could not be marked as an exhibit on behalf of the plaintiff.
6. On a perusal of the impugned order, it is clear that the defendants also have closed their case, but arguments are still to begin.
7. On 22nd Feb. 1983, after the close of the plaintiffs case, the defendants themselves made prayer to the court to mark a certified copy of the decree of that title suit (Title Suit no. 1013 of 1916) as an exhibit. This prayer of the defendants was allowed by the court and the decree of that title suit has been marked as Exhibit F.
8. One day earlier to this i. e., on 21st Feb. 1983, the plaintiff filed an application for admitting the plaint of Title Suit No. 1013 of 1916 as an evidence in the case after allowing the plaintiff to mark it as an exhibit. This petition was heard on the same day and order was passed in the presence of the parties and the court below by the impugned order rejected the prayer of the plaintiff. Although it will bear repetition, after the prayer of the plaintiff was rejected, the defendants themselves got a certified copy of the decree of that title suit marked as Ext. F. the very next day. i. e., on 22nd Feb. 1983.
9. The reference about the plaint of Title Suit No. 1013 of 1916 was already there in the plaint of the instant suit and thereby the defendants had full opportunity to explain the same and, in fact, the defendants, as stated above, have got a certified copy of the decree of that title suit marked as Exhibit F. The document in question being of 1916 is more than 66 years old and it has come from a proper custody, i. e., from the record room of the Civil Court. This suit, the plaint of which is sought to be admitted as evidence in the present suit was filed by the ancestors of the defendants themselves and the learned Counsel appearing for the defendants Opposite Party has not disputed this fact.
10. In view of the aforesaid facts, what has to be considered by this Court is whether the court below was right in refusing the prayer of the plaintiff.
11. Under Order XIII, Rule 1 of the Code, a Party is entitled to produce all the documentary evidence which he intends to rely at or before the settlement of the issues. Under Order XIII, Rule 2 of the Code, no documentary evidence in possession or power of any party, which should have been, but has snot been, produced in accordance with the requirements of Rule 1, can be received at any subsequent stage of the proceedings, unless good cause is shown to the satisfaction of the court for the non-production thereof. But, if the party satisfies the Court and the Court receives such evidence, the Court receiving such an evidence shall record reasons for so doing. In other words, even if the parties do not produce all the documentary evidence in their possession on which they intend to rely, at or before the settlement of the issues, it can be received at a later stage provided that good cause is shown to the satisfaction of the Court.
12. Order XVIII Rule 17-A of the Code reads as follows :--
"Where a party satisfies the Court that, after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just."
13. The court below has taken a view that Order XVIII, Rule 17A of the Code comes as a bar in allowing the prayer of the plaintiff. This rule (Rule 17-A) has been put on the Statute by the Code of Civil Procedure Amendment) Act. 1976 (Act No. 104 of 1976). On a perusal of this rule it is apparent that it was inserted to permit production of additional evidence which was not within the party's knowledge or which could not be produced when leading evidence, at a later stage. In my opinion, the object of inserting Rule 17-A is very clear. It is often seen that applications for additional evidence are filed at the appellate stage, and, if filed, it has to be dealt with in accordance with law and it naturally delays the disposal of the suit. In my opinion, it is with this view that a provision was enacted in 1976, so that the filing of applications for additional evidence at a later stage, i e., at the appellate stage, is minimised to a large extent. Rule 17A, as stated earlier, allows a party for production of evidence not previously known or which could not be produced despite due diligence, The rule, as it stands, in its terms, is not mandatory, as the court below has thought of. It is only directory and, in principle, it makes no difference in a case falling under Order XVIII. Rule 17A, and a case falling under Order XIII. Rule 2 of the Code, in both the situations, the party has to make a good cause and has to satisfy the court of the reasons which prevented him from producing the same at the proper time. It is the satisfaction of the court and if the court is satisfied, then, in that case, the court may permit the party to produce that evidence even at a later stage on such terms as may appear to it to be just.
14. All the relevant facts have already been stated above. On the facts of this case, the court below should have allowed the plaintiffs prayer on such terms as it appeared to the court to be just aS the document in question was called for by the court itself on the prayer of the plaintiff and as the document was already on the record as the document was old by 66 years, and as the defendants themselves got the certified copy of the decree of that title suit marked as Exhibit F. the court below should have, in the ends of justice, allowed the plaintiff's prayer ex debito justitiae. In my opinion, the court below, on the facts of the case, is not correct in stating that the document, if admitted, would cause serious prejudice to the defendants. The court below has also wrongly held that Order XVIII, Rule 17A of the Code was a bar. I have already held above that Order XVIII, Rule 17A of the Code is not mandatory. I hold that the court has acted illegally in exercise of its jurisdiction and I further hold that if the order is allowed to stand, it will occasion a failure of justice.
15. In the result, this application is allowed and the order dated the 31st February. 1983, is set aside. The court below is directed to allow the plaintiff to mark the original plaint of Title Suit No. 1013 of 1916 which is already on the record, as an exhibit in this case. However, the defendants shall be at liberty to adduce evidence in rebuttal. It is only thereafter that the court below will proceed to hear the arguments of the learned counsel for the parties and dispose of the suit in accordance with law. However, there will be no order as to costs.