Punjab-Haryana High Court
Raju Sharma vs Pardeep Kumar And Ors. on 10 February, 1999
Equivalent citations: (1999)121PLR612
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. By this common order I propose to dispose of two civil revisions being CR No. 1687 of 1998 and CR 1956 of 1998. Plaintiffs Pardeep Kumar and others had instituted a suit for declaration to the effect that plaintiff and the defendants are co-sharers and co- owners of the property mentioned in the schedule of the plaint and the alleged family settlement deed dated 27.9.1984 is illegal being result of a fraud and misrepresentation. Further, consequential relief of injunction was prayed for. The suit was contested by the defendants Manohar Lal and others. The Plaintiffs had closed the evidence. Three witnesses on behalf of the defendants had been examined. However, on 20.12.1997 as the defendants failed to produce entire evidence, the learned trial court closed the evidence of the defendant. It noticed that inspite of grant of last opportunity to the defendants the entire evidence was not present and as such the evidence of the defendants was closed. This order resulted in filing of present revision petitions before this Court. CR 1956 of 1998 has been filed alongwith an application (CM 5394 Cll of 1998) under Section 5 of the Indian Limitation Act praying for condonation of 49 days delay in filing the revision.
2. After passing of the order on or about March, 1998, the defendants filed an application under Order 18 Rule 17-A for permission to produce additional evidence and to place the documents stated in the application on record. This application was contested by the plaintiffs. Vide order dated 1.4.1998 the learned trial Court dismissed the application of the defendants. This order has been impugned by the defendant-petitioner in CR 1687 of 1998.
3. I have heard the learned Counsel for the parties at some length. The basic contention raised on behalf of the petitioner is that the learned Trial Court has not appreciated the controversy in issue and has not applied the correct preposition of law. According to the learned Counsel for the petitioner the learned Trial Court has failed to exercise jurisdiction vested in it and thus, has fallen in error of jurisdiction while dismissing the application for additional evidence. It is also contended by him that in the interest of justice another opportunity to complete his evidence should have been allowed to the petitioner and as such the order dated 20.12.1997 is liable to be set aside. On the other hand, the learned counsel for the respondents contends that both the orders passed by the learned trial Court dated 20.12.1997 and 1.4.1998 do not call for any interference and they are in consonance with the settled principles of law.
4. No reply to CM 5394 Cll of 1998 has been filed on behalf of the respondents. This application for condonation of delay is supported by an affidavit and it is stated that due to a bona fide mistake on the part of learned counsel, the documents could not be placed on record and secondly the said order dated 20.12.1997 was not challenged before the High Court. As the averments made in the application remain uncontroverted and a sufficient cause has been shown for not filing the revision within the prescribed period of limitation, I would condone the delay of 49 days in filing this revision. Accordingly, the CM stands disposed of.
5. It is true that last opportunity had been granted to the defendants to conclude evidence on 20.12.1997 on which date the evidence was closed. The defendant could not produce witnesses and also they were under a bona fide impression that the documents sought to be produced, should be placed on record first. It is in these circumstances the defendants had prayed for adjournment which was declined by the learned trial Court.
6. Once last opportunity is granted, the concerned party is under obligation to produce its entire evidence on the subsequent date but wherever the interest of justice demands the production of material evidence for effective determination of the subject matter of the suit, the grant of another opportunity would meet the ends of the justice. The orders rendering serious consequences like closing the evidence of a party normally should be proceeded with by an order of a lesser gravity like imposition of heavy costs etc. At this stage it may be relevant to refer to a judgment of this Court in the case of Joginder Singh and Ors. v. Smt. Manjit Kaur, CR. No. 5885 of 1998 pronounced on 14.1.1998.
7. In the above circumstances, I would set aside the order dated 20.12.1997 and grant another opportunity to the defendants to conclude - evidence subject to costs. It was also informed during the course of hearing that the plaintiffs have still not begun the evidence in rebuttal nor any other effective proceedings have taken place in the suit.
8. It has been averred by the petitioner that he was minor when the proceedings were commenced and were pending for recording of evidence and in the meanwhile his father Manohar Lal expired. As such, some of the documents could not be produced earlier. The documents sought to be produced now are public documents or are such documents the authenticity of which can hardly be challenged. The documents sought to be produced by way of additional evidence are the map sanctioned by the Municipal Committee, Narnaul dated 10.3.1972, rent deeds dated 4.12.1989, 28.2.1990, and dated 7.7.1993. The petitioner also wishes to produce the judgment dated 17.12.1991 passed by Sub Judge, Ist Glass, Mahendergarh. According to the petitioner these documents have a direct bearing on the matter in issue.
9. As already noticed, the suit relates to an immovable property and the ownership thereof. The parties are already at issue whether the family settlement dated 27.9.1984 is binding on the parties or it is illegal or void. In order to avoid unnecessary future litigation and to enable the' Court to completely adjudicate the matters in issue, the documents mentioned in the petition appear to be relevant and material. The only reason given by the learned trial Court for declining the application is that the evidence of the defendants was closed vide order dated 20.12.1997 and that the application was moved at a belated stage. An application for additional evidence normally pre-supposes that evidence of the parties has already been closed unless the application is for production of documents simplicitor. Secondly, the application for additional evidence can be moved at any stage. If the documents are relevant and have a material bearing on the issue, in that event, the court should be more receptive in receiving such documents in evidence. At this stage, a reference can be made to a judgment of this Court in the case of Banwari v. Nagina, (1998-1)118 P.L.R. 511. The relevant part of the order runs as under:-
"6. The concept of additional evidence has been given wider dimension in the recent judgment of Hon'ble Apex Court in Jaipur Development Authority v. Smt. Kailashwati Devi, (1997-3)117 P.L.R. 880 (S.C.). where the Court held that additional evidence could be allowed even at the Appellate stage under Rule 27(aa) of Order 41 CPC if the applicant satisfies the basic requirements of the rule and even no evidence has been led by the applicant at the trial stage, In that case exparte decree was passed against the defendant in the suit, the appeal was preferred before the High Court and two documents were sought to be filed which were in possession of the defendant relating to possession of the suit property. High Court rejected the said prayer, but the same was allowed by Hon'ble Apex Court.
7. The cumulative effect of the above well enunciated provisions governing the subject is that the Court has to exercise its jurisdiction to derive balance between ends of justice and extent of default of the applicant. The powers given to the Court under sub Rule 4 of Rule 2 of order 18 cannot be curtailed by reading the provisions of Rule 17-A of the same order. Both these provisions must be read and construed harmoniously so as to further cause of justice and necessary for effective and complete adjudication of rival contentions raised by the parties in a suit or proceedings. The procedural law must be moulded to farther cause of justice rather than frustrate the same. Non production of documents after exercise of due diligence appears to be very foundation for filing such an application. Compliance of this condition must be seen in context to the facts and circumstances of the case and in conformity with the record before the Court. Exercise of due diligence would have to give wider and meaningful connotation which must be in conformity with the basic rule of law. In some cases negligence of a party or counsel may not really have the effect of rendering such an application untenable. This view finds support from the case of Jaipur Development Authority (supra)."
10. For the reasons aforestated, I would set aside both the orders dated 20.12.1997 and dated 1.4.1998. While allowing both these petitions, I would grant last opportunity to the petitioner to produce the aforestated 5 documents on record and conclude his evidence on the next date of hearing before the learned trial Court. The petitioner shall be responsible to bring his entire evidence at his own risk and responsibility. He would be permitted to take summons for the date fixed but the presence of witnesses before the Court would be the responsibility of the present petitioner (defendant in the suit). The petitioner would not be entitled to any further opportunity except for paucity of time with the Court. The. petitioner would be entitled to said benefit subject to payment of Rs. 2,000/- as costs, costs being conditional.
11. Both the above revisions are allowed to the extent aforestated.