Patna High Court
Adalat Choudhary vs Satan Choudhary And Ors. on 11 November, 1983
Equivalent citations: AIR1984PAT223, AIR 1984 PATNA 223, 1984 BBCJ 377
ORDER Ashwini Kumar Sinha, J.
1. This is an application by defendant No. 2 and is directed against order dated 18-3-1983 ( in Title Suit No. 101 of 1975) refusing to take a document of the petitioner in evidence. The court below has refused to take the document in question in evidence on the sole ground that the plaintiff had closed his case and it is at that stage that the petitioner (defendant No. 2) had come up before the court with a prayer to take the document in question in evidence.
2. The petitioner contended in the court below that the petitioner had shown good cause for the non-production of the document in question on or before the settlement of the issues. The court below has negatived the contention of the petitioner.
3. The learned counsel appearing for the petitioner has contended before me that the court below has acted illegally in exercise of its jurisdiction and also with material irregularity in refusing to take the document in question in evidence and has further contended that if the impugned order is allowed to stand, it will occasion a failure of justice.
4. In order to appreciate the contention raised by the learned counsel for the petitioner, some relevant facts have to be staled. The plaintiff-opposite party No. 1 instituted a suit (Title Suit No. 101 of 1975) for specific performance of contract on the basis of an alleged Mahadanama said to have been executed by defendant No. 1 in his favour. The other facts, as in the plaint, are not necessary to be stated for the purpose of deciding the instant application. The defendant No. 2 petitioner appeared in the suit on 1-3-1983 and prayed to the Court for allowing him to file a written statement, which prayer was allowed and the Court directed the petitioner to file the written statement by 7th of March, 1983, which was filed within the time granted by the Court. Thereafter the plaintiff started adducing evidence of his witnesses. By 18-3-1983 the plaintiff had closed his case.
5. On 18-3-1983 the petitioner filed a petition in the Court below with a prayer to allow him to adduce the certified copy of the sale deed executed by Mostt. Guljaria (defendant No. 1), opposite party No. 2 in the instant application, in favour of the petitioner. The petitioner's case was that he had filed the original document in another proceeding for compulsory registration of the said sale deed in respect of some of the properties, which are included in the present suit. The petitioner's case further was that the original document was misplaced as it was in the custody of the Advocate of the petitioner at Chapra but he subsequently died, and the said document was not located even though the petitioner had made vigorous efforts, and that it was lost. Thereafter the petitioner started taking steps for the withdrawal of the certified copy of the aforesaid document from another Court and succeeded in obtaining the same from the Court of Munsif in Suit No. 47 of 1977 and the petitioner contended in the Court below that the said document, under the circumstances, was beyond his reach and in that view of the matter could not be filed earlier. According to the petitioner the said document was an evidence to show that the petitioner owned the property and that he was in actual possession of the properties covered by the said deed of sale and in the ends of justice the said document was essential to be taken in evidence, as in absence of the said document the point involved in the suit could not be adjudicated upon. On a perusal of the ordersheet dated 18-3-1983 (the impugned order) it seems that no rejoinder was filed either by the plaintiff-opposite party No. 1 or by any other defendants including defendant No. 1 Most. Guljaria. The learned counsel appearing for the opposite parties Nos. 3 to 8 ha.s not drawn my attention to any order to the effect that any rejoinder was filed by them or even by defendant No. 1 (opposite party No. 2) or, the plaintiff (opposite party No. 1).
6. The petitioner had appealed in the suit on 1-3-1983. He filed a written statement on 7-3-1983 within the time granted by the Court. The evidence of the plaintiff was started on 8-3-1983 and the document in question, which has been refused by the Court below to be taken into, evidence was Withdrawn, according to the petitioner from the Court of the learned Munsif a day earlier than 18-3-1983. The learned counsel appearing for the petitioner, has submitted that, in fact, the document was withdrawn from the Court of the learned Munsif on 17-3-1983 a day earlier than 18-3-1983 when the impugned order was passed; though in paragraph 6 of his revisional application in this Court it is not very clear as to oh what data exactly the document was withdrawn. The learned counsel appearing for the opposite parties Nos, 3 to 8 also has not drawn my attention to any paper to show that the petitioner had withdrawn the document in question much earlier than the plaintiff had begun his evidence.
7. On the facts as mentioned above, one thing is clear that the petitioner did not file an application in the Court below for taking the document in question into evidence earlier than 18-3-1983 and by this date the plaintiff admittedly, had closed his case. In other words, the stage for filing the document in question or other documentary evidences in possession or power of the petitioner, as envisaged under Order XIII, Rule 1 of the Code, (words have been underlined by me for emphasis) was already over. The plaintiff had begun his evidence and by 18-3-1983 had closed his evidence and at that stage the petitioner filed an application for faking the-document' in question Into evidence. The question is whether the. Court below has acted illegally in 'exercise of its' jurisdiction when it has refused to take the document 'in question into evidence on the sole ground that the plain tiff had closed his case.
8. Under Order XIII, Rule 1 of the Code a party is entitled to produce all the documentary evidences on which he intends to rely, at or before the settlement of 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 not been produced in accordance with the requirements of Rule 1, can be received at a subsequent stage unless good cause is shown to the satisfaction of the Court for non-production the reof. If the Court receives such evidence under Rule 2, Order XIH of the Code, the Court receiving such an evidence shall record reasons for so doing Thus, the effect of Rule 2 of the Code read with Rule 1 of Order XIH of the Code is that even if the party did not produce any documentary evidence in possession o'r power, at or before the settlement of issues it can be received at a later stage provided good cause is shown to the satisfaction of the Court,
9. The Court below, it seems, either has missed the provisions as contained in Order XVIII, Rule 17-A of the Code or the learned counsel appearing for the respective parties did not draw the Court's attention thereto. Order XVIII. Rule 17-A, which has been introduced in the Code by the Codd of Civil Procedure (Amendment) Act, 1976, reads as follows : --
"17-A. Production of evidence not previously known or which could not be produced despite due diligence.-- Where a party satisfies the Court that, after the exercjsg of due diligence arty 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 iatec stage on such terras as may appear to it to be just."
On a perusal of this rule it s 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. The object of inserting Rufe 17-A of Order XVIII is very clear. It is often seen that application for additional evidence is 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 the provision was enacted in 1976 so that the filing of application for additional evidence at a later stage i. e. appellate stage is minimised. Rule 17-A of the Code as stated earlier, allows a party for production of not only such an evidence which was not previously known but also for production of such an evidence which could not be produced despite due diligence. In principle, in my opinion, it makes no difference in a case falling within the ambit of Order XIII, Rule 2 of the Code and a case falling within the ambit of Order XVIII, Rule 17-A 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 a proper time. It is the satisfaction of the Court and if the Court is satisfied, the Court may permit the parry to produce that evidence even at a later stage on such terms as may appear to be fit.
10. In view of the well settled principles of law for admitting a document in evidence at a later stage or for refusing to take a document in evidence at a later stage, as referred to above, the question to be decided in the instant case is whether the Court below, by the impugned order, has correctly refused to take the document in question into evidence. The relevant facts of the instant case, for the purpose of deciding the legality or otherwise of the order in revision, have already been stated above. I have already stated above that on the application filed by the petitioner on 18-3-1983 for taking the document in question in evidence, no rejoinder was filed by the contesting opposite party (opposite parties 3 to 8). It seems no rejoinder was filed even by the plaintiff or by the defendant No 1. Thus, the factum of the withdrawal of the certified copy of the document from the Court of the learned Munsif only a day earlier, "which, according to the petitioner, is 17-3-1983" has not been disputed by She contesting parties. The Court below has refused to take the document in question into evidence on the sole ground that the plaintiff had closed his case and the defendant-petitioner could not be permitted, in law, to produce a document at such a belated stage. The power of the Court to allow a party to produce a document at a stage later than the settlement of the issues has already been dealt with above and the scope and ambit of the provisions as contained in Order XIII, Rule 2 and Order XVIII, Rule 17-A of the Code have already been explained above. Reference may also be made to the case of Kamaleshwari Prasad Singh v. Surja Singh, (Civil Revn. No. 343 of 1983 disposed of on 29th of September 1983) : (reported in AIR 1984 Pat 152). The close of the plaintiff's case, in view of the principles discussed above, was not a legal bar for the Court below to refuse to take the document into evidence. The Court could ask the defendant-petitioner to show good cause under the provisions of Order XIII, Rule 2 of the Code and if satisfied, could take it as an evidence after recording the reasons. The Court below also under Order 18, Rule 17-A could ask the defendant-petitioner to satisfy the Court about the exercise of due diligence on the part of the petitioner to the effect that document could not be produced at the proper time and the Court, if satisfied, could permit the party to produce that evidence on such terms as it appeared to be just. On a perusal of the impugned order, it is obvious that the Court below was oblivious of the provisions of Order 13, Rule 2 of the Code as well as the provisions as contained in Order XVIII, Rule 17-A of the Code and I hold that only because the plaintiff bad closed his evidence, it was not sufficient reason for the Court to refuse to take the document in question in evidence,
11. I would have sent the matter back for a consideration by the Court below whether a good cause was shown or not as provided under the provisions of Order XIII, Rule 2 of the Code or whether even after exercise of due diligence the petitioner could not produce the document in question at the proper time and whether the petitioner could be put to such terms as appeared just to the Court below; but the learned counsel for the parties have argued at length and have drawn my attention to all the papers available before this Court including the countes affidavit filed by the contesting opposite parties Nos. 3 to 8 and I am satisfied that the Court below, under a misconception of law, has passed the impugned order and has Wrongly refused to take the document in question into evidence.
12. I hold that the Court below has acted illegally in exercise of its jurisdiction and has also acted with material irregularity. I further hold that if the order is allowed to stand, it will occasion a failure of justice.
13. In the result, this application is allowed and the order dated 18th of March 1983 is set aside. The Court below is directed to take the document in question into evidence as an exhibit in the case. However, the plaintiff (opposite party No. 1) and the other defendants, if so advised, shall be at liberty to adduce evidence in rebuttal.
14. In the circumstances of the case, there will be no order as to costs.