Punjab-Haryana High Court
Chandgi vs Mehar Chand And Ors. on 12 March, 1998
Equivalent citations: AIR1998P&H197, (1998)118PLR867, AIR 1998 PUNJAB AND HARYANA 197, (1998) 2 CIVILCOURTC 280, (1998) 3 LANDLR 47, (1998) 118 PUN LR 867, (1998) 1 RENTLR 709, (1998) 2 RECCIVR 354, (1998) 2 ICC 659, (1998) 2 CURLJ(CCR) 139
Author: Swatanter Kumar
Bench: Swatanter Kumar
ORDER Swatanter Kumar, J.
1. Whether the expression 'at any stage or later stage' on the hand and the 'suit is called ori for hearing or before such hearing' used in different provisions of the Code of Civil Procedure are synonymous to each or admit definite distinction in their meaning and scope, is the basic question that falls for consideration in this revision petition.
2. Before entering into the realm of various judgments on this aspects, it will be appropriate to have a composite picture of the facts giving rise to this revision petition.
Plaintiff Chandgi had instituted a suit for possession against Mehar Chand and others. The parties were at issue in regard to various aspects forming the subject matter of the suit. The learned trial Court on the pleadings of the parties, framed the following issues :--
(i) Whether the plaintiff is entitled to the relief of permanent injunction in respect of the suit property as mentioned in the Head Note of the plaint? OPP.
(ii) Whether the plaintiff is precluded from filing this suit in view of the provisions of Order 23, Rule 1, C.P.C.? OPD.
(iii) Whether the suit of the plaintiff is time barred? OPD.
(iv) Whether the suit of the plaintiff is barred by principle of res judicata? OPD.
(v) Relief.
The present suit was fixed for recording of evidence. The defendants closed their evidence and the matter was fixed for arguments, which were heard on 3-5-1997 and thereafter the case was fixed for pronouncement. On 5-5-1997, an application was filed by the applicant under Order 18, Rule 17-A of the C.P.C. with a prayer that they be permitted to lead additional evidence to prove issue No. 2. The additional evidence sought to be produced by the applicants relates to the two previous suits bearing Suit No. 101 dated 31-5-1979 and Suit No. 91 dated 20-5-1982 which were filed by the plaintiff and had been dismissed. The copies of the plaints, written statements and the judgments and decree pertaining to the same subject matter passed in these suits were the documents sought to be produced and proved by filing the present application. The application was contested by the plaintiff, who stated that there was not stage for leading the additional evidence as the case has already been reserved for pronouncement of judgment and it will tentarriounte to reopening the whole controversy. The application is stated to be abuse, of process of law and prayer for dismissal of the said application was made. However, the learned trial Court vide its order dated 15-5-1997 permitted the applicants to lead evidence and place the documents aforestated on record. It is this order of the learned trial Court which has been impugned in the present revision petition.
3. While challenging the impugned order, the learned counsel for the petitioner vehemently argued that the application for leading additional evidence cannot be entertained once the suit is reserved and the case is fixed for pronouncement. According to him, the Court loses its jurisdiction to entertain such application. Resultantly, the application filed by the applicants-defendants was not even maintainable. It was also argued that even on merits the application ought to have been rejected as there was definite issue and the applicants ought to have discharged the onus of his issue at the stage when they led their evidence. AH these contentions have been countered by the learned counsel for the respondent, who contended that the plaintiff is abusing the process of law by filing suit after suit which have already been dismissed and the documents sought to be proved have a direct bearing on the various issues aforestated and as such the application has been rightly allowed by the learned trial Court.
4. At the out set, the relevant provisions of Order 18, Rule 17-A of the Code of Civil Procedure (hereinafter referred to as the 'Code') needs to be noticed. Order 18, Rule 17-A of the Code reads as under ;---
"17-A. Production of evidence not previously known or which could not be produced despite duediligence.--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."
In addition to above provisions, the Order 18, Rule 2 places an obligation on the party to lead their entire evidence, while Sub-rule (4) of Rule 2 of Order 18 notwithstanding anything contained in that rule empowers the Court to permit any party to examine any witness at any stage, (emphasis provided by me)
5. Order 18, Rule 17 of the Code empowers the Court to recall any witness which has been examined at any stage of a suit. The expression 'at any stage' has been used by the legislature in these two provisions. Rule 17-A empowers the Court to allow additional evidence at a later stage on such terms and conditions as may be necessary and just. The cumulative effect of all these provisions was considered by this Court in the case of Banwari v. Nagina, Civil Revision No. 4287 of 1997 decided on 6-2-1998 (reported in 1998 (118) Pun LR 511) and the following observations made by the Court are relevant :
"It is the settled principle of law that additional evidence can be permitted to the party if the party permitting such relief had failed to lead the evidence at the earlier stage after exercising due diligence and there was sufficient cause for granting such permission. Primary distinction is between not to able to produce in spite of due diligence and waiver to lead evidence. 'Waiver' is an intentional act or an act which can be reasonably construed from the record that the party intentionally failed to lead evidence which it ought to have. There is also no doubt to the fact that Order 18, Rule 2, C.P.C. has to be read in conjunction with the provisions of Order 18, Rule 17-A, C.P.C. The legislative intent behind these two rules is that the party must lead evidence on all the issues onus of which is on him on the date fixed by the Court. Sub-rule (4) of Rule 2 of Order 18, still gave powers to the Court to permit a party to examine any witness at any stage for the reasons to be recorded in writing. This rule was introduced by amendment to the Code of Civil Procedure in the year 1976 as well as Rule 17-A was also introduced by the same amendment. These amendments are obviously intended to give wider discretion to the Court for permitting additional evidence at any stage of the suit. Discretion must and has to be exercised on settled principles of law, the basic need being complete and effective adjudication between the parties in regard to the subject matter of the suit without offending any provision of the Code and causing undue advantages to the applicant over the non-applicant. Earlier to the amendment Rule 17 of Order 18 gave jurisdiction to the Court to recalls the witness already examined, but addition of these two provisions by way of amendment can no way be interpreted so as to give no benefit to the applicant if the facts and circumstances of a case and ends of justice so demand.
Judicial conscious of the Court needs to be satisfied keeping in view the dual principle merging from Order 18, Rule 2(4) on the one hand and Order 18, Rule 17-A, C.P.C. on the other. In the case of Kaura Ram v. Gobind Ram, AIR 1980 Punj and Har 160, the Bench of this Court permitted an order on the application under the Arbitration Act to be produced by way of additional evidence in spite of the fact that the party had already closed the evidence and the very arbitration agreement was challenged and the applicant had failed to produce the said order earlier, without any justification. Still in another case titled as Western Electronics Ltd. v. M/s. Chand Radio, 1988 Pun LJ 79 where a large number of documents which were not exhibited because of over sight, were produced, the Court held that the mistake on the part of the counsel should not be permitted to cause prejudice to the interest of the party. The rules of procedure being meant to advance the cause of justice, additional evidence was permitted in that case as well.
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) 7 JT (SC) 643 : (AIR 1997 SC 3243) where the Court held that additional evidence could be allowed even at the Appellate stage under Rule 22(aa) of Order 41, C.P.C. 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 ex parte 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 properly. High Court rejected the said prayer, but the same was allowed by Hon'ble Apex Court.
The cumulative effect of theabove 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 dedault 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 of the same order in isolation. Both these provisions must be read and construed harmoniously so as to farther 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."
The necessary corollary to the above is what is the possible meaning which should be attached to the expression at any stage or a later stage. The word 'stage' must be read and construed so as to give it a meaning within the four parameters of various provisions of the Code. Stage as understood in common parlance is 'elevated platform or a section of life, development or any process' (The Chambers Dictionary Delux Edition). To read such a meaning in conjunction with the legislative intents culminating from various provisions of the Code would probably give a clear percept to bring at rest this controversy. There can be no doubt that the Code provides as to how a plaint is to be presented; who would be the party to a suit; how written statement would be filed; how replication would be filed; framing of issues; leading of evidence by the parties; hearing of arguments and pronouncement of the judgment by the Court. These are the various stages from which each suit must pass to arrive at a final decision. The final culmination of the judicial proceedings before the Court of competent jurisdiction would take place only upon the pronoucement of the judgment by the Court. It is this stage when the Courts loses its jurisdiction over the matter for all intent and purpose. In other words, it becomes functus officio of the matter before it.
6. Order 18 of the Code relates to hearing of the suits and examination of witnesses, while Order 20, Rule 1 details when the judgment is to be pronounced. Sub-rule (1) of Rule 1 of Order 20 of the Code in unambiguous term says that after the case has been heard, the Court shall pronounce the judgment either at once or, on a future dale as may be practicable lor the Court. The hearing of a suit thus ends with the arguments but every stage of suit does not end with the submissions of the arguments. If no distinction was to be drawn between the word 'hearing of the suit and stage of suit, it would lead to anomalous situation which would result from the various provisions of this procedural Code. In face of Order 20, it cannot be said that the pronouncement of the judgment in a suit is no stage. The intention of the legislatute in using different expression under the provisions of Order 9 and Order 20 of the Code are intended to serve and convey a different meaning. It is a settled rule of interpretation of the provisions of a procedural statute that every expression used by the legislature must be construed in its plain language to achieve intention of the legislature because the legislature attempt not to waste its words or to say any things in wind. Any interpretation which would have the result of attributing redundancy to the legislature should be avoided.
In other words, if the expression hearing of suit and stage of suit are treated to be synonymous then the necessary result is that either of the expression used by the legislature is redundant, ineffective and unmeaningful. As observed by Hon'ble the Chief Justice Patanjali Shastry in the case of Aswini Kumar Gliose v. Arabinda Bose, AIR 1952 SC 369, it is not a sound principle of construction to brush aside word in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute.
7. On the application of the well settled principles of law governing the subject, I find it very difficult to hold that the judgment is not a recognised stage of the proceedings in a suit. Section 2(a) of the Code defines the judgment as statement given by the judge of the grounds of decree and order. The legal cannotation of judgment is the declaration or final determination of rights of the parties in the matter before the Court. Even in common parlance the expression 'judgment' is understood to pui an end at least at some stage to the lis between the parties. Hearing of a suit would have to be understood in the context, where the Court fixes a date for some acts to be done by either parties, while the stage or a later stage of a suit would be a stage till the pronouncement of judgment when the court is funclus officio of the case before it.
8. In view of the above legal position, now I advert to the merits of the present case. The application filed by the defendants-applicants for leading additional evidence has been allowed by the learned trial Court in spite of the fact that the case was pending for pronouncement of judgment. The reasoning given by the trial Court does not suffer from any patent jurisdictional error.
9. Learned counsel for the petitioner has stage of a suit. The trial Court in no way losses control over the proceedings of the suit til 1 its pronouncement and signing of the judgment in accordance with the provisions of Order 20 of the Code. Reliance was also placed by the parties on the judgment rendered in the case of Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993. It must be noticed that Hon'ble Apex Court was concerned with the interpretation of the provisions of Order 9, Rule 7 of the Code. It was observed that once the case is reserved for order, the case does not adjourn for hearing of the suit or adjourn hearing of the suit even in ex parte proceedings. The very observations and conclusion arrived at in this case clearly indicates that the very premises of the judgment is that neither the hearing of the suit is adjourned nor any hearing is contemplated. The Hon'ble Apex Court specifically noticed that the next stage is only the passing of a decree. It may be relevant to reproduce the observation of the Hon'ble Supreme Court :--
".... When once the hearing starts, the Code contemplates only two stages in the trial of the suit : (1) where the hearing is adjourned or (2) where the hearing is completed. Where hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX, Rule 1 permits judgment to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by Order IX, Rule 7 is passed the next stage is only the passing of a decree which on the terms of Order IX, Rule 6 the Court is competent to pass." It is apparently clear that no hearing is contemplated under the provisions of the Code between the stage of hearing and reserving the case for order and pronouncement of judgment, but still these two are the independent stages of the proceedings in a suit and hence on the same anology applied by the Apex Court, the party would have a right to file an application for leading additional evidence prior to the pronouncement of the judgment under the provisions of Order 18, Rule 17-A of the Code.
10. Once it is held that the application was maintainable, nothing much was argued to assail the impugned order on any other grounds. Still it should be noticed that the document sought to be proved at this stage arc the copies of the pleadings between the parties in earlier suits to support the plea that the present suit was barred under the provisions of Order 23, Rule 1 of the Code in which an issue has already been framed. The learned trial Court has considered and found it in the interest of justice to permit the parties to lead additional evidence. The purpose of the provisions of Order 18 is more to permit a party to complete its evidence rather to reject permission to lead evidence in a suit. Reference in this regard can be made to the judgment of this Court in the case of Preet Cold Storage and Ice Factory v. United Commercial Sango, AIR 1989 Punj & Har 226.
11. For the reasons aforestated, I find no merits in this revision and the same is dismissed. However, there shall be no order as to costs. It is expected that the trial Court would dispose of the suit expeditiously.