Calcutta High Court (Appellete Side)
For The vs N. Palanisamy Reported In (2011)11 Scc on 12 April, 2012
Author: Soumen Sen
Bench: Soumen Sen
1 12.04.2012 47 r.
C.O. 586 of 2012 Mr. H. Bhattacharyya, Mr. Rabindra Kumar Jaiswal, .... For the petitioner.
Mr. Sabyasachi Bhattacharyya, ...... for the O.Ps.
The present revisional application is at the instance of the defendants who objects to the trial Judge allowing additional evidence after closer of evidence. The plaintiff after completion of evidence filed an application to bring on record some documents claimed to be public documents in order to prove its claim of reasonable requirement of the said suit premises. The plaintiff in order to lead further evidence on this point wanted to rely upon some tax receipts which according to the plaintiff would clearly establish that the allegation of the defendant that the plaintiff is having an alternative accommodation is factually incorrect. The plaintiff also wants to rely upon the certificate of registration of the cars to show that a garage space is required to keep such cars. The opposite parties contended that this evidence were within the knowledge of the plaintiff and they should not be allowed to produce such evidence and recall the witness to prove such documents at this stage. It was submitted that although there was a specific case made out in the written statement that the plaintiff is having an alternative accommodation but the plaintiff made no attempt to lead any evidence to disprove such fact..
The plaintiff/opposite party, however contended that in paragraph 41 of the affidavit-in- chief affirmed by the defendant, the defendant for the first time categorically stated on oath that apart from the suit property, the plaintiff has other accommodation of his own at 31/C, Shib Krishna Daw Lane, Kolkata-700 054 and also at 40, S.K. Daw Lane, Kolkata- 700 054 which is within a walking distance of the suit premises. This necessitated to adduce such additional evidence.
2Mr. Sabyasachi Bhattacharyya, learned advocate appearing for the opposite parties contended that the onus of alternative accommodation is on the defendant which the defendant had failed to discharge. Such evidence is required to enable the court to arrive at a just and proper finding in the suit and the trial Judge was justified in allowing such evidence. However, these are the matters to be considered by the learned trial Judge after evidence are concluded. At this stage, this court is concerned with the legality and validity of the order under challenge.
Order 18 Rule 17 gives power to the court to recall any witness who has been examined and may, (subject to the law of evidence for the first time being in force) to put such question to such witness as the court thinks fit. Under the unamended order 18 Rule 17A, a party could produce evidence not previously known or which could not be produced in spite of exercise of due diligence. The court allowing production of such evidence under the unamended provision must be satisfied about the existence of two conditions, namely, (I ) evidence not previously known, and (2) inspite of due diligence the same could not be produced. Although after the amendment 17A was omitted by the Code of Civil Procedure Amendment Act 1999 ,such power could be exercised by the court under Section 151 of the Civil Procedure Code and the court in appropriate case may exercise its discretion to permit a party to adduce additional evidence and/or recall a witness for further examination/cross-examination after evidence led by the parties are concluded and argument have commenced or even when arguments have concluded and case has been reserved for judgement. (K.K. Velisamy -vs- N. Palanisamy reported in (2011)11 SCC
275.) The learned advocate for the opposite parties submits that inspite of objection being raised, the said documents were marked as exhibits by the learned trial Judge and the same has resulted in miscarriage of justice.
There is nothing on record to show that the petitioner prayed for time to file any objection or raised any objection at the time when the said documents were marked as exhibits. I 3 The only objection on record is that when the said application was served upon the learned advocate appearing on behalf of the opposite parties, he had put an endorsement on the copy as "objected to". It is settled law that mere production and marking of exhibits are not sufficient. {2003(8) SCC Page 745.}. However, the trial Judge should allow the defendant to cross-examine, the witness of the plaintiff on such additional documents if any prayer is made by the petitioner before the trial Judge before adjourned. The plaintiff however contended that such documents were marked as exhibits since the defendant declined to cross-examine the witness of the plaintiff. There is nothing on record to show that any such opportunity was given to the petitioner to cross-examine the witness of the plaintiff on such additional documents.
The proof and admissibility of the documents produced by a witness at the time of filing the affidavit in-chief shall be admitted subject to the order of the court as required under Order 18 Rule 4 of the Civil Procedure Code. The stage of which the court would decide such objections as to the admissibility of a document as and when the said documents are tendered in evidence is for the court to decide keeping in mind that if ultimately such objection is upheld against the party relying on such document he would be deprived of curing such defect and to lead any other evidence in support of his case. (R.V.E Venkatachala Gounder vs. Arulmigu Viswesaraswami V.P. Temple & Anr. 2003(8) SCC 752. In the event, the petitioner wants to examine the plaintiff on the said documents, the learned court below should keep aforesaid principle in mind and proceed with the trial.
With these observations, the order dated 30th November, 2011 is modified. The opposite party would be entitled to examination of the plaintiff as witness on such documents if prayed for, on the date to be fixed by the trial court before commencement of argument.
Accordingly, the revisional application is disposed of.
Urgent photostat certified copy of this order, if applied for, be supplied to the learned advocate for the petitioner in compliance of necessary formalities. 4 (Soumen Sen, J.)