Punjab-Haryana High Court
Surjan Singh vs Paras Ram (Deceased By L.R.'S) And ... on 9 September, 1994
Equivalent citations: AIR1995P&H120, AIR 1995 PUNJAB AND HARYANA 120, 1994 HRR 598, 1994 (2) REVLR 397, (1994) 3 PUN LR 503, (1995) 1 LANDLR 367, (1995) 1 RENTLR 124, (1996) 1 BANKCAS 214
ORDER
1. An application filed by the plaintiff for producing additional evidence after both the parties had closed their evidence, was rejected by the trial Court on May 23, 1991 which has been challenged by the plaintiff in this revision petition. In the application two prayers were made; 1) that the plaintiff be permitted to appear as his own witness; and (2) that copies of two documents : (a) copy of jamabandi, (b) copy of pedigree table from the revenue record be allowed to be produced. The stand taken up by the plaintiff was that inadvertently plaintiff's evidence was closed without the plaintiff having appeared as a witness. With respect to the two documents, it was asserted that they were relied upon in the list of reliance placed by the plaintiff. At the time of closure of plaintiff's evidence, statement of the counsel for the plaintiff was recorded wherein several documents were tendered into evidence and admitted as such. It was due to inadvertence that the two documents could not be admitted into evidence.
2. Issues were framed in the suit on December 10, 1985. On June 3. 1986 an additional issue was framed. The suit was for possession of 114/349 share of 34 Kanals 7 Marias of land as described in the plaint. In March 1987 the present suit was consolidated With another pending suit under orders of the Court. Thereafter the plaintiff produced his evidence and ultimately closed it on October 6, 1987. It is at that time that 62 documents were tendered and admitted into evidence in the statement of counsellor the plaintiff. Thereafter defendants' evidence was produce- ed which was ultimately closet! or. February 1, 1988. The present application for producing additional evidence was filed on January 29. 1991.
3. During pendency of the present revision petition the fact was strongly disputed on behalf of the respondents that the two documents sought to be produced as additional evidence were inadvertently omitted in the statement of counsel for the plaintiff. The stand taken up by the respondent was that copies of these documents were not produced along with the plaint by the plaintiff, in other words they were not at all on the record when evidence of the plaintiff was closed on October 6, 1987. In this respect an affidavit of respondent was produced. On the other hand learned counsel for the plaintiff produced certified copy of the list of reliance originally filed in the suit indicating that the two documents were mentioned therein which are now sought to be produced. Application for producing additional evidence was read out by learned counsel for the plaintiff-petitioner which clearly indicated that the copies of the documents sought to be produced were attached therewith. Thus it is established that the plea taken by the plaintiff-petitioner that these documents were already on the file of the case and were inadvertently not admitted into evidence on October 6, 1987, is not established. Reliance placed by the petitioner on the decision of this Court in this respect in Sh. Jes Raj, Personal Assistant, Punjab State Industrial Development Corpn. Ltd. v. Punjab State Industrial Development Corporation Ltd., (1990-1) 97 Pun LR 652, is misplaced. That was a case where documents had already been produced on the record but they were not admitted or denied and production of such evidence was held to have advanced the cause of justice that resort to the provision of Order 18, Rule 17A of the C.P.C.
was had and application was allowed. The ratio of the decision aforesaid cannot be applied to the case in hand as in that case documents were already on the record. On the same ground the other decision relied upon is not helpful i.e. Arjan Singh Jagdish Kaur, (1990-2) 98 Pun LR 319.
4. The question has to be examined keeping in view the provisions of Order 18, Rule 17A of the C.P.C. as inserted in 1976 by amendment of the Code of Civil Procedure. It reads as under :--
"Order 18, Rule 17A. Production of evidence not previously known or which could not be produced despite due diligence :
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." .
5. The general principle laid down by the Courts that the provisions of Code of Civil Procedure arc meant to advance the of justice is always to be kept in view. At the same time the intention of the Legislature in amending the Code of Civil Procedure by providing Rule 17A aforesaid is to be kept in view. It indicates that power of the Courts in the matter of allowing additional evidence has been circumscribed i.e. such power is to be exercised within the corners of the statute. Court's satisfaction is necessary about the exercise of due diligence by the party who desires the Court to exercise discretion in the matter to establish that if due diligence had been exercised, the document could not have been produced earlier i.e. the existence of the documents were not known, when the party led the evidence such party is to produce material. Present is a case where the plaintiff had relied upon these documents but had not produced copies thereof along with the plaint or during the time allowed to him to produce his evidence. If due diligence had been exercised, the plaintiff could have produced these documents at the earlier stage. The View expressed by the trial Court in this respect is not erroneous in law which may call for interference in revision petition. In this context reference may be made to the decision of this Court in Smt. Sarto v. Dhan Ram, (1993-1) 103 Pun LR 624. It was observed as under :-
"Even for a moment accepting the fact that the counsel was remiss in not producing or relying upon it in the course of pleadings or the evidence, the petitioner, cannot after so many years, be allowed to re-agitate the matter when the evidence of both the parties has been concluded."
6. Reference may also be made to another decision of this Court in Buta Singh v. Gurmeet Singh, (1994-2) 107 Pun LR 276. While interpreting the scope of Order 18, Rule 17A of the Code of Civil Procedure, it was observed as under :--
"The factum of Jaswant Kaur being of unsound mind was very much in the knowledge of the defendant and additional evidence can only be permitted which could not be produced earlier when the party had an occasion to produce the same, if the party seeking such permission satisfied the Court that evidence could not be produced earlier despite due diligence and that the evidence sought to be produced was not in the knowledge of such party when he had an opportunity to produce such evidence. Nothing of the type has either been alleged or shown to the satisfaction of the Court as already noticed. All the facts were in the knowledge of the defendant-petitioner and there was nothing to prevent him to produce the evidence on an earlier date."
7. I fully endorse the view expressed as above that unless and until the party satisfies the Court that after due diligence had been exercised, the document could not be produced earlier, he cannot be permitted to lead such documentary evidence subsequently which was already in existence and was known to the party concerned.
8. Learned counsel for the petitioner further argued that it was discretionary with the Court to permit the plaintiff to appear as his own witness. It was due to inadvertence that the plaintiff's evidence was closed with-out recording the evidence of the plaintiff. This contention again is devoid of merit. As already stated above plaintiff's evidence was closed in October 1987 and the present application was filed in January 1991. No cogent explanation was putforth as to why the plaintiff could not make such an application promptly after the evidence was closed if at all it was a case of inadvertence or negligence on the part of the counsel.
9. The trial Court had declined the request of the petitioner to produce additional evidence. The main suit is yet to be decided. In view of Proviso (a) added to Section 115 of the Code of Civil Procedure in 1976 revision against the aforesaid order cannot be entertained as the order, even if made in favour of the petitioner allowing the application for producing additional evidence, would not have finally disposed of the suit. The revision is liable to be dismissed on this ground as well.
10. For the reasons recorded above, finding no merit in the revision the same is dismissed. No costs.
11. Revision dismissed.