Punjab-Haryana High Court
Banwari Lal And Others vs Saraswati And Others on 20 November, 2013
CR No. 7073 of 2013 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No. 7073 of 2013
Date of decision: 20.11.2013
BANWARI LAL AND OTHERS
.....PETITIONERS
Versus
SARASWATI AND OTHERS
.....RESPONDENTS
CORAM: HON'BLE MR. JUSTICE S.P. BANGARH
Present: Mr. Sanjay Mittal, Advocate
for the petitioners.
*****
S.P.BANGARH, J (ORAL)
The petitioners, herein, are the plaintiffs before the trial Court in civil suit filed by them against the respondents for declaration to the effect that their occupancy rights in the suit land have ripened into ownership and the respondents should be restrained from usurping the same. They closed their evidence without tendering jamabandis for the years 1938-39, 1951-52, 1955-56 and 1963-64 and the khasra girdawaries for the years 2005 to 2012. The copies of the jamabandis for the years 1938-39, 1951-52 and 1963-64 have been shown in the Court, today.
It is the case of the petitioners that after exercise of due Sunder Sham 2013.11.23 11:17 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CR No. 7073 of 2013 - 2- diligence, they could not produce those at the time of closure of their evidence. Their application for additional evidence for tendering of aforementioned revenue documents was dismissed by the trial Court vide order dated 21.08.2013. Aggrieved, against the same, they have filed the present revision with prayer for acceptance, thereof, and for allowing them to tender in evidence the aforementioned jamabandis and khasra girdawaries.
Learned counsel for the petitioners contended that the documents sought to be tendered in evidence are per se admissible and, therefore, their tendering in additional evidence by the petitioners is not going to cause any prejudice to the opposite party, who can be compensated with costs for their inconvenience, which they have suffered due to the act of the petitioners of not filing these documents at the time, when they were leading evidence in affirmative.
Keeping in view the facts and circumstances of the case, the documents sought to be tendered in evidence are only jamabandis and khasra girdawaries. These must be allowed to be tendered in additional evidence. These documents could not be produced by the petitioners, albeit, exercising due diligence. The petitioners were not going to gain out of this omission.
Provision of Order 18 Rule 17-A of the Code of Civil Procedure has been deleted by feeling that unnecessary applications are being filed primarily to delay the conclusion of the trial, as held in Rajesh Kumar v. Mangat Rai and others; 2012 (2) PLR 334. It was Sunder Sham 2013.11.23 11:17 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CR No. 7073 of 2013 - 3- further held that this deletion does not take away inherent power of the Court to do substantial justice between the parties and allow any material evidence to be produced by them unless it is actuated with mala fides or is due to gross negligence on their part. Vide this judgment, revision petition was allowed subject to costs of `5,000/-.
In the judgment (supra), application was moved by the defendant after the evidence closed after availing 45 opportunities. The documents sought to be produced by way of additional evidence were the certified copies of certain documents whose photocopies were already produced. It was held that the application for leading additional evidence cannot be said to be filed with mala fide intention. It was held that it will be appropriate that an opportunity is granted to the petitioner to lead additional evidence to prove the aforementioned documents and the respondents can be compensated by way of costs of `5000/-, failing which revision petition to be deemed to be dismissed.
In the judgment (supra), it was also held that ordinarily the Court may not be required to evaluate the additional evidence at the stage of deciding the application. However, a duty, has been cast on the Court to examine prima facie the relevancy of the material sought to be produced so as to conclude that the application filed is bona fide and not to abuse the procedural law to harass the opposite side by filing frivolous applications and to ensure that the procedural law is not misused to delay the decision of the suit.
This Court in Shahabad Coop. Sugar Mills v. M/s Sunder Sham 2013.11.23 11:17 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CR No. 7073 of 2013 - 4- Markanda Sugar Traders and another; 2012 (4) RCR (Civil) 620; held that whole of the delay cannot be said to be attributable to the petitioner. It was held that the Court cannot decline the application for seeking additional evidence on the ground that it is, too, late to be accepted, unless there was any intentional delay or design to install the early disposal of the suit. It was further held that the cause of justice cannot be sacrificed merely on the ground of delay. Court should have focused mainly on the real justice to be imparted to the parties, particularly when the delay is not purely attributable to the petitioner.
The Hon'ble Supreme Court of India in K.K. Velusamy v. N. Palanisamy; 2011 AIR SC (Civil) 1000; held that the Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the Court to permit a party to produce any evidence even at a late stage, after the conclusion of his evidence that was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted w.e.f. 01.07.2002. The deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse, thereof, Sunder Sham 2013.11.23 11:17 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CR No. 7073 of 2013 - 5- by the parties to prolong the proceedings under the pretext of discovery of new evidence.
It was further held that the amended provisions of the Code contemplate and expect a trial Court to hear the arguments immediately, after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for, whatsoever, reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under Section 151 of the Code, permit the production of such evidence, if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.
So, in view of the aforementioned judgments, it must follow that Court may in exercise of inherent power under Section 151 of CPC, permit production of documents in additional evidence, that have been sought to be produced by the petitioners. As already noticed, the documents sought to be produced are jamabandis and khasra girdawaries that are per se admissible and, therefore, one adjournment must be granted to the petitioners to tender these documents, subject to payment of `3000/- as costs to the respondents for causing inconvenience to them due to this act of the Sunder Sham 2013.11.23 11:17 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CR No. 7073 of 2013 - 6- petitioners.
Resultantly, the revision succeeds and is, hereby, allowed; impugned order is set aside and the application filed by the petitioners, that was dismissed by the trial Court vide impugned order is, allowed subject to payment of `3000/- as costs by the petitioners to the respondents. Jamabandis and khasra girdawaris mentioned in first paragraph of this order are allowed to be tendered in evidence.
20.11.2013 (S.P.BANGARH)
sham JUDGE
Sunder Sham
2013.11.23 11:17
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh