Punjab-Haryana High Court
Sugan Chand Jain vs R.K. Chopra And Ors. on 14 September, 2000
Equivalent citations: (2000)126PLR811
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. This is revision against the order dated 25.10.1999 of Civil Judge, Senior Division, Gurgaon whereby she has refused the application of the plaintiff (petitioner herein) moved under Order 18 Rule 17-A Code of Civil Procedure for additional evidence.
2. By means of this application, the plaintiff wanted to produce and examine Moti Lal Jain, Proprietor, Jain and Jain, the broker of the suit property. It was alleged in the application that due to bonafide mistake and over-sight, he was not examined, though he had deposited diet money for him. He was summoned but was not served. It is a suit for specific performance, declaration and damages. It was alleged in that application that he is a material and important witness and his evidence is essential for the just decision of the case. This application was resisted by the defendant-respondents Smt. Chander Batra and Ms. Bindu Batra, wife and daughter of Suraj Bhan Batra. It was urged by them that plaintiff had closed his evidence on 19.9.1999. He should be deemed to have given up Moti Lal Jain. It was further urged that no ground was made out for allowing this application as envisaged in Order 18 Rule 17-A CPC.
3. I have heard the learned counsel for the parties and have gone through the record.
4. It was submitted by the learned counsel for the petitioner-plaintiff that provisions of Order 18 Rule 17-A CPC do not come in his way of producing additional evidence because it is not his case that it was not known to him that he should examine Moti Lal Jain, Proprietor, Jain & Jain but his case was that he had deposited diet money for him and had summoned him. He closed his evidence without realising that he ought to have examined him and his evidence was essential for the just decision of the case, he being broker of the suit property. It as submitted that he should not have been penalised if he had closed his evidence unwittingly without realising that he was an essential witness to be examined in this case for its just decision. It was submitted that the whole claim of the plaintiff revolves on agreement to sell. It was submitted that he should have been allowed to examine Moti Lal Jain when he had deposited diet money for him though he had closed his evidence without examining him as procedure is designed to advance justice and not throttle justice and penalise the parties for their bonafide and inadvertent mistakes. It was held in Punjab Kaur and Ors. v. Gurcharan Singh and Ors., (1992-2)102 P.L.R. 141 that "on account of the negligent conduct of the party the evidence which goes to the root of the case cannot be scuttled. Application for additional evidence by defendants so as to compare the thumb impressions of the defendants on the sale deed was allowed as their main defence was that sale deed was a forged document. Plaintiffs had closed their evidence. Defendants had also closed their evidence. Thereafter, the case was posted for recording rebuttal evidence when application for additional evidence was moved so as to compare the thumb impressions of the defendants, which was allowed." In Ravinder Singh and Anr. v. Kirpal Singh and Ors., 1998-3)120 P.L.R. 822 it was held that "production of additional evidence can be allowed if the same is necessary for the just decision of the case. In application for additional evidence, it had been mentioned categorically that documents sought to be produced and proved by way of additional evidence were within the knowledge but could not produced earlier despite due diligence and this fact came to the notice of counsel only at the time of preparing arguments. Production of additional evidence was allowed in the interest of just decision of the case." In Om Parkash v. Sarupa and Ors., AIR 1981 P&H 157, it was held that "a witness can be recalled and questions can be put to him, which through inadvertence, could not be put to him in his earlier examination. A party should not be allowed to suffer for any omission or lapse on the part of his counsel. Rules of procedure are meant to advance the cause of justice." In Ram Singh (Minor) v. Pirthi and Ors., (1996-3)114 P.L.R. 511 it was held that "no party can be denied the right to examine any witness on the mere ground that this evidence that party could have adduced at that time when he was adducing evidence." It was also held that "it cannot be ground to reject such a request on a blanket rule that since this evidence was available to the plaintiffs or it was within their knowledge, then at the fag end of the trial, they should not be allowed to adduce such evidence." It was held in Ram Dev and Anr. v. Satbir Singh and Ors., (1990-2)98 P.L.R. 544 that "provisions of Order 18 Rules 17-A CPC should not be interpreted in a manner which defeats the cause of justice. Court should be disinclined to shut evidence on technical considerations."
5. Learned counsel for the respondents, on the other hand, submitted that Moti Lal Jain was justly not allowed to be examined by the plaintiff as the suit was instituted in the year 1990 while this application was made after 19.9.1999 i.e. when plaintiff had closed his evidence. It was submitted that plaintiff could examine Moti Lal Jain if he had been little careful and diligent. Suffice it to say, the provisions of Order 18 Rule 17-A CPC cannot be interpreted so strictly in this case as the plaintiff had summoned him and had deposited diet money for him. He had deposited process fee for him. If he bonafide omitted to deposit process fee for him over again, his right to examine him should not have been scuttled. Civil Judge, Senior Division, Gurgaon had observed in her order as follows:
"Further a perusal of the order sheet reveals that the issues in this case were framed on 2.5.1994 and the plaintiff closed his evidence on 19.9.96 when the summons of his witness was received unserved."
6. He had thus summoned that witness and had deposited diet money and process fee for him. He should not have been penalised if he had omitted to deposit process fee for him overagain after the summons had been received back unserved. It would bear repetition that the trial Court should not have been that pedantic and narrow in its approach and scuttled the evidence of the plaintiff, which he thought was essential for the just decision of the case.
7. So, this revision is allowed on payment of Rs. 500/- as costs. Order dated 25.19.1999 is set aside and the trial Court shall allow the plaintiff to produce Moti Lal Jain.