Vishnu Sugar Mills Ltd. v. Chandrika Prasad — 1995 DIGILAW 184 (PAT)

JUDGMENT B.L. Yadav, J. - This is a plaintiff's Civil Revision preferred under Section 115 of the Code of Civil Procedure, 1908 (for short "the Code") arising out of an order dated the 30th January, 1990 passed by the Fifth . Subordinate Judge, Gopalganj, rejecting the documents in respect of authorisation filed after the settlement of the issues. This case was earlier listed before Hon'ble Binod Kumar Roy, J., who feeling the significance of the question involved, referred it to be listed before a Division Bench. This is how this case has come up before us. 2. The factual matrix of the case in brief is that the plaintiff-applicant has filed the suit claiming the relief for recovery of a principal amount of Rs.18,265.66 Paise along with interest (including future and pendent lite) from the defendant till the disposal of the suit. After close of the evidence, however, an application was filed by the plaintiff-applicant that the document of authorisation may be accepted in evidence, but the said prayer was rejected by the impugned order. Against that order the present Revision has been filed. A preliminary objection was raised by the learned counsel for the opposite party which was refuted by the counsel for the applicant. 3. The learned counsel for the applicant urged that the provisions of Rules 1 and 2 of Order 13 of the Code may be read together with Order 18, Rule 17 A of the Code. If these provisions are interpreted together, the applicant's application would have been allowed. He leaned heavily on a Single Judge decision of this Court in Adalat Choudhary vs. Satan Choudhary and others (AIR 1984 Patna 223); Mahanth Som Prakash Das vs. Sri Udasin Panchayati Akhara Sara & others ( 1982 PLJR 486 ); and Saldevdas Shivlal and another vs. Filmistan Distributors (India) Pvt. Ltd. and others ( AIR 1970 S.C. 406 ). 4. He leaned heavily on a Single Judge decision of this Court in Adalat Choudhary vs. Satan Choudhary and others (AIR 1984 Patna 223); Mahanth Som Prakash Das vs. Sri Udasin Panchayati Akhara Sara & others ( 1982 PLJR 486 ); and Saldevdas Shivlal and another vs. Filmistan Distributors (India) Pvt. Ltd. and others ( AIR 1970 S.C. 406 ). 4. The learned counsel for the opposite party, on the other hand, urged that the Civil Revision itself was not maintainable, as the impugned order rejecting the application for admission of the documents does not amount to the case decided, as is manifest from Section 115 of the Code and that there are no merits in this Revision and the impugned order is correct, as it was within the discretion of the Court either to accept or to not accept the document, particularly when the same was tiled after the evidence was closed. 5. Having scrutinised the submissions of the learned counsel for the parties, the points for our determination are as to whether the present Revision is maintainable, and if so, whether the impugned order could be maintained and whether there was justification for interference within the provisions of Section 115 of the Code. 6. As regards the first point, the provisions of Section 115 of the Code, as amended by Act No. 104 of 1976, indicated that noticeable amendment has been made by adding a proviso and an explanation. It is well settled that a proviso carries out an exception to the main provision. Its principal function is to except and deal with a case which would otherwise fall within the general language of the main enactment. In fact, it excludes out something which would otherwise have been within the main provision. In the words of Lord Macnaghten "Proviso" is a qualification of the preceding enactment, which is expressed in terms too general to be quite accurate. (See Local Government Board Vs. South Stoneham Union, (1908) A.C. 57 (H.L.) page 62). In other words a proviso has no repercussion on the interpretation of the enacting portion of the Section so as to exclude something by implication which is embraced by clear words in the enactment, (See A.N. Sehgal Vs. (See Local Government Board Vs. South Stoneham Union, (1908) A.C. 57 (H.L.) page 62). In other words a proviso has no repercussion on the interpretation of the enacting portion of the Section so as to exclude something by implication which is embraced by clear words in the enactment, (See A.N. Sehgal Vs. R. Shedram, AIR 1991 SC 1406 ) that the High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. By proviso it has been provided that the High Court shall not vary or reverse any order made including an order deciding an issue, except when order, if it had been made in favour of the party applying would have finally disposed of the suit or if allowed to stand it would occasion a failure of justice. 7. By the 1976 Amendment Act an Explanation has also been added to this Section to explain the meaning of expression "any case which has been decided". This Explanation is part and parcel of the enactment. So far this expression has received different and contradictory meaning in different High Courts, hence to evolve a consistent meaning to be assigned to this expression, a construction consistent with the purpose has to be placed upon it. In Bengal Immunity Co. Ltd. Vs. State of Bihar ( AIR 1955 SC 661 ) the Explanation added to Article 286 (1) was restricted to its avowed purpose of explaining an outside sale for the purpose of clause (1) and was construed as not conferring any taxing power or as restricting the ban imposed by clause (2) of the same Article. Even prior to 1976 Amendment Act, the Apex Court has already authoritatively held in Khann Vs. Dhillon ( AIR 1964 SC 497 ) and Baldev Das Vs. Filmistan ( AIR 1970 SC 406 ) that the Revision lies even against interlocutory order. Even prior to 1976 Amendment Act, the Apex Court has already authoritatively held in Khann Vs. Dhillon ( AIR 1964 SC 497 ) and Baldev Das Vs. Filmistan ( AIR 1970 SC 406 ) that the Revision lies even against interlocutory order. Following these pronouncements the Explanation was added indicating that expression "any case which has been decided includes an order made or an issue decided" includes an order made or an issue decided. In other words Revision would lie against an order (interlocutory or final) and even against an order deciding an issue. To put it differently by this Explanation a substantial change was brought in the concept of the case decided. The Explanation has been couched in the language having wide sweep. If any order has been made or any order deciding an issue has been passed, that means that the case has been decided. In the instant case as the order was made rejecting the application to admit the document pertaining to the authorisation, hence this amounts to case decided. In case all the provisions of Section 115 of the Code are read together, in that event the impugned order rejecting the application to admit certain documents amounts to the case decided. The preliminary objection raised by the opposite party is overruled and the present Civil Revision is maintainable. 8. Reverting to the merits of the case, the provisions of Order 13 Rule 1 and Order 18 Rule 17-A of the Code be read together. Order 13 Rule 1 provides that documentary evidence shall be produced at or before the settlement of the issues. Order 13 Rule 2 of the Code provides that in case good cause is shown, the documentary evidence can be received at a subsequent stage. Order 18 Rule 17-A of the Code enacts that in case a party satisfies the Court that a particular document was not within his knowledge or he could not produce it along with other evidence, in that case the Court may permit that party to produce that evidence at a later stage. An application was filed to admit some documents after close of the documentary evidence. In such matters Rule 1 of Order 13 would not apply. Rule 2 of Order 13 of the Code reflects that in case good cause was shown, the same can be admitted in evidence at a subsequent stage. An application was filed to admit some documents after close of the documentary evidence. In such matters Rule 1 of Order 13 would not apply. Rule 2 of Order 13 of the Code reflects that in case good cause was shown, the same can be admitted in evidence at a subsequent stage. The application was filed and reasons were indicated how the documents about authorisation could not be filed earlier. Consequently the condition was prima facie satisfied. Rule 2 of Order 13 of the Code has to be read along with Rule 17-A of Order 18 of• the Code, which provides that 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 term as may appear to it to be just and proper. In the present case the application was filed for inclusion of documents for which reasons were indicated that even after exercise of due diligence the documents could not be filed earlier, and consequently it was filed after close of the evidence. But the Court below without considering the reasons indicated in the application and without holding as to why the documents could not have been admitted in evidence, even if produced at a later stage, rejected the same. Rule 2 of Order 13 and Rule 17-A of Order 18 of the Code deserve to be read together and the court below has not given any reason about the requirement of Rule 17-A of Order 18 and Rule 2 of Order 13, rather findings have been recorded on the merit of the document as to whether it was genuine or not. This amounts to failure to exercise the jurisdiction even though the same was vested in the Court. But according to the proviso this Court cannot vary or reverse the order of the court below, except where the order passed finally disposes of the proceedings, or if it had been passed in favour of the person applying for Revision it would have finally disposed of that proceeding. But according to the proviso this Court cannot vary or reverse the order of the court below, except where the order passed finally disposes of the proceedings, or if it had been passed in favour of the person applying for Revision it would have finally disposed of that proceeding. As the application of the applicant in Revision was to admit certain documents at a later stage and it also contained reasons for not filing the documents of authorisation at an earlier stage. We have perused the application and the same contains sufficient reasons for not furnishing certain documents at the earlier stage. But that application was rejected. The rejection of the application disposes of the application to file documents at a later stage. The rejection was against the provision of Order 13 Rule 2 and Order 18 Rule 17-A of the Code. The rejection of such application of the applicant amounts to disposal of the proceedings and in case this order was allowed to stand, it would occasion a failure of justice. 9. In Adalat Chaudhary's case (AIR 1984 Patna 223) (supra) the learned Single Judge of this Court has held that the scope of the Rules 1 and 2 of Order 13 and Rule 17-A of Order 18 of the Code is that the Court would not be justified to reject the admission of the documents on the ground of closure of the evidence. The effect of this provision has to be taken into account before passing the order of rejection of the documents. Baldev Das vs. Filmistan ( AIR 1970 SC 406 ) (supra) was a case where it was held that the Revision would be maintainable against an interlocutory order. 10. In S.M. James and another Vs. Dr. Abdul Khair (AIR 1961 Patna 242) it was held by a Single Judge of this Court that the provisions of Rules 1 and 2 of Order 13 of the Code and Rule 17-A of Order 18 of the Code and Circular Order (Civil), 1954 and Rule 10 have to be read together and it was the discretion of the Court to admit any document even after it was filed later. In our opinion, therefore, a perusal of the impugned order would indicate that the court below has exercised its jurisdiction without looking into the provisions of law contained under Rule 2 of Order 13 and Rule 17-A of Order 18 of the Code. In other words, the Court below first must have recorded its findings as to whether the document could not be filed earlier inspite of the due diligence of the plaintiff-petitioner. In that view of the matter the impugned order cannot be sustained, as it is against the provisions of Order 13 Rule 2 read with Order 18 Rule 17-A of the Code. 11. In view of the premises aforesaid, this Civil Revision application succeeds and the same is allowed. The impugned order dated the 30th, of January, 1990 is, accordingly, set aside and the learned Subordinate Judge, Gopalganj is directed to decide the matter afresh within three months from the date a certified copy of this order is furnished, in accordance with law in the light of the observations made above. In the circumstances of the case, however, there shall be no order as to costs. S.K. Singh, J. -I agree.