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1997 DIGILAW 147 (HP)

PUNJAB NATIONAL BANK v. HIMACHAL NIWAR TAPE AND LACE MAKING CENTRE

1997-04-30

SURINDER SARUP

body1997
JUDGMENT Surinder Sarup, J.—This order will dispose of an application under Order 18, Rule 17-A, C.P.C. read with section 151, C.P.C., seeking permission to lead additional evidence by producing Sh H.K Gupta, the then/Branch Manager of the Plaintiff-bank in order to prove the documents pertaining to the case 2. Briefly, the facts are that the plaintiff-applicant has filed a suit against the defendants-respondents for recovery of Rs, 8,97,845-30 p. with costs and future interest. The suit was filed ia the year 1983 and for one reason or another, has been pending since then Initially, arguments were heard for some time on 1-8-1996. 9-9-1996, 10-9-1996 and 7-11-1996. On the last date, the learned Counsel for the plaintiff-applicant Shri Anand Sharma staled that on going through the voluminous record of the case he found that some additional evidence is necessary to be adduced on behalf of the plaintiff. Hence the present application. 3. The grounds taken up in the application are that at the time of filing of tie suit, Shri H.K Gupta was the Branch Manager of the plaintiff-bank and bad signed the plaint Evidence of both the parties has teen recorded and tie case has been fixed for arguments. At the time of admission and denial of documents filed by the parties, the defendants had admitted the power of Attorney filed by Shri H.K. Gupta, the then Branch Manager Therefore, the Counsel appearing on behalf of the plaintiff-bark had erroneously made a statement en 18-7-1990 to the effect that Shri H.K. Gupta, PW is being given up as unnecessary and he does not want to examine him The statement was made on the premise that since the power of attorney has already been admitted and the resolution annexed with the plaint and statement c f accounts are not required to be proved specifically since the authority of the Manager had already been admitted by the defendants. The exact circumstances for giving up the witness cannot be explained as the original Counsel for the plaintiff Shri Chhabil Dass has passed away During the course of preparation of the case, it has transpired that the witness, Shri H.K Gupta was essential and necessary in order to prove the case of the plaintiff and he bad been given up inadvertently and through mistake His statement is necessary for the adjudication and pronouncement of the judgment in this case No prejudice would be caused to the defendants as the case is just being heard and the arguments on behalf of the plaintiff applicant are being addressed. Hence the present application, which is accompanied by the affidavit of Shri S.K. Palta, the present Senior Manager of the plaintiff-bank. 4. In the reply filed on behalf of the defendants, preliminary objections have been taken that the present application is highly belated one and has been filed at the stage when the case is being hearing in order to fill the lacuna and is wholly misconceived. Order 18, Rule 17-A permits production of evidence—(i) which was not previously known ; or (ii) could not be produced inspite of due diligence On merits, it has been stated that it is not mentioned in the application as to what documents are required to be proved by Shri H.K. Gupta 5. In the rejoinder filed by the plaintiff-applicant, the stand taken in the application has been re iterated I have heard the learned Counsel for the parties at length and have also examined the record The issue framed in this case is as follows! : Whether Shri H.K. Gupta as Manager and Principal Officer of the plaintiff bank is authorised to file the present suit on behalf of the plaintiff-bank ? OPP. 6 In support of his submissions, as contained in the application, the learned Counsel for the plaintiff applicant has cited various authorities. They are Ganesh Dutt and others v. Dharam Butt and others, 1992 (2) Sim, L.C. 188. It has been laid down therein that Order 18, Rule 17-A is a rule of procedure which is meant to advance the cause of justice and not to thwart it. These provisions are not to be interpreted in a manner which defeats the ends of justice. It has been laid down therein that Order 18, Rule 17-A is a rule of procedure which is meant to advance the cause of justice and not to thwart it. These provisions are not to be interpreted in a manner which defeats the ends of justice. Even if it is found that a party has been negligent in not producing evidence, which is necessary for deciding the dispute, the production of such evidence may be allowed at a later stage ia the interest of justice. In Punjab Kaur v, Gurcharan Singh and others, 1992 (2) Vol. 102 Punj LR 141 , it was held by the Punjab and Haryana High Court that when the case was fixed for rebuttal evidence of the plaintiff and application for additional evidence under Order 18, Rule 17-A, C.P.C. by defendants was filed for comparing the thumb impressions of the defendants on the sale deed, the main defence that the sale deed was a forged document on account of negligent conduct of the party, the evidence which goes to the root of the case cannot be scuttled. 7. The next authority cited by the learned Counsel for the plaintiff-applicant is another judgment of the Punjab and Haryana High Court reported as Raj Kumar v Improvement Trust City Hansi through its Administrator etc., 1988 2 PLR 196 It has been held therein that the provisions of Order 18, Rule 17 A, C.P.C. could not be interpreted in a manner which defeats the cause of justice In the given facts of that case, the parties were allowed to produce additional evidence. The learned Counsel has then relied on Shera v Asha Ram, 1987 (1) PLR 463, which is also a decision by the Punjab and Haryana High Court. In that case also, while interpreting the provisions of Order 18, Rule 17A the Court held that party could not be allowed to suffer for any omission or lapse on the part of his Counsel and the rules of procedure are meant to advance he course of justice. In that case also, while interpreting the provisions of Order 18, Rule 17A the Court held that party could not be allowed to suffer for any omission or lapse on the part of his Counsel and the rules of procedure are meant to advance he course of justice. The next decision cited at the Bar by Shri Anand Sharma, learned Counsel for the plaintiff applicant is a judgment of the Delhi High Court reported as Suresh Kumar v, Baldev Raj, AIR 1984 Delhi 439 While interpreting the expression "at any stage” it was held therein that ?t means of any stage before judgment is pronounced and stage of the case alone should not weigh with Court to such extent as to overshadow other aspects of matter The last authority cited on behalf of the plaintiff-applicant is Om Prakash v. Sarupa and others, AIR 1981 P and H 157. In that case it was held that during examination of witness, vital questions were not put to him due to lapse of Counsel, he can be examined again when the same related to requirement of law. 8. On the other hand, in support of the objections taken in the reply, the learned Counsel for the defendants respondents has cited a ruling of the Rajasthan High Court reported as Kanhaiya Lal Manchandiya v Lal Chand Baddani and others, AIR 1988 Raj 181 Therein, it as held that the expression "could not be produced” in Rule 17 A of Order 18 rules out voluntary non production and section 151 cannot be invoked for admitting additional evidence The words necessary evidence" does not attract the provisions of Rule P-17-A of Order 18 or section 151 ibid The learned Counsel for the defendants-respondents has also relied on an unreported decision of this Court, in Civil Revision No. 257 of 1995, State Bank of India v Fankra, decided on 27-11-1996. 9. After hearing the learned Counsel for the parties, going through the record and analysing indepth the rulings cited by them in support of their respective contentions, I am of the considered view that in view of the plethora of judgments of this Court, Punjab and Haryana High Court and the Delhi High Court cited at the Bar on behalf of the plaintiff/applicant, this application deserves to be allowed, The solitary ruling relied on ...............................