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2000 DIGILAW 216 (HP)

MUNGALl DEVI v. KHUB RAM

2000-08-10

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J,—This revision petition is directed against the order dated 18.12.1999 passed by the learned sub-Judge, Ani whereby the application of the plaintiffs/petitioners (here-after referred to as "the plaintiffs") under Order 18 Rule 2(4) read with Rule 17-A and Section 151 of the Civil Procedure Code (hereafter referred to as "the Code") has been dismissed. 2. The admitted facts are that a suit for declaration instituted by the plaintiffs against the defendants/respondents (here after referred to as "the defendants") is pending disposal before the learned Sub-Judge and is at the stage of final arguments. It was at such stage that the plaintiffs moved an application under Order 18 Rule 2(4) read with Rule 17-A and Section 151 of the Code praying therein for grant for permission to formally exhibit some of the documents which had been filed at the time of institution of the suit and had been marked at the time of examination of one of the plaintiffs as a witness. It has been averred that it was at the time of preparing the arguments that the plaintiffs realised that due to bonafide mistake such documents, namely, death certificate of Deep Ram, his pension papers, death certificates of Janki, Roshan Lal, electricity bills, copy of pension Register and pension receipt, had been marked but had not been formally exhibited and proved as per the law. It is further claimed that the documents are of the nature which are incapable of being manipulated or forged, hence the application. 3. The application was resisted by the defendants. It was averred by the defendants in their reply that the application is motivated, and has been filed with an intent to fill in the lacuna and is not maintainable under the provisions under which it has been filed. It is also averred that the plaintiffs took more than three years to conclude their evidence which stood closed on 23.6.1999 and, thus, the plaintiffs had been negligent and the re-opening of the case is, therefore, not warranted. 4. The learned Sub-Judge dismissed the application as aforesaid, hence the present revision petition. 5. I have heard the learned Counsel for the parties and have also gone through the material placed on the file. 6. A preliminary objection was raised by the learned Counsel for the defendants about the maintainability of the present revision petition. 4. The learned Sub-Judge dismissed the application as aforesaid, hence the present revision petition. 5. I have heard the learned Counsel for the parties and have also gone through the material placed on the file. 6. A preliminary objection was raised by the learned Counsel for the defendants about the maintainability of the present revision petition. It was contended by the learned Counsel for the defendants that in view of the decisions rendered by this Court in Civil Revision No. 389 of 1999, (Kunji Devi and others v. Chaman Lal and others, decided on 11.7.2000) and Civil Revision No. 394 of 1999 (Kartar Chand and others v, Indira Shah and others, decided on 13.7.2000), this revision petition is not maintainable against an order allowing or disallowing an application under Order 18 Rule 17-A of the Code. 7. On the other hand, the learned Counsel for the plaintiffs has contended that the provisions of Order 18 Rule 17-A of the Code and those contained in Order 18 Rule 2 of the Code are intended to govern two different situations, therefore, the above decisions are not applicable to the present case. 7-A. To properly appreciate the controversy, a reference may be made to the relevant provisions. Rule 17-A of Order 18 of the Code reads as follows: "17-A. 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." 8. Rule 2 of Order 18 of the Code reads as follows:— "2. Statement and production of evidence.—(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case. (4) Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage." 9. It is evident on a bare reading of the provisions as contained in Rule 17-A supra that this Rule authorises the Court to permit a party to produce such evidence which was not previously known or could not be produced inspite of due diligence on the part of the party seeking production thereof at the relevant time. Thus, these provisions will apply to a case where the evidence sought to be produced was not brought on record earlier for want of knowledge or could not be so brought despite exercise of due diligence on the part of the party. 10. In the instant case the documents sought to be proved, had admittedly been filed at the time of institution of the suit and had even been marked at the time of examination of one of the plaintiffs, but could not be formally proved at the material time. Thus, the provisions of Rule 17-A of the Code are not attracted in this case and the ratio in the aforesaid cases is not attracted to the facts of the present case. 11. It is clear from a bare reading of Rule 2 supra that basically this Rule is intended to regulate the order in which the evidence of the parties is to be recorded. However, at the same time, this Rule authorises the Court for reasons to be recorded by it to direct or permit a party to examine any witness at any stage. There cannot be any dispute that expression at any stage as used in sub-rule (2) of Rule 2 supra means any stage of the suit prior to the delivery of the judgment. Therefore, the application moved by the plaintiffs shall, for all intents and purposes, fall within the scope of Rule 2(4) of the Code. 12. As already stated, the documents sought to be proved are not only on the record but have also been marked. They are required to be formally exhibited so that they are read in evidence. Therefore, the application moved by the plaintiffs shall, for all intents and purposes, fall within the scope of Rule 2(4) of the Code. 12. As already stated, the documents sought to be proved are not only on the record but have also been marked. They are required to be formally exhibited so that they are read in evidence. A litigant cannot be expected to know of the procedure and technicalities of law as is rightly claimed by the plaintiffs.. Once they had filed the documents sought to be exhibited at the time of institution of the suit, it was for their counsel to take care that the documents were formally exhibited so as they could be read in evidence and it was his duty to advise the plaintiffs to take appropriate steps for formally proving the said documents. The negligence on the part of the counsel in giving appropriate advice to the plaintiffs at the appropriate time, in my view, should not deprive the plaintiffs from formally proving the marked documents already on record. 13. So far as the delay caused in concluding their evidence by the plaintiffs and further delay which is likely to be caused in the event of the plaintiffs application being allowed and the consequential harassment to the defendants is concerned, it can be in such cases compensated by awarding adequate cost. 14. In view of the above position, the impugned order which debars the plaintiffs from formally proving the already marked documents on the record which are material and essential for the proper adjudication of the dispute between the parties, is a result of injudicious exercise of the discretion vested in the Court under Order 18 Rule 2(4) of the Code and is, therefore, unsustainable. 15. As a result, this revision petition is allowed and the impugned order is set aside. The application of the plaintiffs to formally prove the aforesaid documents placed on record is allowed and they are permitted to examine only such witnesses which are necessary to formally prove the said documents. Needless to say that the defendants shall have a right of leading rebuttal. The permission as accorded here-in-above to the plaintiffs is subject to payment of cost in the sum of Rs. 1,000 to be paid by them to the defendants on or before 18.9.2000. Needless to say that the defendants shall have a right of leading rebuttal. The permission as accorded here-in-above to the plaintiffs is subject to payment of cost in the sum of Rs. 1,000 to be paid by them to the defendants on or before 18.9.2000. On their failure to pay the cost on or before the stipulated day, the plaintiffs shall stand debarred from leading the evidence as permitted to be adduced herein-in-above. 16. The parties, through their learned Counsel, are directed to appear before the trial Court on 18.9.2000. Petition allowed.