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2008 DIGILAW 54 (JK)

Pardeep Kumar v. Prabha Bakshi

2008-02-28

J.P.SINGH

body2008
1. Aggrieved by learned Munsiff, Kathuas order of September 15, 2007, allowing plaintiff/respondent, Prabha Bakshis application for production of additional evidence, the petitioners/defendants have approached this Court for setting it aside, on the ground, that the trial Court had illegally exercised jurisdiction in permitting plaintiff/respondent to lead additional evidence, when her seven years old suit, seeking partition of a two storeyed residential house, belonging to one Sat Paul Sharma, had been slated for final hearing. 2. To appreciate the submissions made at the Bar, reasoning giving by learned Munsiff, in allowing the application needs to be noticed. This reads, thus:- "I have considered the respective contentions of the counsels for the parties. It would be profitable at this stage to briefly state the facts of the plaintiffs case, that one Sat Paul, out of his free will and consent married with plaintiff at Partap Garh, Jammu, on 20.6.1980 performing all the requisite Hindu customs as required under J&K Hindu Marriage Act. Plaintiffs further case is that Sat Paul Sharma married the plaintiff after the death of his wife, who died in the year 1976. The plaintiff through the present suit is seeking partition possession of the property left by late Sat Paul. The defendants in their written statement have disputed the fact of marriage with Sat Paul and has also denied her right to the property and its possession. The plaintiff has produced witnesses in support of her case. One of the issue involved in the suit is whether the plaintiff is legally wedded wife of the deceased Sat Paul. The plaintiff through the medium of this application wants to produce one witness, who is admittedly husband of the defendant no.3, to depose with regard to the factum of marriage between the plaintiff and late Sat Paul. From the facts, it appears that evidence of the plaintiff as well as of the defendant is closed and the suit in hand has been fixed for final arguments. From the facts, it appears that evidence of the plaintiff as well as of the defendant is closed and the suit in hand has been fixed for final arguments. Thus keeping in view the facts of the case in hand, and issue involved in the case and looking into the provisions of order 18 Rule 2, sub-Rule 4 and Rule I7-A from the bare perusal of the aforesaid sections, the court has ample power to permit the party to examine any witness at any stage and this power can be exercised even if the case for additional evidence does not specify the conditions laid down by order 18 Rule-17-A of C.P.C. In the light of aforesaid discussions, 1 am of the considered view that examination of the witness sought to be examined, is necessary for proper adjudication of the dispute involved in the case. Accordingly, the application is allowed and the plaintiff is permitted to produce the witness, viz. the husband of defendant No.3 on her own responsibility, on the next date of hearing i.e. 26.9.2007. The application stands disposed of and shall form part of the main file. Let the file come up for evidence of the plaintiff on 26.9.2007." 3. The view taken by learned Munsiff, that the Court has ample power to examine any witness, at any stage and the power can be exercised, even if, the conditionalities prescribed under Order XVIII Rule 17-A of the Code of Civil Procedure, are not satisfied, is too wide a proposition, which the law may not contemplate for acceptance. 4. Additional evidence may be permitted by a Court, only if, the production of such evidence was covered by the prescribed parameters of Order XVIII Rule 17-A of the Code of Civil Procedure, is the rule and it is only in exceptional cases, that the Court may also exercise this power, provided it was satisfied, of course, for the reasons to be recorded, and spelt out, that the production of such evidence was necessary for the just and proper decision of the case. 5. No such special case has been made out in the present case and neither the trial Court has spelt out any finding, as to whether any such special case had been made out by the respondent for production of additional evidence. 5. No such special case has been made out in the present case and neither the trial Court has spelt out any finding, as to whether any such special case had been made out by the respondent for production of additional evidence. The respondents application too does not make out any such special case, justifying production of additional evidence, when admittedly the case of the respondent was not covered by the provisions of Order XVIII Rule 17-A of the Code of Civil Procedure. 6. Respondents application is so cryptic that it does not even mention the bare minimum which may be required to consider, as to whether or not, production of additional evidence was necessary for the just and proper decision of the case. 7. Learned Munsiff, has, thus, erred in going by what appears to have been argued before him that the respondent had desired to produce Pratiba Devi-defendant No.3s husband as witness in the case. No such case had been pleaded by the respondent in her application, and in that view of the matter, learned Munsiff, should not have acted only on the submission of respondents counsel alone in exercising his discretion in permitting additional evidence when the respondent, as the minutes of the case so indicate, had closed her evidence on her own volition on 16.09.2006, when she and her advocate had made a statement to this effect before the Court. 8. For all what has been said above, this revision petition, therefore, succeeds and order dated 15.09.2007 of learned Munsiff, Kathua, is set aside, 9. Records shall be sent back to learned Munsiff, to ensure that final hearing of the case was concluded within a period of four months.