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2014 DIGILAW 1517 (PNJ)

Nathu Ram Prem Chand v. Jagroop Singh

2014-11-11

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J.: - This petition is filed against the order dated 25.07.2012, dismissing the application of the petitioner for examining one Ram Kumar as PW by way of additional evidence. 2. It is alleged that the petitioner filed the suit for recovery on the basis of entries in the account books and during the pendency of the suit, he came across a judgment reported as Karnail Singh v. M/s Kalra Brothers, Sirsa, [2009(1) Law Herald (P&H) 579] : 2009(2) RCR (Civil) 380 wherein entries in the account books were disbelieved, inter alia, on account of non-examination of scribe, therefore, in order to avoid any such objection on behalf of the defendant, he sought permission to examine Ram Kumar, scribe of some entries in the account books. It is also alleged that the said judgment was not in the notice of the counsel for the petitioner who was of the opinion that Manoj Kumar PW1, partner of the firm, had seen Ram Kumar while making entries and identification of his handwriting was sufficient to prove the entries. 3. Learned counsel for the petitioner has argued that the trial Court has failed to appreciate that the account books have already been produced on record as Ex.P1 to P28 in the statement of PW1 Manoj Kumar, partner of the firm, who has also made some of the entries and in whose presence Ram Kumar, Clerk/Muneem of the firm, has also made some entries but there was no cross-examination of Manoj Kumar in this regard and no objection was raised for non-examination of Ram Kumar. It is also submitted that the trial Court has erred in dismissing the application on the ground that since the plaintiff had himself closed its evidence, therefore, it cannot be allowed to examine Ram Kumar at the belated stage. Referring to the judgment of the Supreme Court in the case of K.K. Velusamy v. N. Palanisamy, [2011(3) Law Herald (SC) 2036] : 2011 AIR SC (Civil) 1000, it is contended that the Court can always allow a party to produce fresh evidence even when his evidence has already been closed and arguments were heard. 4. Counsel for the petitioner has also relied upon two decisions of this Court in the cases of Punjab Kaur v. Gurcharan Singh, 1992(2) PLR 141 and Aggarwal Cotton Waste Co. v. Shree Singhal Spinners Pvt. Ltd., 2004(2) R.C.R. (Civil) 637. 4. Counsel for the petitioner has also relied upon two decisions of this Court in the cases of Punjab Kaur v. Gurcharan Singh, 1992(2) PLR 141 and Aggarwal Cotton Waste Co. v. Shree Singhal Spinners Pvt. Ltd., 2004(2) R.C.R. (Civil) 637. The aforesaid two judgments have been cited on the issue that additional evidence can be led at the stage of rebuttal evidence to advance the cause of justice especially when the documents are of the defendant and if there is any negligence, the evidence, which goes to the root of the case, cannot be dis-allowed and the other party can be compensated with costs. 5. Counsel for the respondent, however, has submitted that actually when the main arguments were being addressed in the suit, the defendant had relied upon a Division Bench judgment of the Madras High Court in the case of P. Sood & Co. v. Peerchand Misrimalji Bhansali, 2005(3) R.C.R. (Civil) 64 wherein it has been held that if the author of the Bahi is not examined, entries in the accounts books cannot be exhibited in the statement of witness who has not recorded the entries. The plaintiff, at this stage, filed the application to plug the lacunae left in the evidence by it because of its own mistake for not examining Ram Kumar Muneem who had made 2-3 entries in the account books and rather relied upon the testimony of PW1 Manoj Kumar to prove the entries Ex.P1 to P28. It is submitted that the petitioner cannot be allowed to lead oral evidence at the stage of arguments of the suit in order to fill up the lacunae in his case to the detriment of the interest of the defendant-respondent and the cost is not the panecea for all the ills. In support of his submissions, counsel for the respondent has relied upon various judgments of this Court in the cases of Surjit Singh and others v. Jagtar Singh and other, [2006(4) Law Herald (P&H) 3199 (DB)] : 2007(1) R.C.R. (Civil) 537 (DB), Mohan Pal Singh and another v. Karampal Singh and another, 2010(4) R.C.R. (Civil) 627 and Guranditta Mal v. Gian Mitter, 1980 CurLJ 200. The aforesaid judgments, relied upon by counsel for the respondent, are on the issue as to whether a party can be allowed to lead evidence on the issue for which burden of proof was on that party. 6. The aforesaid judgments, relied upon by counsel for the respondent, are on the issue as to whether a party can be allowed to lead evidence on the issue for which burden of proof was on that party. 6. In the present case, the issue is precisely as to whether a party can be allowed to lead additional evidence to cover up his negligence or lacunae at the stage of arguments in the name of advancement of cause of justice, otherwise detrimental to the interest of the defendant. 7. There is no dispute that Ram Kumar Muneem was available throughout the proceedings and could have been examined by the plaintiff to prove entries recorded by him in the account books but the plaintiff chose not to examine him and tried to prove the entries Ex.P1 to Ex.P28 by PW1 Manoj Kumar. It was during the course of arguments when the respondent relied upon the decision of this Court in the case of Karnail Singh’s case (supra), the plaintiff realized that he may not be able to prove the entries which were scribed by Ram Kumar in the absence of his examination in the witness box and thus in order to prove those entries, the application was filed for leading additional evidence. 8. There is no doubt that earlier there was a specific provision under Order 18 Rule 17A in the Code of Civil Procedure, 1908 (here-in-after referred to as the “CPC”) for production of evidence which was not earlier known to the party or which could not be produced despite due diligence but the said provision was deleted w.e.f. 01.07.2002 as it was found that there was no time gap between the conclusion of evidence and commencement of the arguments and also to avoid misuse of the said provision by the parties to prolong the proceedings on the ground of discovery of some new evidence. However, the Courts have been exercising its jurisdiction allowing additional evidence by invoking its inherent powers under Section 151 of the CPC on the ground of relevancy and necessity, on such terms as it may determine but the fact remains as to whether such type of additional evidence should be allowed which could be led by the petitioner in his affirmative evidence as the witness was very much available or could be allowed in rebuttal when the issue is also to be proved by the petitioner or to overcome the negligence caused by it or the lacunae left in its evidence. 9. This Court, in the case of Munna Lal v. Sadhu Ram and others, [2009(3) Law Herald (P&H) 1865] : 2009(3) PLR 696, has held that no additional evidence can be permitted by re-opening affirmative evidence after closing of evidence of the defendant and the plaintiff cannot be permitted to have another opportunity to lead evidence, simply because he has failed to prove his case. 10. In K.K. Velusamy’s case (supra), the Supreme Court, while dealing with a case wherein an application was filed under Order 18 Rule 17 of the CPC for re-calling of witness, held that the Court can permit fresh evidence if it is relevant to render justice and non-production earlier was for valid reasons but if the application is found to be mischievous or frivolous or to cover up the negligence or lacunae, it should be rejected with heavy costs. 11. Thus, in view of the aforesaid facts and circumstances, the application filed by the petitioner has rightly been dismissed by the Court below and it does not call for any interference by this Court in this revision petition. Dismissed. ---------0.B.S.0------------ —————————