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Rajasthan High Court · body

2015 DIGILAW 1919 (RAJ)

Major Narpat Singh v. Chagan Kanwar

2015-11-19

ALOK SHARMA

body2015
JUDGMENT : 1. This petition has been filed against the order dated 3.10.2015 passed by the Additional District Judge No.2, Jaipur Metropolitan, Jaipur dismissing the petitioner - defendant's (hereinafter referred as defendant) application for leading further evidence by way of an additional affidavit. 2. The facts of the case are that in a suit for partition laid by the respondent- plaintiff (hereinafter plaintiff), written statement was filed and issues framed. Subsequent to the evidence of the plaintiff, the defendant having filed affidavit in evidence was being cross-examined. At this stage on 31.7.2015, the defendant filed an application for leading further evidence by way of additional affidavit in evidence stating that certain documents in original/certified copy already filed before the Court but having mistaken to have been lost, were not included in the original affidavit in evidence and therefore an additional affidavit to exhibit such documents already on record of the court in defence evidence be allowed. The said application has been dismissed by the impugned order. Hence this petition. 3. Counsel for the defendant submitted that in the facts obtaining, more particularly that the documents sought to be exhibited by way of additional evidence are already on record of the court having been earlier filed, it was in the interest of justice for the trial court to have allowed the application in issue as no prejudice would conceivably be caused to the plaintiff respondents. The defendant admittedly was being at the relevant time cross-examined and so could have been on the additional affidavit as evidence and qua the exhibits marked thereon. He submitted that it was not a case where documents sought to be marked exhibits were of suspect as to their genuineness because they had already earlier been filed before the trial Court, but forgotten but then espied accidentally. Counsel submitted that procedure under CPC is a handmaid of justice. There is neither any statutory prohibition nor any precedent where additional affidavit in the circumstances obtaining could not have been filed or taken on record. In the circumstances, the trial court ought to have invoked its powers under Section 151 CPC in allowing the application to file an additional affidavit -in evidence to mark the documents with the court as exhibits in the course of defence in the suit. In the circumstances, the trial court ought to have invoked its powers under Section 151 CPC in allowing the application to file an additional affidavit -in evidence to mark the documents with the court as exhibits in the course of defence in the suit. It is submitted that in the facts obtaining the impugned order thus vitiated by the failure of the trial court to exercise jurisdiction vested in it and for the reason that if the impugned order is not set aside it would cause manifest injustice to the defendant. Reliance has been placed on Rameshwar & ors. v. Om Prakash & ors . 4. Mr B.L. Agarwal with Mr Akash Agarwal, counsel for the plaintiff has supported the judgment of the trial court. He emphatically submitted that the Code of Civil Procedure does not visualise filing of two affidavits in evidence and if this practice were to be sustained by this Court, it would only entail delaying of trials in civil courts which would be contrary to the intent of legislature for expedited trials as envisaged by the amendment to CPC in the year 1999 effective 2002.Heard. Considered. 5. It is admitted that the documents which were sought to be exhibited by way of additional affidavit in evidence are already on record of the trial Court having been earlier filed. It is also an admitted position that the application for taking additional affidavit on record to mark the aforesaid documents as exhibits was filed during the cross-examination of the defendant on his original affidavit in evidence. There is nothing on record to show that in the event the additional affidavit in evidence were to be allowed and the documents already on record of the Court be marked exhibits any prejudice would be caused to the plaintiff as the defendant could be put to cross-examination thereon and raise objections, if advised, to the admissibility of documents sought to be exhibited. Mr. Mehta is right in submitting that CPC is a handmaiden of justice and there being no specific prohibition thereunder, the trial court ought to have invoked its powers under Section 151 CPC to allow the filing of the additional affidavit in evidence to mark the documents already on record as exhibits in support of the defence of the defendant in the plaintiff's suit for partition. The Hon'ble Punjab and Haryana High Court in Rameshwar (supra) had in similar circumstances directed that additional evidence be taken on record by way of additional affidavit. 6. Consequently, in the facts and circumstances of the case, I am inclined to set aside the impugned order 3.10.2015 passed by the Additional District Judge No.2, Jaipur Metropolitan, Jaipur and direct that the additional affidavit in defence evidence filed by the defendant be taken on record for the purpose of marking the documents already on record of the trial court as exhibits. It is made clear that the plaintiff would be at liberty to raise all just objections with regard to admissibility of the said documents at the time of documents being marked as exhibits before the trial court and put the deponent to cross-examination. 7. Consequently, the petition is allowed with costs of Rs. 15,000/- to be paid by the defendant to the plaintiff.Writ Petition Allowed.