Pitani Sai Ganesh Kumar @ P. Ganesh Kumar v. Pitani Nagamani
2017-02-10
A.K.RATH
body2017
DigiLaw.ai
JUDGMENT : A.K. RATH, J. This petition challenges the order dated 25.8.2014 passed by the learned Gramya Nyaylaya, Atabira in C.S.No.16 of 2013, whereby and where under, the learned trial court rejected the application of the plaintiff to mark the documents as exhibits after closure of evidence. 2. The petitioner as plaintiff instituted the suit for a declaration that RSD No.813 dated 22.9.2007 is illegal and not binding on him and permanent injunction impleading the opposite parties as defendants. Pursuant to issuance of summons, the contesting defendants entered appearance and filed written statement. After closure of evidence from both sides, the plaintiff filed an application to mark the certified copy of R.S.D. No.10161201295 dated 26.12.2012 and the certified copy of deed of re-conveyance dated 29.8.2000 executed by B.M., S.D.C.C. Bank, Godbhaga Branch in favour of his father as exhibits. It is stated that the above two deeds are very much essential for adjudication of the dispute between the parties. Earlier the above two deeds could not be tendered in evidence due to some “unavoidable circumstances”. Further the certified copies of the two deeds are public documents and admissible in evidence. The contesting defendants 5 and 6 filed objection stating therein that the documents have no bearing in the facts of the case. The petition has been filed to protract the litigation. The learned trial court came to hold that the registered sale deed has no connection with the case. The deed of re-conveyance does not relate to the suit land. Held so, the learned trial court rejected the application. 3. Heard Mr.P.Radhakrishna, learned Advocate for the petitioner and Mr.A.R.Panigrahi, learned Advocate for the opposite parties 5 and 6. 4. Mr.Radhakrishna, learned Advocate for the petitioner submitted that the documents sought to be marked as exhibits by the plaintiff have vital bearing in the suit. The same could not be exhibited during trial due to some unavoidable circumstances. Further those documents are public documents. No prejudice would be caused to the defendants if the same are marked as exhibits. 5. Per contra, Mr. A.R. Panigrahi, learned Advocate for the opposite parties 5 and 6 submitted that after closure of evidence, the petition has been filed to protract the litigation. The plaintiff was in possession of the said documents, but no explanation had been offered as to why those documents could not be tendered into evidence.
5. Per contra, Mr. A.R. Panigrahi, learned Advocate for the opposite parties 5 and 6 submitted that after closure of evidence, the petition has been filed to protract the litigation. The plaintiff was in possession of the said documents, but no explanation had been offered as to why those documents could not be tendered into evidence. Further, the documents have no bearing in the suit land. 6. Order 7 Rule 14 CPC provides for production of document on which plaintiff sues or relies. Sub-Rule (3) of Rule 14 of Order 7 CPC provides that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. Order 13 Rule 1 CPC provides that the parties or their pleader shall produce, on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with the plaint or written statement. The Code had a specific provision in Order 18 Rule 17A CPC for production of evidence not previously known or which could not be produced despite due diligence. The said provision was deleted with effect from 1.7.2002. 7. In Kanda and others v. Waghu, AIR (37) 1950 PC 68, the Privy Council held that when it is a matter of admitting public records at a late stage, the Court has a discretion, and while generally speaking it will be a wise exercise of the discretion to admit such evidence, the question must be decided in each case in the light of the particular circumstances. 8. In K. K. Velusamy v. N.Palanisamy, (2011) 11 SCC 275 , the apex Court held as follows; “10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded.
Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions. 11. There is no specific provision in the Code enabling the parties to re-open the evidence for the purpose of further examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for reopening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications. 13. The Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a late stage, after the conclusion of his evidence if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002.
That provision was deleted with effect from 1.7.2002. The deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence. 14. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.” xxx xxx xxx 9. On the anvil of the decisions cited supra, the instant case may be examined. 10. After closure of evidence, the plaintiff filed an application to mark the certified copy of RSD No.10161201295 dated 26.12.2012 and the certified copy of deed of re-conveyance dated 29.8.2000 as exhibits. The plaintiff was in possession of the deed of re-conveyance since 2000 and the sale deed since 2012. No plausible explanation has been offered to the satisfaction of Court for not filing the documents on or before the settlement of issues. The object of Order 13 Rule 1 CPC is to lay down the stage when a party shall file documentary evidence so that each knows on what document the other party seeks to rely and gets ready for trial. Merely using the words “unavoidable circumstances” are not suffice. The discretionary power of the Court has to be used sparingly.
The object of Order 13 Rule 1 CPC is to lay down the stage when a party shall file documentary evidence so that each knows on what document the other party seeks to rely and gets ready for trial. Merely using the words “unavoidable circumstances” are not suffice. The discretionary power of the Court has to be used sparingly. The said power is not intended to be used to fill up omissions in the evidence. 11. In the wake of aforesaid, the petition, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.