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2018 DIGILAW 839 (ORI)

Binod Kishore Mohanty v. Hiramani Mohanty

2018-12-12

A.K.RATH

body2018
JUDGMENT A.K.Rath, J. - This petition challenges the order dated 24.8.2018 passed by the learned Civil Judge (Senior Division), Berhampur in C.S. No.62 of 2005 whereby and whereunder the learned trial court has rejected the application of the plaintiff to mark the documents as exhibits after closure of evidence. 2. This is the third journey of the petitioner before this Court. The dispute lies in a very narrow compass. Suffice it to say that the petitioner instituted a suit for partition. The defendants entered contest and filed a written statement denying the assertions made in the plaint. After closure of evidence, the plaintiff filed an application to exhibit the letter dated 14.10.1974 of E.S. Mohanty issued in favour of Binodini Mohanty and the letter dated 30.10.1976 of Binodini Mohanty to D.E. Mohanty. The same having been rejected, the petitioner filed WPC No.773 of 2012 before this Court. Learned Single Judge dismissed the petition on 12.8.2013. Assailing the same, the petitioner filed Writ Appeal No.439 of 2013. The petitioner did not press the writ appeal. Accordingly, the writ appeal was disposed of as not pressed. In the interregnum witnesses were examined on behalf of the defendants. Thereafter, another application seeking self-same relief was filed. Learned trial judge came to hold that earlier petition was rejected. The order was confirmed by this Court. The documents are no way connected to the present suit. Evidence from both the sides has been closed. In the event the documents are marked as exhibits, the same will cause prejudice to the defendants. Held so, he dismissed the application. 3. Heard Mr. Sanjeev Udgata, learned counsel for the petitioner and Mr. B.D. Das, learned counsel for the opposite parties. 4. Mr. Udgata, learned counsel for the petitioner submits that pursuant to the order of this Court, after closure of evidence of the plaintiff, the will was exhibited with objection. In the changed circumstance, the petition was filed. He further submits that if there is abuse of process of the court, or if interest of justice requires the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is not a straitjacket formula. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is not a straitjacket formula. There can always be exceptions in exceptional or extraordinary circumstances, to meet the ends of justice and to prevent abuse of process of court. No prejudice shall be caused to the defendants, since they will get the chance of rebuttal. To buttress the submission, he relies on the decision of the apex Court in the case of K.K. Velusamy v. N. Palanisamy , (2011) AIRSCW 2296. 5. Per contra, Mr. Das, learned counsel for the opposite parties submits that the matter has attained finality. The petitioner earlier filed an application. After closure of evidence, the plaintiff filed an application to exhibit the letters dated 14.10.1974 and 30.10.1976. The same having been rejected, the petitioner filed WPC No.773 of 2012 before this Court. Learned Single Judge dismissed the petition. Assailing the same, the petitioner filed Writ Appeal No.439 of 2013. He withdrew the writ appeal. There is no changed circumstance. The application has been filed to protract the litigation. In the meantime the suit has been posted for judgment. 6. In K.K. Velusamy (supra), the apex Court held thus; "12. 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. 13...if there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extraordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognized with reference to exercise of power under Sec.151 Code. 16. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that nonproduction earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application. 7. In Arjun Singh v. Mohindra Kumar and others , (1964) AIR SC 993, the apex Court held that where the hearing is completed, the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that the Order XX Rule 1 CPC permits judgment to be delivered after an interval after the hearing is completed. There is no hiatus between the two stages of reservation of judgment and pronouncing the judgment. Taking a cue from Arjun Singh (supra), this Court in the case of Smt. Gajalaxmi Chhotray v. M/s. Tripty Drinks (Pvt.) Ltd. & others , (2015) 2 OrissaLR 1118, held thus; "...there is no hiatus between the two stages of reservation of judgment and pronouncing the judgment. It is only for the convenience of the court that the pronouncing the judgment may be deferred. Thus no application for amendment could be moved after the arguments were heard and suit was closed for judgment." 8. The matter may be examined on the anvil of the decisions cited supra. After closure of evidence, the plaintiff filed an application to exhibit the letter dated 14.10.1974 of E.S. Mohanty issued in favour of Binodini Mohanty and the letter dated 30.10.1976 of Binodini Mohanty to D.E. Mohanty. The same having been rejected, he filed WPC No.773 of 2012 before this Court, which met with the same fate. Thereafter, he filed Writ Appeal No.439 of 2013. The reasons best known to him, he withdrew the same. Again an application has been filed seeking the self-same relief. The same having been rejected, he filed WPC No.773 of 2012 before this Court, which met with the same fate. Thereafter, he filed Writ Appeal No.439 of 2013. The reasons best known to him, he withdrew the same. Again an application has been filed seeking the self-same relief. There is no exceptional or extraordinary circumstance to admit the documents as exhibits after rejection of the first petition. The documents are not relevant to the matter in issue. The application has been filed to cover up the lacunae. The same is a ruse. 9. Since the suit is posted for judgment, no direction can be issued to the learned trial court to mark the documents as exhibits. The petition is dismissed.