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Rajasthan High Court · body

2019 DIGILAW 2919 (RAJ)

Jankidas, By Caste Ramsnehi, Resident At Present Ramdwara, Bakhtasagar, District Nagaur (Raj. ) v. Gopaldas

2019-12-02

DINESH MEHTA

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ORDER : 1. The writ petition at hands is directed against the order dated 05.11.2019, passed by learned Additional District Judge No.2, Nagaur (hereinafter referred to as ‘the trial Court’) whereby the plaintiff’s application dated 15.07.2019 filed under order XVIII Rule 17, read with Section 151 of the Code of Civil Procedure has been allowed. 2. Briefly stated the facts are that the respondents -Gopaldas and others instituted a suit for declaration while impleading the present petitioner as defendant. At the stage of plaintiff’s evidence, however after completion of his evidence (PW-1), the plaintiff filed an application under Order VII Rule 14 of the Code of Civil Procedure and sought leave to produce additional document on record. Said application was allowed by the trial Court vide its order dated 15.07.2019. 3. Once the application for production of additional document was allowed, the plaintiff moved subject application dated 15.07.2019 under Order XVIII Rule 17 of the Code of Civil Procedure and requested the trial Court to permit him to appear in the witness box and make requisite deposition about the documents which were subsequently taken on record. 4. Trial Court allowed petitioner’s said application and permitted him (plaintiff-PW-1) to come in the witness box subject to a stipulation that the plaintiff would confine his evidence to the documents permitted to be taken on record subsequently vide order dated 15.02.2019. 5. Petitioner-defendant is aggrieved of the said order dated 15.07.2019, vide which the plaintiff has been permitted to appear in the witness box for leading supplementary evidence. 6. Challenging the order, above referred, Mr. Harish Purohit, learned counsel for the petitioner contended that when the plaintiff-respondent had already come in the witness box and led his evidence, he cannot be permitted to appear in the witness box again and to fill up the lacunae. He further argued that documents which are subsequently taken on record, can well be confronted with the defendant and other relevant witnesses. For the purpose of proving the same, the plaintiff himself is not required and thus, the Court below has committed error of law in accepting the application. 7. In support of his contention, Mr. Harish Purohit relied upon the judgment of Hon’ble Supreme Court reported in 2011 AIR SCW 2296 in the case of K.K. Velusamy Vs. N.Palanisamy particularly para 16 thereof, which reads thus; “16. We may add a word of caution. 7. In support of his contention, Mr. Harish Purohit relied upon the judgment of Hon’ble Supreme Court reported in 2011 AIR SCW 2296 in the case of K.K. Velusamy Vs. N.Palanisamy particularly para 16 thereof, which reads thus; “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 non-production earlier was for valid and sufficient reasons, the court may exercise its discretion 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 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 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.” 8. Taking cue from the judgment aforesaid, Mr. Harish Purohit submitted that the Court below was not justified in accepting respondent’s application, as the same will unnecessarily delay the disposal of the suit. 9. Heard and perused the relevant material, including the application. 10. Taking cue from the judgment aforesaid, Mr. Harish Purohit submitted that the Court below was not justified in accepting respondent’s application, as the same will unnecessarily delay the disposal of the suit. 9. Heard and perused the relevant material, including the application. 10. Indisputably, plaintiff’s application under Order VII Rule 14 of the Code of Civil Procedure was allowed by the trial Court on 15.07.2019, after the plaintiff had led his evidence. Such being the position, the trial Court has given an opportunity to the plaintiffs to appear in the witnesses box and depose with respect to the documents subsequently taken on record. 11. It is not in dispute that the matter was at the stage of plaintiff’s evidence and only plaintiff had been examined and the suit has not proceeded substantially. In the opinion of this Court, once the trial Court accepted respondent’s application under Order VII Rule 14 of the Code, it was imperative for the trial Court to permit plaintiffs to appear in the witness box and make requisite deposition in relation to such document. 12. So far as the judgment of Hon’ble Supreme Court in K.K. Velusamy (supra) is concerned, it postulates that the trial Court should not allow application under Order XVIII Rule 17 of the Code of Civil Procedure as a matter of course. Such position of law cannot be disputed; however, if the situation at hands is considered, it is beyond doubt that acceptance of the application vide impugned order will not lead to protraction of the proceeding. As against this, if the application is rejected, it would lead multiplicity of the litigation, as the order dated 15.07.2019 vide which application under Order VII Rule 14 was allowed, would have been rendered redundant inasmuch as the plaintiffs would not have any occasion to lead evidence with respect to the document which have been brought on record subsequently. 13. Be that as it may, since the trial Court has exercised its discretion and allowed plaintiffs’ application vide order impugned, this Court does not find it to be a fit case warranting influence under Article 227 of the Constitution of India, being guided by the principles laid down in Shalini Shyam Shetty & Ors. Vs. Rajendra Shanar Patil, reported in (2010) SCC 329 and Surya Dev Rai Vs. Ram Chander Rai & Ors., reported in 2003(6) SCC 675 . 14. The writ petition, therefore, fails. Vs. Rajendra Shanar Patil, reported in (2010) SCC 329 and Surya Dev Rai Vs. Ram Chander Rai & Ors., reported in 2003(6) SCC 675 . 14. The writ petition, therefore, fails. 15. Stay application also meets the same fate.