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2020 DIGILAW 579 (JHR)

Hiralal Biswas v. Sunil Kumar Sen

2020-06-09

RAJESH SHANKAR

body2020
JUDGMENT : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the order dated 16.05.2019 (Annexure-5 to the writ petition) passed by the Civil Judge (Jr. Div.)-II, Dhanbad in Title Suit No. 58 of 2010 whereby the application filed by the petitioner for recall of the order dated 02.08.2018 by which the evidence of the defendant/petitioner was closed, has been rejected. 2. Learned counsel for the petitioner submits that the plaintiffs/respondents have filed Title Suit No. 58 of 2010 seeking the following reliefs:- “(a) For a decree in favour of the plaintiffs against the defendants declaring the plaintiffs absolute right, title and interest by confirming their possession over the suit land. (b) A decree for permanent injunction restraining the defendants, their men, agents, servants to interfere over the suit land. (c) For decree of recovery of Khas Possession of the suit land, if the plaintiffs are found out of possession. (d) For cost of the suit. (e) Decree for other and further relief which the plaintiffs are entitled.” 3. On notice, the petitioner/defendant No. 1 appeared in the said suit and filed his written statement denying the claim of the plaintiffs/respondents. The evidence of the plaintiffs was closed on 11.07.2017 and the case was fixed for evidence of the defendant. The petitioner filed the original sale deeds on 14.12.2011 and he had to prove the same by producing a witness. However, the evidence of the petitioner/defendant No. 1 was closed on 02.08.2018. Thereafter, the petitioner filed an application on 17.01.2019 for recalling the order dated 02.08.2018 and for allowing him to adduce further evidence. The respondent Nos. 1 to 5/plaintiffs filed rejoinder to the said petition of the petitioner. The learned Court below rejected the said application of the petitioner vide the impugned order dated 16.05.2019. Hence, the present writ petition. 4. Learned counsel for the petitioner submits that the said sale deeds are the relevant documents for proper adjudication of the case and as such the same are required to be proved by producing a witness. Since the petitioner is an old and ailing person, he was not able to produce the witness to prove the said documents before the date of closure of his evidence. If the petitioner is not permitted to prove the said documents by adducing the witness, he would suffer irreparable loss and injury. 5. Since the petitioner is an old and ailing person, he was not able to produce the witness to prove the said documents before the date of closure of his evidence. If the petitioner is not permitted to prove the said documents by adducing the witness, he would suffer irreparable loss and injury. 5. Heard learned counsel for the petitioner and perused the impugned order dated 16.05.2019. The learned Court below while rejecting the application of the petitioner, has recorded that after examination of the petitioner as DW-1, his evidence was closed at the request of his lawyer. It has also been recorded that the documents which the petitioner has sought to be proved, were filed without obtaining the leave of the Court as per the provisions of law. 6. Learned counsel for the petitioner puts reliance upon the judgments of this Court rendered in the case of Phatan Mandal vs. Sk. Kamruddin and Others, W.P. (C) No. 4247 of 2013 and Smt. Shobha Devi vs. Smt. Gauri Devi, W.P. (C) No. 7484 of 2011. 7. To appreciate the contention of learned counsel for the petitioner, I have gone through the aforesaid judgments. 8. In the case of Phatan Mandal (Supra), the plaintiff’s evidence was closed without examining him as a witness and this Court having taken into consideration the facts and circumstances of that case, disposed of the writ petition allowing an opportunity to the petitioner to examine himself as a witness in the said case. 9. In the case of Shobha Devi (Supra), this Court found that without appreciating the fact that the defendant witness had filed the attendance, the Court below closed the defendant’s evidence and thus the reopening of the evidence was allowed as a last opportunity on imposing cost. 10. In the case of K.K. Velusamy vs. N. Palanisamy, (2011) 11 SCC 275 , the Hon’ble Supreme Court has held as under:- “13. The Code earlier had a specific provision in Order 18 Rule 17-A for production of evidence not previously known or the evidence which could not be produced despite due diligence. 10. In the case of K.K. Velusamy vs. N. Palanisamy, (2011) 11 SCC 275 , the Hon’ble Supreme Court has held as under:- “13. The Code earlier had a specific provision in Order 18 Rule 17-A 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. 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 reopening 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 on 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.” 11. Order XVIII Rule 17-A of the CPC, which enables the party to produce evidence at any later stage, has been omitted by the Code of Civil Procedure (Amendment) Act, 1999 [w.e.f. 01.07.2002]. Order XVIII Rule 17-A of the CPC, which enables the party to produce evidence at any later stage, has been omitted by the Code of Civil Procedure (Amendment) Act, 1999 [w.e.f. 01.07.2002]. The purpose of deletion of the said provision is to expedite the trial of the case and to prevent its misuse. However, even after deletion of the said provision, the Court in exercise of the power conferred under Section 151 of the CPC, may allow any party to lead evidence even at a later stage, if it is necessary in the interest of justice and to prevent the abuse of the process of the Court. If it is found that between completion of evidence and hearing of arguments, some new evidence has come which could not be produced earlier, the Court may allow any party to lead the evidence, subject to imposition of cost as deems appropriate. While exercising the inherent power, the Court has to be doubly cautious as there is no legislative guidance to deal with such a procedural situation and the exercise of power solely depends upon the discretion and wisdom of the Court according to the facts and circumstances of the case. The Court has not been given carte blanche to grant any relief. 12. In the case in hand, the petitioner seeks reopening of the evidence to enable him to produce a witness for proving the sale deeds. The said sale deeds were not filed by the petitioner before settlement of the issues as has been mandated under Order XIII Rule 1 of the CPC. The said sale deeds were however filed subsequently without taking the leave of the Court. The petitioner failed to provide any sufficient explanation as to why the leave of the Court was not taken before filing the said sale deeds. Moreover, learned counsel for the defendant himself prayed for closure of the evidence after examination of the petitioner as DW-1 without adducing any evidence to prove the said sale deeds. The Court below after taking into consideration the facts and circumstances of the case, rejected the said petition of the petitioner. When a delay is caused by any party to the suit in complying the time frame given in the statute for doing any particular action, the burden of satisfying the Court by giving sufficient explanation for such delay lies upon the defaulting party. When a delay is caused by any party to the suit in complying the time frame given in the statute for doing any particular action, the burden of satisfying the Court by giving sufficient explanation for such delay lies upon the defaulting party. Before this Court also, the petitioner has not sufficiently explained the delay in filing the said documents which were not brought on record before settlement of the issues. Moreover, the petitioner has not averred in the writ petition as to whom he wants to examine to prove the said sale deeds and how the same is necessary in the ends of justice. 13. In view of the above factual and legal position, I find no infirmity in the impugned order dated 16.05.2019 passed by the Civil Judge (Jr. Div.)-II, Dhanbad in Title Suit No. 58 of 2010 warranting any interference of this Court. 14. The present writ petition is, accordingly, dismissed.