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Whether court should give more opportunities to parties in interest of justice?


Writ Petition No. 6695 of 2008

Decided On: 24.10.2008

Cosmosteels Private Limited
Supermax International Pvt. Ltd. and Ors.

Hon’ble Judges/Coram: Anoop V. Mohta, J.

Citation: 2009(1) LJSOFT 11

1. The Petitioner – Original Defendant has challenged the impugned orders dated 30/08/2008 and 05/04/2007, whereby, the Courts below permitted the Respondents – Original Plaintiffs in a Suit for eviction and possession to place on record additional affidavit and documents. The Courts below after considering the material placed on record, though this Application was filed at the stage of evidence, permitted to file on record. The Application as filed, in the suit for eviction is essential for proper adjudication of the matter. These documents could not be produced at the earlier stage. Therefore, delay. But that itself cannot be the reason to discard such material. It is desirable that full opportunity required to be given to both the parties even if documents are placed at the belated stage or at the stage of Appeal on certain conditions. We cannot overlook that it is the Court to decide and adjudicate the issue/dispute between the parties. If for proper adjudication, the Courts find and permit such material to produce on record, even at belated stage, and has given full opportunity to the other party and further to cross-examination and to oppose the contents of the same. I see there is no reason to interfere with the said orders.

2. The submission with regard to the deletion of Order XVIII Rule 17-A of the Code of Civil Procedure has been already considered in Babasaheb S/o Limbaji Mete and Anr. v. Sumanbai W/o Bajarang Saraf and Ors. MANU/MH/0696/2008 : 2008(4)BomCR895 . In which it is observed as under:

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5. This Court has noted that the deletion of Rule 17-A of Order XVIII is done in order to curtail abuse of the facility as a matter of right of a party to call for additional evidence often done in past.

6. It does not reveal by way of inference or direct prohibition that the inherent jurisdiction and the power of the Court to call for witnesses whenever on facts such permission may be justified and justice warrants it, at any stage is not curtailed.

7. While right of party to call for further witnesses is brought under embargo, jurisdiction of the Court to follow the very course is seen kept unaffected and consciously and deliberately so i.e. it is not barred specifically by any addition corresponding to deletion of Rule 17-A supra.

8. This Court will have to keep in mind totality of scheme of Code of Civil Procedure. Attention of this Court is drawn to Rule 27 of Order XVI of the Code of Civil Procedure, 1908. This rule permits grant of permission to lead additional evidence even at the stage of appeal on certain conditions. The analogy of Rule 27 of Order XVI as to permissibility in circumstances of additional evidence will have to be kept in mind before employing the rigour emerging due to deletion of Rule 17-A of Order XVIII of the Code of Civil Procedure.

9. Giving reasonable opportunity to prove a case is as crucial and as vital in the process of doing justice as is an opportunity of defence to an adversary. Giving such opportunity would therefore be a primary and assumed pillar and cannon of adjudication in the endeavour of search of truth. Search of truth is the object, and not the part of procedural ritual.

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I am in full agreement with above view.

3. Once it is clear that the additional affidavit and documents have bearing on the matter at issue, those documents cannot be rejected on the ground of delay. Haji Munir Ahmed Mansoori v. State of Maharashtra and Ors. and V.P. Nagar Samanvay Samiti 2008 (2) M.L.J. 26.

4. It is also settled that Rules and procedure should be used in favour of giving opportunities to the parties; in the interest of justice and not to curtail it. Zolba v. Keshao and Ors. 2008(3) Bom. C R 7.

5. In J.M. Constructions v. Rustom P. Patel (Dr.) and Ors. MANU/MH/0682/2008 : (2008)110BOMLR2806 this Court has elaborately clarified that an order passed on interim notice is procedural order and, therefore, not amenable to remedy of revision under Section 34(4) of the Maharashtra Rent Control Act, 1999. The revisional Court decided the matter on merit also though recorded that the revision against such interim notice is not maintainable but maintained the basic order dated 5th April, 2007 which is a procedural order.

6. In view of above, I see there is no case made out to interfere under Article 227 of the Constitution of India.

7. The Petition is, therefore, dismissed.

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