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Factors to be considered by court while deciding application for production of documents at the stage of final argument

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revn. No. 1595 of 1993 and Civil Misc. No. 6697-C.I.I. of 1994 (O&M)

Decided On: 19.03.1998

Mam Raj
Vs.
Smt. Sabiri Devi and Ors.

Hon’ble Judges/Coram: Swatanter Kumar, J.

Citation: AIR 1999 P & H 96

1. In this revision petition, C. M. No. 6697-CII of 1994 was filed by the respondent No. 1 praying for vacation of the stay of further proceedings granted by this Court vide order dated 1-6-1993.

2. While hearing this application, with the consent of the learned counsel for the parties, arguments on the merits of the revision itself were heard for final disposal as the matter is pending for a considerable period in this Court.

3. The facts giving rise to the present petition are that the plaintiff Mam Raj had filed a suit for declaration on 30th October, 1981 in the Court of Sub-Judge. Kamal to the effect that he is owner in possession of 4/9th share of the land measuring 265 kanals owned by Kirpal Singh. He claimed to be the adopted son of Kirpal Singh on the basis of unregistered Will dated 7th April, 1981. Kirpal Singh died on 8th April, 1991. This suit was contested by Smt. Sabiri Devi and others stating that she is the widow of Kirpal Singh and the entire land measuring 265 Kanals belonging to Kirpal Singh has been inherited by her on the basis of Will dated 13-3-1981 in her favour. Sabiri Devi who claimed to be an old and illiterate lady of 80 years and not keeping good health stated that taking advantage of her physical condition Mam Raj had played a fraud and had got some documents signed from her. She signed the said documents on the plea that the property was being given to her and her children and she was subjected to a fraud as even the counsel who allegedly engaged on her behalf, Shri Bir Singh, Advocate, in fact was working with the counsel for the plaintiff, Mam Raj. Shri T. L. Garg, Advocate. She also stated that the agreement was not signed by her.

4. On the above pleadings, when the suit was fixed for arguments on 21-4-1993, the defendant. Smt. Sabiri Devi filed an application under Order 18, Rule 17-A of the Code of Civil Procedure praying that her statement be recorded on the basis of the above facts and that the previous statement before the Court was given under pressure of the plaintiff. This application of the defendants was allowed by the trial Court vide order dated 8th May, 1993, which has been impugned in the present revision.

5. The contention of the learned counsel for the petitioner is that once the case was fixed for arguments, the learned trial Court could not entertain an application for leading of additional evidence. Learned counsel further argued that on merits of the case the application could not be allowed because she had sufficient opportunity to prove her case in regard to the alleged fraud.

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6. On the other hand, learned counsel for the respondents has argued that the compromise based on earlier statement of the applicant was a result of complete fraud played upon her by all concerned. It was not signed and no satisfaction of the Court was recorded in the previous decree, in consonance with the spirit of the provisions of Order 23, Rule 3 of the Code of Civil Procedure. For this purpose, he made a reference to the judgment of the Supreme Court in the case of Banwari Lal v. Smt. Chando Devi through L.R.P. MANU/SC/0152/1993 : 1992 JT (Suppl) SC 420 :AIR 1993 SC 1139). On the strength of this legal position, he contended that the original compromise is void in law. It being a result of fraud and contrary to the law laid down by this judgment, the applicant was entitled to lead additional evidence with regard to the fact constituting the fraud played Upon her even by her counsel.

7. Coming to the merits of these contentions, the first contention raised by the learned counsel for the petitioner with regard to the maintainability of the additional evidence merits rejection at the very out set, in vie.w of the recent judgment rendered by this Court in the case of Chandgi v. Mehar Singh, Civil Revision No. 2134 of 1997 decided on 12-3-1998 (reported in MANU/PH/0254/1998) wherein it has been held that the application for additional evidence, can be moved at any stage that is till the Court concerned becomes functus offtcio of the matter before it and signs the judgement finally determining the issues involved in the suit.

8. Adverting to the second argument raised on behalf of the respondents that in the facts and circumstances of the case, the present application could not have been allowed. The learned trial Court based on the judgment in the case of Sri Siya Ram v. Leelawati MANU/UP/0025/1990 : AIR 1990 All 75 equated the case of the applicant to that of Leelawati (pardanashin lady) because the applicant was illiterate, aged and sick lady. The fact that the applicant had five sons and three daughters and out of which one daughter was widow and one daughter had died, there could be hardly any reason for her to enter into the compromise with the plaintiff, who was claiming to be an adopted son of her husband. Another factor which must weigh with the Court is that on the date of hearing, counsel appearing for the applicant was changed and on that very date learned counsel working in the office of the learned counsel for the non-applicant was engaged to get the compromise recorded in this pending suit. The suit had been pending since 1981 and without accepting arty benefit to enter into a settlement after four years i.e. in the year 1985 does not appears to be free from doubt and specially when the applicant has come out with totally different story and stated that the compromise was recorded on mis-representation and fraud played upon her.

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9. Learned counsel for the petitioner has relied upon 1980 CLJ 527 (Punj and Har), Birham Prakash @ Rohtash v. Illaqa Magistrate etc. 1978 PLJ 276, Jai Bhagwan v. Lajwantj to argue that a witness cannot be called again and again and no order under Order 18, Rule 17A of the C.P.C. could be passed.

10. It is settled principle of law that the Court necessarily need not be guided by the provisions of law under which the application is made. The Court has to look into the contents of the application and the prayer made of such basis. What is to be seen is whether the applicant is entitled to the relief prayed for in the facts and circumstances of the case. The Court is not powerless to grant relief, if the ends of justice and equity demands because the powers vested in the Court under Section 151 of the C.P.C. are of wide scope and ambit. Reference in this regard can be made to the judgment in the case of Ankayya v. Subhadrayya MANU/TN/0199/1931 : AIR 1932 Mad 223 and Anumulasetti Venkateswara Rao v. Konduri Siraiah MANU/AP/0099/1978.

11. In the present case, the applicant has approached the Court though at a later stage praying that a fraud has been played upon her in recording the compromise during the pendency of the suit. She must be given leave to lead further evidence and make her statement disclosing the fraud which has been played upon her in execution of compromise exhibit C-1. The suit is admittedly pending since 1981. The ends of justice demands that the applicant, in the peculiar facts and circumstances of this case, should be granted leave to lead additional evidence. The cumulative effect of the relevant provisions of Order 18 of the C.P.C. regulating the leading of additional evidence; recalling of witness for further evidence and obligation of the parties to lead complete evidence gives wide discretion to the Court to pass appropriate order. Of course, such discretion has to be exercised in consonance with the judicial principles.

12. At this stage, it may be relevant to make a reference to the observation of this Court in the case of Banwari v. Nagina MANU/PH/0530/1998where the Court held as under:–

“The concept of additional evidence has been given wider dimension in the recent judgment of Hon’ble Apex Court in Jaipur Development Authority v. Smt. Kailashwati Devi MANU/SC/0819/1997 : (1997) 117 Pun LR 880 : AIR 1997 SC 3243) (SC), where the Court held that additional evidence could be allowed even at the Appellate stage under Rule 27(aa) of Order 41, C.P.C. if the applicant satisfies the basic requirements of the rule and even no evidence has been led by the applicant at the trial stage. In that case ex pane decree was passed against the defendant in the suit, the appeal was preferred before the High Court and two documents were sought to be filed which were in possession of the defendant relating to possession of the suit property. High Court rejected the said prayer , but the same was allowed by Hon’ble Apex Court.

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The cumulative effect of the above well enunciated provisions governing the subject is that the Court has to exercise its jurisdiction to derive balance between ends of justice and extent of default of the applicant. The powers given to the Court under Sub-rule (4) of Rule 2 of Order 18 cannot be curtailed by reading the provisions Of Rule 17-A of the same order. Both these provisions must be read and construed harmoniously so as to further cause of justice and necessary for effective and complete adjudication of rival contentions raised by the parties in a suit or proceedings. The procedural law must be moulded to further cause of justice rather than frustrate the same. Non-production of documents after exercise of due diligence appears to be very foundation of filing such an application. Compliance of this condition must be seen in context to the facts and circumstances of the case and in conformity with the record before the Court. Exercise of due diligence would have to give wider and meaningful connotation which must be in conformity with the basic rule of law. In some cases negligence of a party or counsel may not really have the effect of rendering such an application untenable. This view finds support from the case of Jaipur Development Authority (Supra).

Reference can also be made to recent judgment of this Court in the case of Malkiat Singh v. Suit. Hardip Kaur alias Malkial Kaur 1998 (1) All 165 where the Court held as under:–

“I am of the opinion that in fact this application has been filed u/O. 18, Rule 17-A, C.P.C. and even the impugned order itself shows that the application was u/O. 18, Rule 17-A, C.P.C. and not u/O. 18, Rule 17, C.P.C. As regards the maintainability of the application, I am of the opinion that such a prayer can be allowed in the interest of justice and keeping in view the facts and circumstanccs of this case the application has been correctly allowed by the trial Court. The view 1 have taken finds full support from a judgment of this Court in Shera v. Asha Ram, 1987 PLJ 278. This judgment has relied on an earlier decision of this Court in Om Parkash v. Sarupa MANU/PH/0122/1981.”
Such a power to recall a witness for further examination is specifically vested in the Court and can be exercised in the facts and circumstances of this case. The provisions of Order 18, Rule 2, Sub-rule (4) and Section 151, C.P.C. can always come to aid and rescue of the applicant. The interest of the applicant in the property, seen in the background of the aforestatecl averments, tilt favour of equity and judicial discretion in favour of the applicant. The application has been allowed by the learned trial Court by a detailed and well reasoned order which does not suffer from any jurisdictional error.

13. Consequently, this revision petition is dismissed without order as to costs. Interim stay dated 1-6-1993 stands vacated.

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