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SCA/6382/2004 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6382 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
KUMARPAL
NAGARDAS SHAH & 2
Versus
SHARDABEN
WD/O RATIKANT KASTURCHAND SHAH & 3
=========================================
Appearance
:
MR PM BHATT for Petitioner(s) :
1 - 3.
RULE SERVED for Respondent(s) : 1 - 3.
MR AMAR D MITHANI
for Respondent(s) : 1 - 4.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 08/11/2011
ORAL
JUDGMENT
[1] By
way of this petition under Article 227 of the Constitution of India,
petitioners No.1 and 2 – original plaintiffs and petitioner
No.3 – witness examined on behalf of the original plaintiffs
have challenged the order dated 13.05.2004 passed by the 2nd
Joint Civil Judge (S.D.), Ahmedabad (Rural) below Ex.142 in
Special Civil Suit No.53 of 1999 whereby the application Ex.142
preferred by the petitioner No.3 in his capacity as a witness of the
original plaintiffs for production of the documents, after his
examination-in-chief was over, came to be rejected.
[2] The
brief facts giving rise to this petition can be summarized as under :
The
petitioners No.1 and 2 are the original plaintiffs who have filed
Special Civil Suit No.53 of 1999 in the Court of Civil Judge (S.D.),
Ahmedabad Rural for specific performance of the contract against the
original defendants. It appears that the petitioners No.1 and 2
examined the petitioner No.3 as their witness. After
examination-in-chief of petitioner No.3 as a witness of the original
plaintiffs came to an end. Subsequently, an application came to be
preferred Ex.142 by the petitioner No.3 in his capacity as witness
seeking permission to once again to enter the witness box and produce
certain document which inadvertently he failed to adduce as evidence
during the course of his examination-in-chief. It is pertinent to
note that in the application Ex.142 it has been averred that such
documents which contained signature of the plaintiffs and the
contents are also in the handwriting of the original plaintiffs was
in possession of the petitioner No.3 as witness, but inadvertently he
failed to produce the same during the course of his
examination-in-chief. Having realized this witness i.e. petitioner
No.3 preferred an application Ex.142.
[3] This
application Ex.142 was adjudicated by learned Civil Judge and after
taking into consideration the objections in writing filed by the
original defendants i.e. original respondents herein, the learned
Civil Judge in exercise of his discretionary powers rejected the
application. Learned Civil Judge in the facts and circumstances of
the case refused to exercise its discretion in this regard after
assigning cogent reasons.
[4] It
would be expedient at this stage to state that earlier there was a
provision in the Civil Procedure Code in the form of Order 18, Rule
17-A permitting production of evidence not previously known or which
could not be produced despite due diligent. Order 18, Rule 17-A came
to be omitted by the Code of Civil Procedure (Amendment) by Act 46
of 1999. Order 18, Rule 17-A was inserted by amendment in 1976 with a
view to give an opportunity to have party to adduce the evidence
under the circumstances mentioned therein. By the Amendment Act,
2002, this sub rule has been deleted. It is quite evident that Rule
17-A has been deleted with a view that unnecessarily applications
are not filed primary with a view to prolong the matter. However, I
do not propose to say that deletion of Order 18, Rule 17-A
disentitles a party to produce evidence at a later stage. If a
party satisfies the Court that after exercise of due diligence that
evidence was not within his knowledge or could not be produced at the
time the party was leading evidence, the Court may permit leading of
such evidence at latter stage. In this regard, it would be
appropriate to quote paragraph No.14 of Supreme Court ruling in the
case of Salem Advocates Bar Associations Vs. Union of India reported
in AIR 2005 SC 3353(1) as under :-
“In
Salem Advocates Bar Association’s case, it has been clarified that on
deletion of Order XVIII, Rule 17-A which provided for leading of
additional evidence, the law existing before the introduction of the
amendment, i.e. 1st July, 2002, would stand restored. The
Rule was deleted by Amendment Act of 2002. Even before insertion of
Order XVIII Rule 17-A, the Court had inbuilt power to permit parties
to produce evidence not known to them earlier or which could not be
produced in spite of due diligence. Order XVIII Rule 17-A did not
create any new right but only clarified the position. Therefore,
deletion of Order XVIII Rule 17-A does not disentitle production of
evidence at a later stage. On a party satisfying the Court that after
exercise of due diligence that evidence was not within his knowledge
or could not be produced at the time the party was leading evidence,
the Court may permit leading of such evidence at a later stage on
such terms as may appear to be just.”
[5]
Learned counsel Mr.P. M. Bhatt appearing for the petitioners –
original plaintiffs has relied on the decision of the Supreme Court
in the case of Ashok Sharma Vs. Ram Adhar Sharma, reported in (2009)
11 SCC 47, in support of his contentions that the Civil Judge ought
to have allowed the application Ex.142 keeping in mind Order-16,
Rule1-A of the Civil Procedure Code. I am afraid this ruling of the
Supreme Court, would not be of any help to the petitioners as the
issue involved in this case is all together different. In the case
before the Supreme Court, the trial Court refused the prayer of
production of the documents on a simple interpretation of the word
“production” as used in Order 16 Rule 1 of the Code
which, according to the trial court, would mean that the witness can
be summoned to bring the record to prove the documents placed on
record by the parties to the suit. In the case before the Supreme
Court, the document was not produced by the plaintiffs either along
with the plaint or at the time of framing of the issues. The High
Court permitted the document to be taken on record at the instance of
the witnesses. In these facts Supreme Court held that Order 16 Rules
1 and 1-A of the Code, if read together, would clearly indicate that
it is open to a party to summon a witness to the court or even may,
without applying for summons, bring a witness to give evidence or to
produce documents. The Supreme Court clarified that since Rule 1-A is
subject to the provisions of sub-rule (3) of Rule 1, all that can
be contended is that before proceeding to examine any witness, who
might have been brought by a party for the purpose, the leave of the
court may be necessary.
[6] In
the present case, petitioner Nos.1 and 2 as original plaintiffs
preferred application before the learned Civil Judge praying that the
petitioner No.3 may be permitted to be examined as their witness and
that application was allowed and accordingly petitioner No.3 in his
capacity as a witness of the original plaintiffs stepped
into the witness box. His examination-in-chief was recorded and after
examination-in-chief was closed at a later stage, application Ex.142
came to be preferred stating that he may be permitted once again to
enter the witness box to produce the documents which he could not
produce when his examination-in-chief was in progress. Learned Civil
Judge found that the explanation was too lame and feeble and did not
deem fit to exercise his discretion in favour of the petitioner No.3.
[7] It
is not the case of the petitioner No.3 that when he led the evidence,
the evidence now sought to be produced, was not within his knowledge
and could not be produced despite due diligence. The reason for
non-production of such evidence at the relevant time is that it could
not be produced due to inadvertence. Inadvertence is a form of
negligence, therefore, non-production of the evidence sought to be
now produced, is attributable to negligence and failure to produce
such evidence because of inadvertence / negligence, is not a lawful
ground to permit a party to lead additional evidence within the ambit
and scope of Rule 17A of Order 18 of the Code as it stood before
amendment.
[8] Having
considered the entire matter threadbare, I am of the view that no
jurisdictional error can be said to have been committed by the
learned Civil Judge in rejecting the application Ex.142 warranting
any interference in this petition Article 227 of the Constitution of
India. In the above view of the matter, this petition is accordingly
rejected with no order as to costs. Rule is discharged.
[9] It
has been brought to my notice that there are two civil suits in
progress and which have been ordered to be consolidated. Special
Civil Suit No.53 of 1999 and Special Civil Suit No.978 of 1997, both
are now more than almost 13 years old, I deem it fit and proper to
direct the concerned Civil Court to take up both the civil suits for
hearing and dispose them of in accordance with law on or before 30th
April 2012. It is also brought to my notice that the issues in both
the suits were already framed way back in the year 1999. It is
needless to clarify that both the civil suits shall be decided by the
concerned Court without being any influence by any finding recorded
in the order passed below Ex.142 dated 13.05.2004 passed in Special
Civil Suit No.53 of 1999.
[
J.B.PARDIWALA, J. ]
vijay
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