JUDGMENT
Cyriac Joseph, J.
(1) This revision petition is filed against an order of the learned Single Judge, Delhi dismissing an application under Order Xviii Rule 17-A Civil Procedure Code filed by the petitioners.
(2) The petitioners are the defendants in suit no.604/91 and the respondent is the plaintiff. According to the petitioners, petitioner no.1 is the owner of premises no. K1 Lajpat Nagar Ii, New Delhi and the respondent is a trespasser in the said premises. The respondent filed the suit for permanent injunction against the petitioners. On 23.2.1995 the suit was adjourned to 22.3.1995 for the evidence of defendants and the defendants were directed to file list of witnesses. In the order dated 23.2.1995 no time was fixed for filing the list of witnesses. The defendants filed their list of witnesses on 21.3.1995. The application for examining defendant no.1 on commission was allowed by the trial court. When the case was posted on 27.7.1995 the defense witnesses namely Shri Ram Lal, Shri Surinder Pahwa, Dr.J.S.Gill and Shri Digvijay Singh were present in court but could not be examined. Shri S.S.Gill, defendant no.2 was examined and discharged. Subsequently defendants 1 and 3 also were examined. When the case came up on 28.8.95 for further evidence the defendants’ witnesses were not present and the trial court closed the evidence of the defendants erroneously holding that no list of witnesses was filed on record whereas the list of witnesses had been filed on 21.3.1995. Thereafter the defendants filed an application under Order Xviii Rule 17A Civil Procedure Code for permission to examine the witnesses. The application of the defendants was dismissed by the learned Civil Judge on 25.1.1997. The said order dated 25.1.1997 is under challenge in this revision petition.
(3) In the impugned order, the reasons given for dismissing the application are as follows:- “My attention is drawn to the provisions of Order Xviii Rule 17A Civil Procedure Code wherein it is held that where a party satisfies the court that after the exercise of due diligence any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just. In fact, no such reason is mentioned in the application and as per case of the defendants themselves, the evidence was well within their knowledge and was not produced. No reason has been mentioned for non-production of the witnesses on that day. Hence as far as provisions u/o Xviii rule 17-A Civil Procedure Code is concerned the application is devoid of any merit, same is dismissed.
(4) It would appear that the learned Civil Judge did not correctly understand the provisions contained in Order Xviii Rule 17A CPC. For convenience Order Xviii Rule 17A Civil Procedure Code is extracted below:- “17A.Where a party satisfies the court that, after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just.”
(5) As per the above provision, where a party satisfies the court that, after the exercise of due diligence, any evidence could not be produced by him at the time when he was leading his evidence, the court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just.
(6) In other words, even if such evidence was within his knowledge the party can be permitted to produce that evidence at a later stage provided the court is satisfied that after the exercise of due diligence the party could not produce that evidence. Hence the learned Civil Judge could not have dismissed the application on the ground that the evidence was well within the knowledge of the defendants but was not produced. The learned Civil Judge ought to have considered whether it was a case in which the defendants could not produce the evidence after exercise of due diligence even if such evidence was within the knowledge of the defendants’. A perusal of the impugned order indicates that the learned Civil Judge did not approach the issue with the correct perspective.
(7) The observation of the learned Civil Judge that no reason had been mentioned for non-production of the witnesses on 28.8.95 is not factually correct. In the application under Order Xviii Rule 17A Cpc, a copy of which is produced as Annexure C, it was specifically stated that on 28.8.95 the remaining witnesses could not be present due to their personal difficulty pertaining to their work. It was also stated that Shri Digvijay Singh and S.K.Pahwa were employed with companies and could not be present in court and that Shri Ram Lal was self-employed and was unable to close down his shop and attend the court on that day and that Shri H.S.Lamba who lived in Chandigarh also could not be present. It was further stated in the application that on 26.8.95 the cross-examination of defendant no.1 was to take place and in the bona fide belief that the counsel for the plaintiff would take considerable time the defendants did not press for witnesses to be present on 28.8.95. It was also stated that the witnesses had been present and appeared before the court on 26.4.95 and that they were not subsequently brought to the court by the defendants due to the continuing examination of the defendants’ witnesses.
(8) Learned counsel for the petitioners pointed out that the defendants did not expect the cross-examination of the defendant no.1 to be over on 26.8.95 but the cross-examination was concluded on the same day itself. Since there was only one day left before 28.8.95 and since that day was a Sunday the defendants could not produce the witnesses on 28.8.95 despite their best efforts.
(9) Learned counsel for the petitioners also submitted that the learned Civil Judge had closed the evidence of defendants on 28.8.95 erroneously holding that no list of witnesses was filed on record. It is not disputed by the respondent or his counsel that the defendants had filed the list of witnesses on 21.3.1995 and that it was on record.
(10) Learned counsel for respondent contended that the defendants had filed an application for review of the order dated 28.8.95 by which the defendants’ evidence was closed but it was subsequently withdrawn and that the defendants did not file any revision petition against the order dated 28.8.95 and therefore the order dated 28.8.95 closing the defendants’ evidence had become final and therefore the matter could not be re-opened by the defendants by filing an application under Order Xviii Rule 17A CPC. This contention of the learned counsel for the respondent cannot be accepted because an application under Order Xviii Rule 17A Civil Procedure Code can be filed and can be entertained even after an order had been passed closing the evidence. The only question to be considered is whether the court is satisfied about the requirements under the provisions of Order Xviii Rule 17A CPC.
(11) In the light of the above discussion I hold that the impugned order is vitiated by material irregularities and warrants interference under Section 115 of the CPC. In my view the reasons stated by the defendants are sufficient to satisfy the court that after exercise of due diligence the defendants could not produce the witnesses on 28.8.95. The reasons stated by the learned Civil Judge for dismissing the application are erroneous. If the application of the defendants under Order Xviii Rule 17A Civil Procedure Code is not allowed serious injustice will be caused to the defendants. Hence the application under Order Xviii Rule 17A Civil Procedure Code deserves to be allowed.
(12) Hence the impugned order dated 25.1.1997 is set aside. The application filed by the defendants (petitioners herein) under Order Xviii Rule 17A Civil Procedure Code stands allowed. The learned Civil Judge is directed to allow the defendants to examine the witnesses mentioned in the said application.
(13) The revision petition is allowed in the above terms. There will be no order as to costs.