SREEDHAR FINANCE Vs. J LINGAYYA

JUDGEMENT

(1.) The petitioner is the plaintiff in the suit which was filed for recovery of the money due to the plaintiff's firm. After the arguments were heard and judgment was reserved in the suit, the petitioner filed I.A.No.2079/95, out of which the present Civil Revision Petition arises, for reopening the matter and recalling the plain tiff for the purpose of filing the partnership deed. The Court below dismissed this petition following the decision in "T. Ramachandra vs. K.Rama Murthy and others".

(2.) The learned counsel for the petitioner contends that the petition has to be considered as filed under Order 18, Rule 17-A and not under Order 18, Rule 17 of the Code of Civil Procedure and that in the decision of this Court in "T. Ramachandra vs. K. Rama Murthy and others" Order 18, Rule 17 of the Code of Civil Procedure was interpreted and Order 18, Rule 17-A was not brought to the notice of the Court. The learned counsel for the petitioner has also relied on Manjunadha Sarma vs. Union Bank of India", "Adalat Choudhary vs. Satan Choudhary" and "Suresh Kumar vs. Baldev Raj". In "Manjunadha Sarma vs. Union Bank of India" petition for reopening was filed under Section 151 when the suit was part-heard. Justice Ramaswamy (as he then was) held that mere quoting of a wrong provision of law does not vitiate the order so long as there is specific provision provided in the statute. The specific provision referred to is Order 18, Rule 17-A. It was further held in that case, that the Court below has not committed any illegality in allowing the petition since it is well settled that additional evidence can be adduced even at the appellate stage and that if that he so, there is no prejudice to the other side if the opposite party is permitted to adduce evidence in the suit itself, because there will be sufficient opportunity for him to cross-examine the witness. In the next case "Adalat Choudhary vs. Satan Choudhary" (supra) after the closure of plaintiff's evidence, petition was filed for reopening the suit under Order 18, Rule 17-A and the Court below dismissed the petition on the ground that the plaintiff's evidence was closed. The Patna High Court set-aside the order taking the view that the close of plaintiff's evidence was not a legal bar to reopen the suit. The Court also held that the object of introduction of Rule 17-A by the Code of Civil Procedure (Amendment) Act, 1976, was to minimize the filing of application to receive additional evidence at the appellate stage. The next decision relied upon is "Suresh Kumar vs. Baldev Raj" (supra). In this case though the petition was filed under Order 18, Rule 17and 17-A of C.P.C.the discussion is only with reference to Rule 17 of C.P.C. As we are concerned with Rule 17-A, this does not help the petitioner.

(3.) Order 18, Rule 17 of C.P.C. gives power to the Court to recall at any stage of the suit any witness who has been examined and to put such questions to him as the Court thinks fit. This is entirely different from Rule 17-A of C.P.C. which enables either party to file petition for reopening the suit and to recall any witness for adducing additional evidence including marking of additional documents. The object of introduction of Rule 17-A is to minimise the invoking of Order 41, Rule 27 of C.P.C.at the appellate stage. The decision in "T. Ramachandra vs. K. Ramamurthy and others" (supra) relied on by the Court below and the respondent herein was a case dealing with Order 18, Rule 17 of C.P.C. The petition was filed in that case under Section 151 of C.P.C and reliance was made on Order 18, Rule 17 and the attention of the Court was not drawn to Order 18, Rule 17-A. So this decision does not come in the way of the petitioner. As already seen, this Court in "Manjunadha Sarma vs. Union Bank of India" (supra) and Patna High Court in "Adalat Choudhary vs. Satan Choudhary" (supra) interpreting Rule-17A have taken the view that the parties can be allowed to file petition to reopen the suit at any stage in the interest of justice, provided sufficient cause is shown. I respectfully agree with those decisions. The petitioner is thus permitted to recall his witness and file the partnership deed by filing appropriate I. As in the Court below.