GULSHAN RAI JAUHAR Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) .This Civi! Revision Petition is so filed by the petitioner Gulshan Rai Jauhar who happened to be the defendant in Money Suit (R) No. 3/1987 so pending in the Court of Assistant District Judge, Darrang, Mangaldoi against the order dated 10.8.94 passed by the said Court in the said suit, a copy of which is filed marked as Annexure-5.

(2.) By going through the impugned order it transpires that it relates to a petition No. 1453/94 so filed by the present petitioner (defendant No. 5) in which a prayer was made as to re-examine Mr, V.G.S. Bhatnagar, a Handwriting Expert to prove the grounds so taken by the said witness as to arrive at the particular opinion. The said prayer so made by the petitioner was rejected. Hence this revision petition Under Section 115/151 CPC. A copy of the petition was filed as to prove the documents containing the reasons on which the opinion of Mr. Bhatnagar, the handwriting expert was based is marked as Annexure-4. The operative portion of the impugned order thus runs as under :- ".......Whatever that may be the defendant No. 5 would have prayed for production of the document before the settlement of issues but he has not done so. The opinion of the expert is always based on reasoning. It is not known why the opinion portion was sent by the experFkeeping the reasoning portion with him. If this reason is accepted at this stage defendants 1, 2, 3, 6 and 8 would definitely be prejudiced. In civil suits one party cannot take the other party in surprise. Uptit now the defendant No. 5 has not intimated the defendants Nos. 1, 2, 3, 6 and 8 that he intended to prove the reasoning portion of the expert alongwith the opinion. The document has been produced today all of a sudden. The contesting other party has no knowledge as to what were those reasonings. Also the question of genuineness of this document involved. The defendant No. 5 has not explained as to why-he did not make any attempt to cause that document produced ealier. The; mere fact that it was not within his power or possession cannot be considered as sufficient ground as he was not diligent in this regard as I pointed out here above. Considering all these the petition is rejected"

(3.) Challenging the impugned order detailed above Mr, A.K. Bhattacharjee, the learned Senior Counsel representing the petitioner submits that the learned Court below while passing the order under challenge has acted in the exercise of his jurisdiction illegally and with material irregularity. In the instant case it pointed out that the document in question (the reasoning part of the opinion of the handwriting expert was not within the domain of the present petitioner figuring as defendant No. 5 in the said suit and that was also one of the reasons of not producing the document prior to the settlement of the issues. It is further pointed out that there are good numbers of reported cases to show that in certain circumstances even the prayer so made by the parties for proving certain document in issues can well be allowed at the latter stage after the settlement of the issues. In support of his this contention the learned counsel or the petitioner has particularly referred to the provisions of Order 13 Rule 1 CPC and it is submitted that under the said provision the parties are expected to produce the documentary evidence of every description in their possession or power on which they intend to rely. But in the instant case the said document admittedly was not within the possession of the petitioner and was also not within his power. It is also submitted that when any such document is produced to be relied upon after the settlement of issues that too in a case when the said document was not in his possession or domain in that circumstance only the person producing such document or desiring as to rely upon such document as only to show a good cause to the satisfaction of the court for non-production of the document at an early stage and in the instant case by referring to Annexure-4 it is pointed out that good cause was shown which would have been rather accepted by the learned Court below. In support of his this contention the learned counsel for the petitioner has relied upon a reported case (T. Chiru & Ors. v. N. Kabui & Ors.). In this connection with para- graphs 15 and 16 are referred. Mr. Bhattacharyya, the learned counsel has also referred to another reported case Billa Jagan Mohan Reddi & Ors. v. Bilh Sanjeeb Reddi & Ore. and has submitted that delay in producing the documentary evidence before the settlement of issues be not taken by the courts in a rigorous way as required by Under Section 5 of the Limitation Act. In the case referred it is submitted that production of document was so prayed by the party at the hearing stage and that too was allowed. Since in the instant case as submitted the document was not in possession of the petitioner, the prayer so made vide annexure - 4 as to condone the delay and the explanation for delay would not have been taken rigorously. While deciding such issues, true it is that it is incumbent on the part of the Court as to examine whether such document was relevant to decide the real issue in controversy and when the Court felt that interest of justice requires that the document may be received, such prayer can well be allowed. In the instant case, as submitted the opinion of the handwriting expert has already been proved but unless the reasoning so given by the handwriting expert is not proved, the opinion part in itself cannot be said to be of any use and hence the necessity arose for making such prayer which was arbitrarily rejected. On the same point, Mr. Bhattacharyya has referred to Madan Copal Konodia v. M. Maniram & Ors.3 and has particularly referred to its head note 'C' paragraph 27. In the background of this reported case it is further argued that the provisions of Order 13, Rules 1 and 2 only prevent belated production document but the provisions also cloth the Court with discretion to allow production of document of the Court is satisfied that good cause is shown to the Court's satisfaction and that perusal of such document as to meet the ends of justice in the particular case was necessary, it is also at this stage submitted that after the production of such document when Mr. Bhatnagar will be re-examining the otherside in the present case will be getting ample opportunity to rebut the same and it has wrongly been held by the learned Court below that allowing such petition of the petitioner would cause great prejudice to some of the defendants. On the same point another reported case is referred Harold D. Santos v. Biswanath Goenka& Ors..