RAVINDER SINGH Vs. KIRPAL SINGH

JUDGEMENT

(1.) Plaintiff-petitioners filed a suit for declaration. During the pendency of the suit, the petitioners moved an application under Order 18, Rule 17-A of the Code of Civil Procedure for leading additional evidence. Prayer made in the application was that two sale deeds dated 30.1.1990 and 49.1.1991, the birth certificate of Joginder Singh defendant, Ration Card, statement of Bhupindpr Singh and F.I.R. No. 269, dated 1.9.1987 may be allowed to be produced and proved by way of additional evidence. Learned trial Court on a consideration of the matter and after coming to the conclusion that there is no mention in the application as to what specific evidence the plaintiff intends to produce by way of additional evidence to prove the documents rejected the prayer of the petitioners in that behalf by order dated 25.2.1993. Trial Court, however, only permitted these documents to be rendered in evidence to payment of costs. It is this order which has been challenged in this revision.

(2.) Learned counsel for the petitioners submitted that the documents sought to be produced and proved on record by way of additional evidence are very necessary to enable the court to come at a right conclusion and these documents could not be produced earlier due to inadvertence and this fact came to the knowledge of the counsel appearing for the petitioner in the trial court while preparing for the arguments. Learned counsel thus submitted that the trial Court has already permitted these documents to be tendered in evidence but has refused to accept the prayer for proving these documents in the absence of any prayer in that behalf, and, therefore, the petitioners may be afforded reasonable opportunities to prove these documents by summoning the witnesses, in the interest of justice. On the other hand, learned counsel for the respondents submitted that the documents sought to be produced by way of additional evidence were very much within the knowledge of the petitioners but they did not produce them at the time of leading their evidence and therefore, the same cannot now be permitted to be produced and proved especially when the case is at the arguments stage. Learned counsel in support of his submission relied upon a judgment of this Court in Lakhbir Singh and Ors. v. Kasar Singh and Ors., 1984 C.L.J. (C & Cr) 599.

(3.) After hearing learned counsel for the parties and having regard to the facts and circumstances of this case, I am of the opinion that the contention of learned counsel for the petitioners has merit. In view of the provisions of Rule 17-A of Order 18 of the Code of Civil Procedure, additional evidence can be allowed, primarily having regard to two principles, namely, such evidence was not previously known to the party seeking to produce it by way of additional evidence or such evidence could not be produced despite due diligence. Once a party is able to satisfy the court on either of two principles, the additional evidence is normally permitted to be produced. In the present case the petitioners have categorically averred that though the documents, now sought to be produced and proved by way of additional evidence were within their knowledge but these could not be produced earlier despite due diligence and this fact came to the notice of their counsel only at the time of preparing for the arguments. The documents sought to be produced and proved by way of additional evidence are stated to be important for the just and right decision of the controversy raised in the suit. These documents arc nothing but copies of sale deeds, F.I.R. and a birth certificate etc. and there is hardly any possibility of such documents being fabricated. The trial Court has already permitted these documents to be tendered in evidence but refused to permit the petitioner to prove them only on the ground that the petitioners did not make prayer in the application in that behalf. I have perused the application of the petitioners for leading additional evidence and find that there is a specific mention in the application that production and proof of the above said documents are most essential and necessary to arrive at a right conclusion. Such a relief cannot be refused simply on account of an omission on the part of the petitioners to indicate in the application itself as to whom they intend to summon in order to prove the documents. Once there was a specific prayer in the application that the above documents may be permitted to be produced and proved by way of additional evidence and the trial Court has come to the conclusion that production of such documents by way of additional evidence was necessary for the just decision of the suit, the relief regarding proof thereof could not be declined on a technical ground as noticed above. It deserves to be noticed that one of the documents, namely sale deed dated 30.1.1990 has already been produced on record and has been exhibited as Exhibit D.1. In that view of the matter, this revision is allowed and that part of the impugned order is set aside whereby the trial Court has not permitted the petitioners to prove the documents which have been allowed to be produced by way of additional evidence. The petitioners are now permitted to produce witnesses to prove the documents which have already been permitted by the trial Court to be tendered in evidence. The trial Court is directed to afford only two effective opportunities to the petitioners to prove these documents, at shorts intervals. The petitioners shall, however, produce the witnesses to prove the documents by way of additional evidence at their own risk and responsibility and subject to payment of Rs. 500/- as costs. Parties through their counsel are directed to appear before the trial Court on 12.10.1998 for further proceedings. The trial court shall now dispose of the suit at a very early date.