KHUDA BUX Vs. NAFIS AHMAD

JUDGEMENT

(1.) THIS petition has been directed against the order dated 19. 3. 1997 by the Civil Judge (JD), Faridabad. By this order the learned trial Court has allowed the application filed by the respondent-defendant under Order 18 Rule 17-A CPC for production of additional evidence which is in the shape of mortgage deed dated 1. 8. 1973 and sale deed dated 19. 5. 1980. Notice of this petition was issued to the respondents.

(2.) MR . Hemant Kumar, the learned counsel appearing on behalf of the petitioner inter alia has contended that the learned trial Court has itself given ft finding that documents required to be produced in evidence were very much within the knowledge of the defendant and defendant had not exercised due diligence and in view of this clear finding, the learned trial Court has gone beyond its jurisdiction in allowing the application under Order 18, Rule 17-A CPC.

(3.) AFTER hearing the learned counsel for the parties and having perused the impugned order, I am of the opinion that the impugned order dated 19. 3. 1997 passed by the learned trial Court cannot be sustained legally. As held by the Supreme Court in the case of Jaipur Development Authority v. Kailashwati Devi, J. T. 1997 (7) S. C. 643, the conditions mentioned for additional evidence must be complied with by the party who wants to produce the additional evidence. One of the condition precedent for allowing an application for additional evidence is that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not after the exercise of due diligence be produced by him. In the present case the learned trial Court has itself observed that documents sought to be produced by way of additional evidence were within the knowledge of the applicant and the applicant did not exercise due diligence but inspitc of this observation the learned trial Court has allowed the application which is contrary to the law laid down by the Apex Court in the case of Jaipur Development Authority (supra ).