BANWARI Vs. NAGINA

JUDGEMENT

(1.) WHILE impugning the order dated 16.9.1997 in this revision, the contention of the learned counsel for the petitioner is that the trial Court has failed to exercise the jurisdiction vested in it, which is apparent on the face of record. Consequently, the order is liable to be set aside.

(2.) VIDE order dated 16.9.1997, the learned trial Court had declined leave to the plaintiff/petitioner to lead additional evidence. In order to appreciate the respective contentions raised an behalf of the parties before me, it will be appropriate to refer to the bare minimum facts necessary for decision of this petition.

(3.) THE facts which are evident from the above allegations which clearly appeared on record are that the case was fixed for leading of rebuttal evidence by the plaintiff and the records of the suit were summoned subsequently during the evidence of the defendant and the defendant while filing an application for examination of an experts ultimately he failed to examine the handwriting expert and that the Court in its order sheet dated 31.3.1993 had made certain observation in regard to superimposition of thumb impressions. It is the settled principle of law that additional evidence can be permitted to the parry if the party permitting such relief had failed to lead the evidence at the earlier stage after exercising due diligence and there was sufficient cause for granting such permission, Primary distinction is between not to able to produce in spite of due diligence and waiver to lead evidence. Waiver is an intentional act or an act which can be reasonably construed from the record that the party intentionally failed to lead evidence which it ought to have. There is also no doubt to the fact that Order 18 Rule 2 CPC has to be read in conjunction with the provisions of Order 18 rule 17A CPC. The legislative intends behind these two rules is that the party must lead evidence on all the issues onus of which is on him on the date fixed by the Court. Sub-rule 4 of Rule 2 of Order 18 still gave powers to the Court to permit a party to examine any witness at any stage for the reasons to be recorded in writing. This rule was introduced by amendment to the Code of Civil Procedure in the year 1976 as well as Rule 17A was also introduced by the same amendment. These amendments are obviously intended to give wider discretion to the Court for permitting additional evidence at any stage of the suit. Discretion must and has to be exercised on settled principles of law, the basic need being complete and effective adjudication between the parties in regard to the subject matter of the suit without offending any provision of the Code and causing undue advantages to the applicant over the non-applicant. Earlier to the amendment rule 17 of Order 18 gave jurisdiction to the Court to recall the witness already examined but addition of these two provisions by way of amendment can no way be interpreted so as to give no benefit to the applicant if the facts and circumstances of a case and ends of justice so demand.