SHASHI SHEKHAR GUPTA Vs. BIBHUTI BHUSHAN JHA

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and learned counsel for opposite party no. 1 who is the only contesting opposite party so far as the present revision application is concerned since his petition dated 24.11.2003 has been allowed by the impugned order dated 18.6.2007 which has been challenged by the plaintiff -petitioner in this revision.

(2.) THE aforesaid title suit was filed originally as a suit for eviction but on defence having been taken by the defendants that they had acquired title over the property by way of an oral gift and the subsequent Yaddast executed on 16.2.1964 and alternatively, having acquired title by adverse possession the same was converted into a regular title suit on 7.3.1989. Subsequently, the evidence was led by the plaintiffs and defendants and on 22.9.2003 the evidence of the defendants was closed and on the prayer made by the defendants and their learned counsel in the court below the matter was fixed for hearing by the order on the said date. On 24.11.2003 a petition was filed on behalf of the defendants praying for recall of two witnesses, namely, defendant nos. 5 and 6 in order to prove certain documents whose original or photocopy had been filed earlier but they have not been proved in the proper manner in accordance with law. The said petition has been allowed by the impugned order dated 18.6.2007. Challenging the same the petitioner has filed the present revision application. Learned counsel for the petitioner submits that a consent order cannot be reviewed or recalled and the order dated 22.9.2003 being in the nature of a consent order, hence the Court below had no jurisdiction to pass the impugned order dated 18.6.2007 for reopening the evidence of the defendants. It is further submitted by the learned counsel that the suit being of the year 1975 has been dragged on indefinitely for nearly 32 years and the petition itself has been filed mala fide for the purpose of delaying the conclusion of the trial of the suit. It is thus, submitted that by virtue of provisions of Section 151 of the Code of Civil Procedure, the said petition being an abuse of the process of Court, the court below ought not to have allowed the said petition.

(3.) IN support of the aforesaid propositions learned counsel for the petitioner relies upon a decision of the Supreme Court in the case of Salem Advocates Bar Association, Tamil Nadu vs. Union of India: AIR 2005 Supreme Court 3353 [: 2005(4) PLJR (SC) 270], in para -14 of which it has been held as follows: - "In Salem Advocates Bar Association 'scase, it has been clarified that on deletion of Order XVIII Rule 17 -A which provided for leading of additional evidence, the law existing before the -introduction of the amendment i.e. 1st, July, 2002, would stand restored. The Rule was deleted by Amendment Act of 2002. Even before insertion of Order XVIII Rule 17 -A, the Court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order XVIII Rule 17 -A did not create any new right but only clarified the position. Therefore, deletion of Order XVIII Rule 17 -A does not disentitle production of evidence at a later stage. On a party satisfying the Court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the Court may permit leading of such evidence at a later stage on such terms as may appear to be just."