MAJOR NARPAT SINGH Vs. CHAGAN KANWAR AND OTHERS

JUDGEMENT

(1.) This petition has been filed against the order dated 3.10.2015 passed by the Additional District Judge No.2, Jaipur Metropolitan, Jaipur dismissing the petitioner - defendant's (hereinafter referred as defendant) application for leading further evidence by way of an additional affidavit.

(2.) The facts of the case are that in a suit for partition laid by the respondent- plaintiff (hereinafter plaintiff), written statement was filed and issues framed. Subsequent to the evidence of the plaintiff, the defendant having filed affidavit in evidence was being cross-examined. At this stage on 31.7.2015, the defendant filed an application for leading further evidence by way of additional affidavit in evidence stating that certain documents in original/certified copy already filed before the Court but having mistaken to have been lost, were not included in the original affidavit in evidence and therefore an additional affidavit to exhibit such documents already on record of the court in defence evidence be allowed. The said application has been dismissed by the impugned order. Hence this petition.

(3.) Counsel for the defendant submitted that in the facts obtaining, more particularly that the documents sought to be exhibited by way of additional evidence are already on record of the court having been earlier filed, it was in the interest of justice for the trial court to have allowed the application in issue as no prejudice would conceivably be caused to the plaintiff respondents. The defendant admittedly was being at the relevant time cross-examined and so could have been on the additional affidavit as evidence and qua the exhibits marked thereon. He submitted that it was not a case where documents sought to be marked exhibits were of suspect as to their genuineness because they had already earlier been filed before the trial Court, but forgotten but then espied accidentally. Counsel submitted that procedure under CPC is a handmaid of justice. There is neither any statutory prohibition nor any precedent where additional affidavit in the circumstances obtaining could not have been filed or taken on record. In the circumstances, the trial court ought to have invoked its powers under Section 151 CPC in allowing the application to file an additional affidavit -in evidence to mark the documents with the court as exhibits in the course of defence in the suit. It is submitted that in the facts obtaining the impugned order thus vitiated by the failure of the trial court to exercise jurisdiction vested in it and for the reason that if the impugned order is not set aside it would cause manifest injustice to the defendant. Reliance has been placed on Rameshwar and ors. v. Om Prakash and ors., 2015 (3) Civil Court cases 711 (P and H).