Central Bank of India vs Rama Granites

C. Nagappan, J.—The petitioner has sought for setting aside the Order dated 16.7.2004 made in LA. No. 30 of 2004 in O.S. No. 19 of

2004 on the file of I Additional District Judge, Krishnagiri. The revision petitioner is the plaintiff in the suit.

The petitioner herein has filed the suit for recovery of a sum of Rs.7,40,628 with subsequent interest from the respondent/defendant and it filed

an Interlocutory Application in I.A. No. 30 of 2004 u/s 151, C.P.C. to reopen the suit and permit the petitioner/plaintiff to examine one Vijaya

Kumar, Former Manager, as witness on its side and that application was opposed and the trial Court dismissed the application and challenging the

same, the present revision is preferred.

Heard the learned counsel for the petitioner as well as the respondent.

The trial Court has dismissed the application on two grounds. The first ground is that on deletion of Order 18, Rule 11-A, C.P.C, which

provided for leading of additional evidence, the party cannot lead additional evidence. The other ground is that the petitioner has not shown that the

additional evidence was not within its knowledge or could not be produced at the time when it led the evidence in the trial.

In so far as the first ground is concerned, the impugned order cannot be sustained on that ground in view of the decision of the Supreme Court

in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), , wherein, Their Lordships have laid down that deletion of Order 18,

Rule 17-A, C.P.C. does not disentitle production of evidence at a later stage, but, the party must satisfy the Court that the evidence, which is

sought to be produced, was not within his knowledge or could not be produced at the time when he led the evidence. For better appreciation, the

relevant paragraph is extracted below:

In Salem Advocate Bar Association Vs. Union of India (UOI), , it has been clarified that on deletion of Order 18, Rule 17-A, which provided

for leading of additional evidence, the law existing before the introduction of the amendment i.e. 1.7.2002, would stand restored. The Rule was

deleted by Amendment Act of 2002. Even before insertion of Order 18, 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 18, Rule 17-A, did not create any new right

but only clarified the position. Therefore, deletion of Order 18, 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.

We have to see as to whether the impugned Order can be sustained on the second ground stated by the trial Court. The respondent herein/

defendant, in its written statement, has denied the execution of documents Exs.A-3 and A-4. The petitioner herein/plaintiff while adducing evidence

and examined its Manager and marked those documents and evidence on both sides was closed and when the case was posted for arguments, the

petitioner herein/plaintiff has chosen to file the Interlocutory Application. The petitioner in the affidavit filed in support of the application has stated

that since the respondent/defendant had denied the genuineness of the documents, in order to prove the claims, by way of abundant caution, it has

been advised to prove those documents through the then Manager of the plaintiff Bank by name Vijaya Kumar, who was present at the time of

execution of the documents by the defendant. The respondent/defendant, in the counter affidavit, has stated that he denied the execution of the

documents and the petitioner/plaintiff, while examining witnesses on its side, had ample opportunity to examine the necessary witnesses and it has

not chosen to examine the alleged person by name Vijaya Kumar and there is no valid reason mentioned in the affidavit for non-examination of the

said witness and therefore, there is no merit in the Interlocutory Application.

The law is well settled that the Court has inherent power to permit the parties to produce evidence at a later stage but it is subject to satisfying

the Court that such evidence was not known to them earlier or could not be produced inspite of due diligence. In the present case, it cannot be

said that the evidence was not within the knowledge of the petitioner/plaintiff or could not be produced even after exercise of due diligence. The

dismissal of the application on this ground is sustainable and the impugned order does not call for any interference.