Charan Singh vs Ajit Singh etc.

Swatanter Kumar, J.—In an occurrence on 22nd October, 1993, the plaintiff alleges to have suffered injuries in his leg. Consequently, he filed a suit for damages to the extent of Rs. 1 lac against the defendants. During the pendency of the suit, the evidence of the parties was closed on 31st August, 1998. Thereafter an application under Order 18 Rule 17-A of the CPC was filed by the plaintiff alleging that because of bonafide mistake and inadvertence on the part of the counsel for the plaintiff, two material witnesses could not be examined and prayer was made for summoning the said witnesses by way of leading additional evidence. This application was opposed by the non-applicants-defendants, who averred that the plaintiff is trying to fill up a lacuna in his case at this stage. Learned trial Court, vide its order dated 26th October, 1998 allowed the application subject to payment of Rs. 300/- as costs, giving rise to the present revision petition filed by the defendant (petitioner herein).

Learned counsel appearing for the petitioner relied upon the case of Daya Kaur v. Risala, (1996-1)112 P.L.R. 168 and Madan Aggarwal v. Smt. Mansa Devi and Ors., (1985-2)88 P.L.R. 206 to argue that firstly the application ought to have been dismissed because it does not satisfy the basic ingredients of Order 18 Rule 17-A C.P.C. and secondly that once arguments have been heard, the application for additional evidence does not lie.

Firstly, I would deal with the second contention raised on behalf of the petitioner. It cannot be said as a proposition of law that once the arguments in a case have been heard, the Court is functus officio to interfere in an application for additional evidence. This contention of the learned counsel for the petitioner, in fact, need not detain me any further because this question was discussed and dealt with in some length by this Court in the case of Chandgi v. Mehar Chand and Ors., (1998-1)118 P.LR. 867 wherein the Court held as under:-

"The judgment is a recognised stage of proceedings in a suit. The legal connotation of judgment is the declaration of final determination of rights of the parties in the matter before the Court. Even in common parlance the expression ''judgment'' is understood to put an end at least at some stage to the lis between the parties. Hearing of a suit would have to be understood in the context, where the Court fixes a date for some acts to be done by either parties, while the stage or a later stage of a suit would be a stage till the pronouncement of judgment when the Court is functus officio of the case before it. No hearing is contemplated under the provisions of the Code between the stage of hearing and reserving the case for order and pronouncement of judgment, but still these two are the independent stages of the proceedings in a suit and hence the party would have a right to file an application for leading additional evidence prior to the pronouncement of the judgment under the provisions of Order 18, Rule 17-A of the Code."

In other words, if the expression hearing of suit and stage of suit are treated to be synonymous then the necessary result is that either of the expression used by the legislature is redundant, ineffective and unmeaningful. As observed by Hon''ble the Chief Justice Patanjali Shasty in the case of Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, , it is not a sound principle of construction to brush aside word in a statute as being inapposite surplusage, if they can have appropriate application on circumstances conceivably within the contemplation of the statute.

On the application of the well settled principles of law governing the subject, I find it very difficult to hold that the judgment is not a recognised stage of the proceedings in a suit. Section 2(a) of the Code defines the judgment as statement given by the judge of the grounds of decree and order. The legal connotation of judgment is the declaration or final determination of rights of the parties in the matter before the Court. Even in common parlance the expression ''judgment'' is understood to put an end at least at some stage to the lis between the parties Hearing of a suit would have to be understood in the context, where the Court fixes a date for some acts to be done by either parties, while the stage or a later stage of a suit would be a stage till the pronouncement of judgment when the Court is functus officio of the case before it."

Coming to the merit of this application, certainly there is some element of negligence on the part of the applicant, but that by itself may not be sufficient ground to debar the applicant from proving his case, as pleaded. The leg of the applicant has been amputated as a result of the occurrence. The applicant wish to produce a doctor and the eye witness, which were not examined earlier. The court has to keep in mind the fact that illiterate villagers heavily rely upon the counsel they engage and believe that all necessary to pursue and prove their case would be done by their counsel. If there is a bonafide mistake on the part of the counsel, the parties should normally not be vested with such serious consequences unless the application is malafide and is intended to abuse the process of law. I am unable to find that the present application is not a bonafide one or it amounts to abuse of process of law.

At this stage, I would like to refer to the judgment of this Court rendered in the case of Banwari Vs. Nagina, . The relevant part of the judgment runs as under:-

"6. The concept of additional evidence has been given wider dimension in the recent judgment of Hon''ble Apex Court in Jaipur Development Authority v. Smt. Kailwashwati Devi (1997)117 P.L.R. 880 (S.C.), where the Court held that additional evidence could be allowed even at the Appellate stage under Rule 27 (aa) of the Order 41 CPC if the applicant satisfies the basic requirements of the rule and even no evidence has been led by the applicant at the trial stage. In that case ex parte decree was passed against the defendant in the suit, the appeal was preferred before the High Court and two documents were sought to be filed which were in possession of the defendant relating to possession of the suit property. High Court rejected the said prayer, but the same was allowed by Hon''ble Apex Court.

The cumulative effect of the above well enunciated provisions governing the subject is that the Court has to exercise its jurisdiction to derive balance between ends of justice and extent of default of the applicant. The powers given to the Court under sub rule 4 of rule 2 of order 18 cannot be curtailed by reading the provisions of rule 17-A of the same order. Both these provisions must be read and construed harmoniously so as to further cause of justice and necessary for effective and complete adjudication of rival contentions raised by the parties in a suit or proceedings. The procedural law must be moulded to farther cause of justice rather than frustrate the same. Non production of documents after exercise of due diligence appears to be very foundation for filing such an application. Compliance of this condition must be seen in context to the facts and circumstances of the case and in conformity with the record before the Court. Exercise of due diligence would have to give wider and meaningful connotation which must be in conformity with the basic rule of law. In some cases negligence of a party or counsel may not really have the effect of rendering such an application untenable. This view finds support from the case of Jaipur Development Authority (supra)."

The citation relied upon by the counsel for the petitioner are different on facts. In case of Daya Kaur (supra) the applicant''s plea was based on fraud and he had failed to lead any evidence on fraud. In those circumstances, the learned judge came to the conclusion that the application for additional evidence did not satisfy the ingredients of Order 18 Rule 17-A of C.P.C. I am afraid, the said judgment does not help the petitioner on facts of the case.

Resultantly, I am unable to see any error of jurisdiction or otherwise in the impugned order and would decline to interfere in this revision petition. However, the costs imposed by the learned trial Court are inadequate and they need to be enhanced. Consequently, while modifying the order of the learned trial Court only to the extent that the applicant-plaintiff would be liable to pay Rs. 1,000/- as costs against Rs. 300/- imposed by the learned trial Court.

The petition is accordingly disposed of. However, there shall be no order as to costs.