Krishna Devi vs Darshan Kumar

J.P. Singh, J.—Smt. Krishna Devi, petitioner, had filed a suit against Darshan Kumar, respondent, seeking inter alia his ejectment from a

shop situated at main Bazar Basholi.

She had pleaded that she reasonably required the suit shop for its occupation by Mrs. Sushma, her unemployed daughter-in-law, who wanted

to run a Readymade Garment/Cosmetic, Store in the shop.

She, while leading her evidence, however, did not produce Sushma, as her witness, and it was after the closure of the evidence of the parties

that she requested the trial Court to permit her to produce Sushma, who according to her was an important witness, for the just decision of the

case.

Learned Munsiff, Basohli, has dismissed her application vide order dated 12-08-2006, aggrieved whereby, she has come to this Court seeking

permission to produce Sushma as her witness, and resultantly setting aside of Learned Munsiff's Order.

I have considered the submissions made at the Bar.

Going by literal construction and strict application of the provisions of Order 18 Rule 17(A) of the Code of Civil Procedure, the impugned order

may not warrant any interference; But has such literal construction of the processual provision, by the trial Court, advanced or impeded, the cause

of justice--is the moot question that falls for consideration in this revision petition.

The language employed by the draftsman of processual law may be liberal or stringent, but the object of prescribing such procedure for the

decision of a lis by a Court of law, is necessarily to advance the cause of justice.

The humanist rule that procedure should be the handmaid, and not the mistress, of legal justice vests a residuary power in judges to act ex

debito justitiae where the tragic sequel otherwise may be wholly inequitable. It is precisely for this reason that even the Code of Civil Procedure, in

its Section 151 of the Code of Civil Procedure, retains this power of a Court while deciding a case.

It is well settled proposition of law that procedure prescribed for deciding a lis, may not be interpreted in such a fashion that it deprives the

seeker of justice, of justice, only because it has either remained somewhat indolent in prosecuting its remedy or had been misled by one or the

other factors disabling him/her from complying with the procedural requirement(s) in placing appropriately his cause before the Court.

The Court while dealing with the lis has, therefore, to be alive to the damage to which an indolent litigant, may be put to, in case of strict

application of a procedural provision, and every attempt is required to be made to ensure that litigant's indolence or his bonafide inaction in

complying with the requirements of a procedural statute, does not come in his way in placing requisite material before the Court which may

advance the cause of justice, provided, however, that his adversary is suitably compensated, on such terms as the Court may consider fit and

proper in the facts and circumstances of the case, so to do.

One cannot loose sight of the stark reality that litigants invariably go by the advice of their legal advisors in deciding as to what type of evidence

was required to be led in a particular case. Lack of requisite experience in the field and various other factors which may deprive the legal advisors

practicing in remote rural areas to remain abrest with the latest law on the subject, at times, contributes to such lapses, which appear to have

happened in this case too when the petitioner does not appear to have been advised to examine her daughter-in-law as a witness in the case for

whose settlement she had filed the suit to get back the possession of the shop where she had proposed to start her Readymade

Garment/Cosmetic, Store to earn her living.

While deciding as to whether or not the projected necessity of the petitioner for the occupation of the shop for its use by her daughter-in-law

to start business therein, is reasonable and genuine, the statement of Mrs. Sushma, looked from any angle, will certainly help the Court in arriving at

a just decision about the proposed necessity of the petitioner, for it is only Sushma who may depose about her resolve, capacity and urgent need

pleaded by the petitioner in the suit.

Absence of Sushma's statement may thus come in the way of the Court in arriving at the truth or otherwise of the proposed need of the

petitioner.

While declining petitioner's application seeking production of Sushma as her witness in the case, learned Munsiff, Basohli, had looked at the

application and petitioner's request from a purely technical angle in the light of the provisions of Order 18 Rule 17(A) of the Code of Civil

Procedure. It had, however, omitted to take into consideration the relevance or otherwise of Sushma's evidence for the just decision of the case.

While operating the provisions of Order 18 Rule 17(A) of the Code of Civil Procedure, a Court seized of a lis has not to be oblivious of its

dominant duty to decide the real controversy between the parties with a view to deliver complete justice. Strict application of the provisions of

Order 18 Rule 17(A) of the Code of Civil Procedure, which may come in the way of affording sufficient opportunity to the parties to project their

view point before the Court may not thus be warranted. This provision, therefore, is required to be interpreted liberally leaving space for those

cases where judicial conscience may require providing opportunity to the defaulting party to lead additional evidence in the case. This is so because

a litigant may be permitted to lead evidence if production of such evidence was found essential for just decision of the case, even at the appellate

stage.

Although the petitioner had assigned Sushma's sickness as the reason for her non-production, and even if such reason had not been found to

be convincing, the trial Court was required to consider the relevancy or otherwise of the statement of Sushma for the just decision of the case.

Learned Munsiff, Basohli, however, has not adverted towards this aspect of the case thereby debarring the petitioner of her inbuilt natural right to

project her case properly and to her satisfaction before the Court to receive justice.

The course adopted by learned Munsiff in declining petitioner's application, in my opinion, has thus resulted in failure of justice.

Allowing one opportunity to the petitioner to produce Sushma, as a witness in the case, would not have placed the respondent in any such

position which may be detrimental to his defence in the suit. The delay which may in the process of recording the statement of Sushma, and

providing another opportunity to the respondent to lead any further evidence which he may like to lead so as to rebut the statement of Sushma,

could well be compensated by costs.

For all what has been said above, the impugned order cannot be justified and is liable to be set aside. Accordingly, setting aside the impugned

order and allowing petitioner's application, I would grant one opportunity to the ""petitioner to produce Sushma in the Court for her statement,

subject, however, to the payment of Rs. 3000/- as costs to the respondent, whereafter the trial Court may permit him too another opportunity to

lead any further evidence in the case, if he chooses so to do.

Parties are directed to appear before the trial Court on 20th of December, 2007 when the trial Court shall fix a date for recording the

statement of Mrs. Sushma.This revision petition is, accordingly, allowed.