Kuldeep Singh Basan vs Surjit Kaur

V.S. Aggarwal, J.—By this common judgment two Civil Revision Petitions bearing No. 3046 and 3047 of 1998 directed against the two identical orders passed by the learned Civil Judge (Junior Division), Phagwara, dated 25.5.1998 can conveniently by disposed of together. The learned Civil Judge, Phagwara, dismissed the application filed by the petitioner under Order 18 Rule 17-A of the Code of Civil Procedure.

The relevant facts are that Kuldeep Singh petitioner had filed a suit for declaration that he is the exclusive owner of the land in question and the power of attorney bearing No. 613 dated 27.9.1991 is forged and fabricated document. It was forged by Nirmal Singh for and on behalf of Smt. Dhan Kaur. The subsequent sale deed executed by Nirmal Singh as attorney of Smt. Dhan Kaur is, therefore, null and void. Besides that, permanent injunction has also been claimed.

During the pendency of the suit, petitioner submitted an application under Order 18 Rule 17-A of the CPC (for short "the code"). It was asserted that Nirmal Singh had forged and fabricated the power of attorney. Such power of attorney is in possession of the respondents. The power of attorney did not bear the thumb-impressions of Smt. Dhan Kaur. The petitioner wanted the permission to get thumb-impressions of Smt. Dhan Kaur on the alleged power of attorney compared with the admitted thumb-impressions on her passport.

The application was opposed. It was pointed out that the evidence of the respondents had been closed by order of the Court. It was for the petitioner to prove the power of attorney. The thumb-impressions on the passport are not authentic. There was no due diligence on the part of petitioner.

The learned trial Court on appraisal of the same held that the petitioner has been totally negligent. He did not exercise due diligence. There is no ground thus to allow the application. Accordingly, it was dismissed. Aggrieved by the same, the present revision petition has been filed.

Order 18 Rule 17-A of the CPC reads as under: -

"17-A. Production of evidence not previously known or which could not be produced despite due diligence - Where a party satisfies the Court that, after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just."

A perusal of the same shows that, firstly, the party must satisfy the Court that after exercising due diligence some evidence was not within his knowledge and, secondly, he could not produce the said evidence with due diligence when the said party was leading the evidence. Coupled with the same is the interest of justice. But the same has to be viewed in the light of the fact as to whether the application is genuine and filed with the sole object to decide the rights of the parties or not?

As referred to above the re-mentioned at the risk of repetition, the petitioner has filed a civil suit in 1994 specifically alleging that the power of attorney purporting to be of Smt. Dhan Kaur is a forged and fabricated document. The petitioner, therefore, was alive to the nature of the controversy. Smt. Dhan Kaur is the mother of the petitioner. The petitioner, therefore, was conscious as to what evidence should be produced. It is not his case that he was not aware that there is a passport of Dhan Kaur and thumb-impressions of Dhan Kaur could be compared with the thumb-impressions on the power of attorney. He did not produce such evidence at the relevant time. Thereafter, the evidence of the respondents was closed. It is, therefore, too late in the day now for the petitioner to allege that permission should be granted to compare the thumb-impressions. There has to be due diligence on the part of the person concerned rather than total negligence. When a party consciously proceeds with the case and does not produce the evidence which he could have produced, then it is improper to invoke the provisions of Order 18 Rule 17-A of the Code later on. The plain language of the said provision does not come to the rescue of the petitioner. In addition, the interest of justice in the present case would also not support the petitioner. At the proper time the petitioner did not produce the relevant evidence which was to his knowledge. In the peculiar facts, therefore, there is no ground to interfere in the impugned order.

For these reasons, both the revision petitions must fail and are accordingly dismissed.