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Judgment
Surinder Sarup, J.—This order will dispose of an application under Order 18, Rule 17-A, C PC read with Section 151, Code of Civil Procedure, seeking permission to lead additional evidence by producing Sh HK Gupta, the then Branch Manager of the Plaintiff-bank in order to prove the documents pertaining to the case
Briefly, the facts are that the Plaintiff applicant has filed a suit against the Defendants-Respondents for recovery of Rs. 8,97,845-30 with costs and future interest The suit was filed in the year 1983 and for one reason or Anr. has been pending since then Initially, arguments were heard for some time on 1 8-1996. 9-9-1996, 10-9 1996 and 7-11-1996. On the last date, the learned Counsel for the Plaintiff-applicant Shri Anand Sharma stated that on going through the voluminous record of the case the found that some additional evidence is necessary to be adduced on behalf of the Plaintiff. Hence the present application.
The grounds taken up in the application are that at the time of filing of the suit, Shri H. K. Gupta was the Branch Manager of the Plaintiff-bank and had signed the plaint Evidence of both the parties has been recorded and the case has been fixed for arguments. At the time of admission and denial of documents filed by the parties, the Defendants had admitted the power of Attorney filed by Shri H K Gupta, the then Branch'' Manager. Therefore, the Counsel appearing on behalf of the Plaintiff-bark had enorecusly made a statement on 18 7-1990 to the effect that Shri H. K .Gupta, PW is being given up as unnecessary and he does not want to examine him The statement was made on the premise that since the power of attorney has already been admitted and the resolution annexed with the plaint and statement of accounts are not required to be proved specifically since the authority of the Manager had already been admitted by the Defendants The exact circumstances for giving up the witness cannot be explained as the original Counsel for the Plaintiff Shri Chhabil Dass has passed away During the course of preparation of the case, it has transpired that the witness, Shri H. K Gupta was essential and necessary in order to prove the case of the Plaintiff and he bad been given up inadvertently and through mistake His statement is necessary for the adjudication and pronouncement of the judgment in this case. No prejudice would be caused to the Defendants as the case is just being heard and the arguments on behalf of the Plaintiff applicant are being addressed. Hence the present application, which is accompanied by the affidavit of Shri S. K. Palta, the present Senior Manager of the Plaintiff-bank.
In the reply filed on behalf of the Defendants, preliminary objections have been taken that the present application is highly belated one and has been filed at the stage when the case is being hearing in order to fill the lacuna and is wholly misconceived. Order 18, Rule 17-A permits production of evidence-(i) which was not previously known; or (ii) could not be produced inspire of due diligence. On merits, it has been stated that it is not mentioned in the application as to what documents are required to be proved by Shri H. K. Gupta
In the rejoinder filed by the Plaintiff-applicant, the stand taken in the application has been reiterated I have heard the learned Counsel for the parties at length and have also examined the record The issue framed in this case is as follows:
Whether Shri H K Gupta as Manager and Principal Officer of the Plaintiff bank is authorised to file the present suit on behalf of the Plaintiff-bank? OPP.
In support of his submissions, as contained in the application, the learned Counsel for the Plaintiff applicant has cited various authorities. They are Ganesh Dutt and Ors. v. Dharam Dutt and Ors. 1992 (2) Sim. L.C. 188. It has been laid down therein that Order 18, Rule 17-A is a rule of procedure which is meant to advance the cause of justice and not to thwart it. These provisions are not to be interpreted in a mariner which defeats the ends of justice. Even if it is found that a party has been negligent in not producing evidence, which is necessary for deciding the dispute, the production of such evidence may be allowed at a later stage in the interest of justice. In Punjab Kaur v. Gurcharan Singh and Ors. 1992 (2) PLR 141, it was held by the Punjab and Haryana High Court that when the case was fixed for rebuttal evidence of the Plaintiff and application for additional evidence under Order 18, Rule 17-A, CPC by Defendants was filed for comparing the thumb impressions of the Defendants on the sale deed, the main defence that the sale deed was a forged document on account of negligent conduct of the party, the evidence which goes to the root of the case cannot be scuttled.
The next authority cited by the learned Counsel for the Plaintiff-applicant is Anr. judgment of the Punjab and Haryana High Court reported as Raj Kumar v. Improvement Trust City Hansi through its Administrator etc. 1988 (2) PLR 196 It has been held therein that the provisions of Order 18, Rule 17 A, C .P .C. could not be interpreted in a mariner which defeats the cause of justice. In the given facts of that case, the parties were allowed to produce additional evidence. The learned Counsel has then relied on Shera v. Asha Ram 1987 (1) PLR 463 , which is also a decision by the Punjab and Haryana High Court. In that case also, while interpreting the provisions of Order 18, Rule 17A the Court held that party could not be allowed to suffer for any omission or lapse on the part of his Counsel and the rules of procedure are meant to advance he course of justice. The next decision cited at the Bar by Shri Anand Sharma, learned Counsel for the Plaintiff applicant is a judgment of the Delhi High Court reported as Suresh Kumar Vs. Baldev Raj, While interpreting the expression "at any stage", it was held therein that it means of any stage before judgment is pronounced and stage of the case alone should not weigh with Court to such extent as to overshadow other aspects of matter. The last authority cited on behalf of the Plaintiff-applicant is Om Parkash Vs. Sarupa and Others, In that case it was held that during examination of witness, vital questions were not put to him due to lapse of Counsel, he can be examined again when the same related to requirement of law.
On the of he hand, in support of the objections taken in the reply, the learned Counsel for the Defendants Respondents has cited a ruling of the Rajasthan High Court reported as Kanhaiya Lal Manchandiya Vs. Lalchand Baddani and Others, Therein, it was held that the expression "could not be produced" in Rule 17 A of Order 18 rules out voluntary non production and Section 151 cannot be invoked for admitting additional evidence The words ''''necessary evidence" does not attract the provisions of Rule 17-A of Order 18 or Section 151, ibid The learned Counsel for the Defendants-Respondents has also relied on an unreported decision of this Court in Civil Revision No. 257 of 1995, State Bank of India v. Fankra decided on 27-11-1996.
After hearing the learned Counsel for the parties, going through the record and analysing indepth the rulings cited by them in support of their respective contentions, I am of the considered view that in view of the plethora of judgments of this Court, Punjab and Haryana High Court and the Delhi High Court cited at the Bar on behalf of the Plaintiff-applicant, this application deserves to be allowed. The solitary ruling relied on by the learned Counsel for the Defendants-Respondents of the Rajasthan High Court does not advance his case or negative the plea of the Plaintiff-applicant. In so far as the unreported decision of this Court (R S.A. 257 of 1995), the same has no bearing at all on the facts of the present case.
In the light of the authorities cited by the learned Counsel for the Plaintiff-applicant, the legal position that emerges is that where due to mistake or ignorance of the Counsel vital evidence which was to be produced, could not be produced, the party invoking provisions of Order 18, Rule 17-A should not be penalised and non-suited by not allowing it to produce additional evidence No doubt, as vehemently argued by Shri D. K. Khanna, learned Counsel for the Defendants-Respondents that it is not a case where the Plaintiff applicant could not produce the evidence earlier despite exercise of due diligence, as contemplated under Order 18, Rule 17-A, Code of Civil Procedure, but in view of the law laid down in the rulings referred to above, interest of justice requires in the present case that said Shri H. K. Gupta should be allowed to be produced in evidence, so as to prove the case of the Plaintiff-applicant, as pleaded in the application. Moreover, since the case is at the very threshold of arguments, the Defendants-Respondents can be compensated by an order of costs.
For the reasons recorded above, this application is allowed and the Plaintiff-applicant is permitted to examine the said Shri H K. Gupta as a witness, on payment of Rs. 1,000 as costs, to be paid to the Defendants-Respondents However, in the circumstances there will be no order as to costs.