Sh. Madan Mohan Aggarwal vs Smt. Mansadevi and others

G.C. Mital, J.—After hearing the counsel for the parties, I am of the view that this revision deserves to succeed.

The first point to be determined would be whether on the facts of this case, this Court has jurisdiction u/s 115 of the CPC (hereinafter called the Code), to interfere in the order passed by the Court below allowing additional evidence. In this regard, my attention has been invited by the learned counsel for the plaintiff-respondent to D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, A reading of this judgment shows that this Court will have no jurisdiction to correct a error of fact or law but when it is found that the Court below exceeded its jurisdiction in passing the impugned order or did not follow the procedure laid down by the Code, then this Court will have jurisdiction to interfere with the order of the Court below. Therefore, it will have to be found out whether, on the facts of this case, the order of the Court below can either be held to be in excess of jurisdiction or against the procedural law.

The plaintiff Trust filed a suit on 6th of June, 1979, for eviction of the defendant-tenants before the civil Court and pleaded that since the building was constructed after 1973, therefore, the same was exempt from the operation of the Rent Control Act for a period of ten years and as such the civil suit was competent to evict the defendants. The issues were framed on 15th September, 1979, and the crucial issue was whether the building was constructed after 1973. The plaintiff closed its evidence on 21st November, 1980, and the defendants closed their evidence on 17th January, 1981, and the case was posted for arguments. Before the arguments could be heard, the plaintiff filed an application on 16th February, 1981, for producing additional evidence. The application was allowed on 27th February, 1981, and the plaintiff was permitted to produce additional evidence which was produced. Thereafter, the case was fixed for arguments on 2nd April, 1985, and arguments were heard and the case was posted for pronouncement of judgment on 6th April, 1981. Before the judgment could be pronounced, the plaintiff filed yet another application for producing further additional evidence. It deserves to be specifically mentioned that the application was filed after the arguments were heard. The application was strongly opposed by the defendants but by order dated 16th July, 1981, the trial Court allowed the same. Against the aforesaid order, defendant No. 1 has come to this Court in the present revision.

The scope of Order XX rule 1 of the Code was considered by the Supreme Court in Arjun Singh Vs. Mohindra Kumar and Others, and it was ruled as follows:--

When once the hearing starts, the Code contemplates only two stage in the trial of the suit; (1) where the hearing is adjourned or (2) where the hearing is completed. Where hearing is completed the parties have no further rights or privilege in the matter and it is only for the convenience of the Court that O.XX, R.1 permits judgment to be delivered after an interval after the hearing is completed.

The present application has been filed under Order XVIII, rule 17A-A of the Code as inserted by the amendment of 1976. Before rule 17-A was added, under rule 17 a witness could be re-called for being examined and under this rule a case came up for consideration before the Andhra Pradesh High Court in R. P. Kapur Vs. Pratap Singh Kairon and Others, wherein it was held that the stage of the suit would come to an end by hearing of arguments and after it is posted for pronouncement of judgment, before judgment is announced no opportunity can be allowed for leading additional evidence. Under the added rule 17-A, power has been given to the trial Court to permit a party to lead additional evidence even at a later stage of the suit but the final stage of the suit would conclude on hearing of arguments and thereafter no stage would be left with the trial Court to permit a party to lead additional evidence. The later stage would include the last stage as well which would be before the arguments are heard and before the judgment is reversed. Therefore, I am of the view that the trial Court did not follow the correct procedure in permitting the plaintiff-respondent to lead additional evidence after the arguments were concluded and since this error of procedure was committed, this Court has the jurisdiction to correct the error of the Court below.

A reading of the application filed for leading additional evidence shows that it was sought to be a roving enquiry in which the plaintiff wanted to delye and lead evidence by producing officials from the banks municipal committee, neighbours where the shop was treated and other persons who could support the case of the plaintiff. All these things were very well within the knowledge of the plaintiff and in fact it has produced one witness from the bank and another from the municipal committee and whatever it wanted to elicit from them has been elicited in the case. To allow such an application would be going beyond the scope of additional evidence because a party must satisfy the Court that in spite of due diligence the evidence was not within its knowledge and if the case does not fall within the first clause of rule 17-A the later clause it will have to show as to why the evidence could not be produced earlier. The only argument raised before me for filing the application for additional evidence is that the plaintiff is a trust and there was some negligence on the part of the trustees. The three trustees have already appeared as witnesses and now the ground sought to be made for additional evidence is that the remaining two trustees want to lead additional evidence. I am not satisfied that on these facts the trial Court would have jurisdiction to permit additional evidence to be led. Before section 17-A was added, there was no definite provision as to in what circumstances additional evidence could be allowed to be led by the trial Court and the additional evidence was generally allowed in exercise of the inherent jurisdiction of the Court because even rule 17 does not talk of allowing additional evidence at a subsequent stage and merely makes a mention that a witness may be recalled. Precisely for this reason, a specific provision was enacted in rule 17-A in order to limit the jurisdiction of the trial court within the four-corners of the new provision. I am of the view that on the facts of this case the Court below had no jurisdiction to permit addititional evidence to be led which would amount to starting a fresh trial of the suit. Moreover, a reading of the impugned order shows that no ground is mentioned as why the permission to lead additional evidence has been granted. It has merely referred to a decision of this Court in Balwant Singh v. Krishan Kumar 1978 (2) R.L.R. 611, in coming to the conclusion that additional evidence should be allowed if it is necessary for the proper and final decision of the case, however negligent the party may be in leading the evidence at the appropriate time. On a reading of that judgment, I find that permission to lead additional evidence was not granted after arguments were heard nor a roving type of additional evidence was sought to be produced. That was a decision on its own peculier facts. No hard and fast rule can be laid down as an abstract proposition of law that in every case additional evidence can be laid allowed to be produced even if the concerned party is guilty of negligence. In the present case, it was the second application for permission to produce additional evidence. Then a third opportunity can also be claimed for the same purpose and so on and in this manner the trial may never come to an end. In each case it will have to be seen whether it is a fit one for granting permission in the ends of justice. Hence, I hold that the trial Court exceeded jurisdiction in passing the impugned order.

For the reasons recorded above, this revision is allowed, the order of the Court below dated 16th July, 1981, is set aside and the matter is sent back to the trial Court to pronounce judgment as the arguments have already been heard, unless the trial Court considers it necessary to hear arguments again because the same were heard about six months ago. The petitioner shall be entitled to costs of these procedings which are assessed at Rs. 100/-.