Shivratan vs Heeralal

Samvatsar, J.—This revision application is filed by the defendant.

The plaintiffs M/S Hiralal Ambalal filed a suit for recovering damages amounting to Rs. 5,000 from the petitioner (defendant) in the Court of the Civil Judge First Class, Ratlam, The suit was contested by the defendant. The trial court therefore framed issues and proceeded further. The burden of proving some of the issues lay on the plaintiffs and the burden of proving other issues lay on the defendant. The plaintiffs therefore opened their case and examined their evidence with respect to those issues, the burden of which lay on them, subject to their right to lead evidence in rebuttal.

After the plaintiffs closed their evidence, the defendant examined his witnesses and closed his case on 14th October, 1955. The plaintiffs there after started leading evidence in rebuttal.

On 21st January, 1956, the defendant applied to the Court to summon two witnesses, who it was alleged were material and had been inadvertently left out. It was alleged in the petition that the defendant has closed his case, but the plaintiff''s witnesses were still being examined and if the witnesses named in the application were summoned and examined, ends of the justice will be served.

The application was opposed by the plaintiffs and was rejected by the trial court. It is against this order that the petitioner has preferred this revision application.

Mr. R.G. Waghmare, learned counsel for the petitioner submitted that the order of the Court was contrary to the provisions of Order 16, Rule 1, Civil Procedure Code. The learned counsel went on to argue that it was incumbent on the Court to summon the witnesses and to examine them, because the defendant had applied to do so before the case was finally disposed of. The learned counsel relied on the decisions of the Calcutta High Court in Kumar Rupendra Deb Raikut Vs. Ashrumati Debi and Others

The Court had summoned the witnesses for whom the defendant had applied and had examined them. The defendant then voluntarily closed his case and his opponent began leading evidence in rebuttal. Under Order 16, Rule 1, a court is bound to issue summonses where application is made by the party before he has closed his case. That is not so here.

I do not mean to suggest, that the Court could not have allowed the prayer of the defendant to examine the witnesses at the stage at which he had applied for it. The Court can in exercise of its inherent powers and for the ends of the justice allow such prayer in a suitable case, but from this it cannot be argued, that in the instant case, the Court has acted illegally or has exercised its jurisdiction with material irregularity in refusing the prayer. In the Calcutta case of Rupendra Dev Raikut vs. Ashrumati, 53 CWN 720, there was an application made to the High Court for transferring a suit which was pending in the Court of the Subordinate Judge at Jalpaiguri. One of the grounds on which the transfer of the case was sought was that the trial court had betrayed a very great want of discretion and unusual sharpness of procedure and harshness towards the plaintiff which made it impossible that he would be able to deal with the case impartially. To make out this contention, reliance was placed on the order of the learned Judge by which he shut out the plaintiff from producing certain documents. Dealing with this aspect, the High Court observed as follows:-

As a general rule, evidence should never be shut out. Opportunity should always be given to the parties to give evidence, if the justice of the case requires it. It does not matter if the original omission to give evidence arose from negligence or carelessness. However negligent or careless may have been the first omission and however late the proposed evidence, it should be allowed if that can be done without injustice to the other side. There is no injustice if the other side can be compensated by costs. But if the other side by the production of such evidence is seriously prejudiced, which cannot be remedied, the Court shall not exercise the discretion.

The Calcutta case lays down that it is within the discretion of the Court to allow evidence to be produced even at a late stage of the case. There can be no quarrel with this proposition but if the Court refused to exercise that jurisdiction, it cannot by itself be a ground for interference in revision.

There is no force in this revision application and it is therefore dismissed with costs.