T.M. Natarajan vs Subbaraya Mudaliar and Another

Sathiadev, J.—These two revisions are filed against the orders passed in I.A. Nos. 198 and 199 of 1987 in O.S. No. 81 of 1983 on the file

of Sub-Court Tiruvannamalai. By invoking Section 151, and without even referring to C.P.C.I.A. No. 198 of 1987 was filed to re-open the

hearing of the suit, in which defendant''s side had started rendering evidence. I.A. No. 199 of 1987 was filed under Order 16, Rule 10(2) without

even referring to C.P.C. to issue summons to one Kuppusamy Gounder, Proprietor, V.K.S. Commission Mundy for production of bill books,

account books, receipt books, etc. On trial Court dismissing both these petitions, these two revision petitions are preferred.

On the revision petitions being taken up for hearing, Mr. R.S. Venkatachari, learned Counsel for defendants-respondents (ranking of parties as

in trial Court) raised a preliminary objection that these two revision petitions are not maintainable, because they are not cases decided within the

meaning of Section 115, C.P.C. To sustain this contention, he relied upon the following decisions.

In Setho Das and Another Vs. Paro Devi and Others, it was held that refusal of permission to reserve right to let in rebuttal evidence is not a

''case derided'', and is not open to revision, relying upon the decisions in Major S.S. Khanna Vs. Brig. F.J. Dillon, and Ramgulam Choudhary and

Others Vs. Nawin Choudhary and Others, . It is contended that, the instant matter is one in which an attempt is made to get over Order 18, Rule

3, C.P.C., and that plaintiff having failed to prove his case, he is now attempting to dislodge the evidence let in by the defendants; and therefore, in

essence and in law, the present petitions have been filed under Order 18, Rule 3, C.P.C.

Balakrishna Udayar v. Vasudeva Aiyar L.R. 44 I.A. No. 261 at 267 is a case in which a Court passed an order without jurisdiction, and it was

held that it is a ""case decided"" and Section 115, C.P.C. would apply. It was further held as follows:

It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The

section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. And if the appellant''s contention be

correct, then if the Civil Court should absolutely and whimsically decline to exercise it''s jurisdiction and refuse to make any orders as to the filling

up of vacancies, no matter how many existed there would not, in a case such as the present, be any remedy available under this section and no

appeal would lie.

In Ramgulam Choudhary and Others Vs. Nawin Choudhary and Others, , it was held that, whether an order was a ''case decided'' depends

upon whether or not there was an adjudication for the purpose of suit or proceedings some right or obligation of parties in controversy, and the

order can be revised only if there was such an adjudication and suffered from jurisdictional error. It was further held that the word, ''case'' has to

be construed in a wider sense, so as to include also decisions at various stages of the suit, and that instance like allowing of disallowing questions in

examination and cross-examination, wrong admission of documents in evidence, confirming or setting aside pleader/ Commissioner''s report and

ordering fresh investigation may not be ''cases decided'' within the meaning of the expression in Section 115.

6 In Alekh Pradhan and Others Vs. Bhramar Pal and Another, dealing with an order allowing examination of the surveyor as a witness for the

plaintiff; it was held that no right or obligation of the parties in controversy in the suit claim came to be decided; and therefore, it is not a ''case

decided'' within Section 115, C.P.C.

The decision in Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, was relied upon. It was held therein as

follows:

The expression ''case'' is not limited in its import to the entirety of the matter in dispute in an action. The expression ''case'' is a word of

comprehensive import it includes a civil proceedings and is not restricted by anything contained in Section 115 of Code to the entirety of the

proceedings in a civil Court. To interpret the expression ''case'' as an entire proceeding only and not a part of the proceeding imposed an

unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where

it is most needed and may result in the perpetration of gross injustice. But every order of the court in the course of a suit does not amount to a case

decided. A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in

controversy; every order in the suit cannot be regarded as a ''case decided'' within the meaning of Section 115. By overruling an objection to

question put to a witness and allowing the question to be put, no case is decided.

In S.D. Jain v. Rakesh Jain, it was held

... They mere fact that an application for seeking a cross-examination of a deponent is reflected does not decide any right or obligation between the

parties. It is only a step towards the final adjudication of the case. In the circumstances, in my opinion, it does not amount to a ''case decided''

within the meaning of SECTION 115 of the Civil P.C.

Likewise, in The Fertilizer Corporation of India Ltd. Vs. Bharat Painters, , it was held that an order allowing recalling of the plaintiff for cross-

examination will not be ""any case which has been decided, and hence, a revision would not lie under such circumstance Section.

The reliefs claimed in the two petitions, whether allowed or rejected, results in finding out the truth of the claim made by the defendant, and if

evidence in this regard is not allowed to be adduced, the rights of the parties would be greatly prejudiced. As held by the Supreme Court, the

Court will have to adjudicate for the purposes of the suit upon the right or obligation of the parties in controversy, and hence the revision petitions

as filed are maintainable.

The other contention is that, in the absence of proper provision of law being invoked, these petitions cannot be ordered. On behalf of the

plaintiff, it is contended that even in the absence of provision of law, if the power is traced, then a Court could grant relief if it is extremely

unfortunate that this approach made by Court is being abused to the maximum. Trained lawyers, who draft petition and file them into Court, cannot

avoid reading C.P.C. It has become a regular practice just to refer to Section 151, C.P.C. and file any petition into Court. This sort of

irresponsible filing of petitions results in considerable delay, because contentions are raised that the petitions as filed are not maintainable, and

thereafter, on finding out the nature of the proceedings, the appropriate provision has to be traced. Unless the Court is immediately apprised of the

proper provision, the requirements prescribed in law under appropriate provisions are not made known to court. Then it passes a general order

based on Section 151, C.P.C. which only expects ends of justice to be achieved, and thereafter the procedural irregularities which occasion when

an order is passed in ignorance of the relevant provision of law, results in avoidable revisions being filed. In turn, it results in litigants to spend more

money and also prolongation of proceedings, and years roll by before the suit could be concluded. Either the CPC has to be amended so that

petitions without proper provision of law to be dismissed, or a stern view has to be taken by Courts holding the concerned counsel would be

responsible and make good the loss, for the omission to refer to the proper provision of law.

12 In the petitions filed in Court below, as stated above, no reference is made even to C.P.C. (In the typed set of papers furnished it is absent)

Defendants rely upon Abbas Bhai and Others Vs. T. Deivayani Ammal and Others, which takes the view that even though a wrong provision of

law is quoted, it is the duty of the Court to take note of the correct provision and apply it to the facts of the case.

Mr. R.S. Venkatchari, learned Counsel for defendants, submits that Order 18, Rule 3, C.P.C. is applicable, because rebuttal evidence is being

let in. Whereas Mr. Sarvabhauman, learned Counsel for the plaintiff, would state that Order 18, Rules 2(4) and 17A and Order 16, Rule 10(2)

and Section 151 C.P.C. apply to this case so that the suit could be re-opened, and the required evidence be produced by summoning the records.

Plaintiff claims that it is only when the first defendant was examined, it came to the knowledge of the plaintiff for the first time that out of the sale

consideration, a sum of RS. 30,000 was given by Kuppusamy Gounder of V.K.S Commission mundy, and alleged about the non-availability of

stamp papers, and therefore, it had become necessary to examine the stamp vender Renuka Ammal to show that she had stamps worth Rs.

10,000 and that by producing such evidence, it will be possible to show that what has been claimed by plaintiff regarding genuineness of the sale

deed is not based on false evidence. Before the first defendant was examined, there was no occasion at all for the plaintiff being aware of what has

been claimed to have been done by defendant. If he had put the plaintiff on notice about these facts earlier, certainly he would have summoned the

records from V.K.S. Commission Mundy and examined Renuka Ammal. Therefore, the instant case squarely falls under Order 18, Rules 2(4) and

17A and Order 16, Rule 10(2), C.P.C.

Yet Mr. R.S. Venkatachari, would submit that the instant case comes under Order 18, Rule 3, C.P.C. which prohibits rebuttal evidence being

let in, and that there had been no prior reservation made when plaintiff''s witnesses were examined. In support of this plea, he relied upon the

following decisions.

A Division Bench of Allahabd High Court in Rashidunnissa and Another Vs. Ata Rasool, held that if a party to a proceeding did not lead any

evidence in the first instance nor had he reserved any right to produce evidence in rebuttal after the defendant''s evidence had been closed, he

could not be allowed thereafter to produce evidence to prove the fraud or misrepresentation which he had alleged but had not proved, and that

Order 18, Rule 2, C.P.C. does not permit fresh evidence to be let in, after the close of the case.

Illapu Nookalamma Vs. Illapu Simchachalam, holds that the option given to the party under Order 18, Rule 3, C.P.C. is to be exercised, only

at or before the time when the other party that has got right to lead evidence begins and not after words.

AIR 1931 175 (Privy Council) holds that Order 10, Rule 2, C.P.C. is intended to be used only when the Court finds it necessary to obtain any

information from a party on any material questions relating to the suit, and cannot be employed to supersedes the procedure at trial, as prescribed

in Order 18, C.P.C.

The decision in Jaswant Kaur and Another Vs. Devinder Singh and Others, had interpreted the language used in Order 18, Rule 3, C.P.C. and

held that the last stage for exercising the option to reserve the right of rebuttal can well be before the other party begins his evidence. It also

cautioned by stating that overall strict view cannot also be taken about the modality of reserving the right of rebuttal. If there is any scope for

implied reservation, then it should not be negatived merely because it had not been done in express terms.

In Aranya Kumar Panda Vs. Chintamani Panda and Others, it was held that the law does not prescribe any particular stage at which the option

is to be exercised.

In M.S. Suresh Vs. K.V. Sudhakar, , it was held that Order 18 makes it abundantly clear as to how the trial should commence and who

should commence, and in what manner it may be reopened both for the defendant as well as for the plaintiff, depending on who is required to

commence the case.

These decisions relied upon do not take into account the amendments effected as early as 1976 in Rules 2(4) and 17-A of Order 18, C.P.C.

Order 18, Rule 3, C.P.C. will have to be read in conjunction with these amendments effected, and in a matter of this nature, when it does not

come within the limits of Order 18, Rule 3, C.P.C, but invites the application of the amendments effected under Central Act 104 of 1976, these

decisions will have no relevance to the fact and circumstances of this case.

By Central Act 104 of 1976, Order 18, Rules 2(4) and 17A, C.P.C. having been inducted, a new diamension had set in, for the hearing of suit

and for examination of witnesses. Order 18, Rule 2(4), C.P.C. being a non-obstanti provision, if valid, apposite and relevant reasons are given,

then any party to a proceeding could examine any witness at any stage of the hearing of the suit in respect of any evidence which was not known or

could not be produced despite due diligence; and if sufficient reasons are given, then such evidence could be adduced at the later stage, on such

terms as may appear to Court to be just. These enabling provisions had been made in order to avoid additional evidence to be adduce at appellate

stage, and to take away the rigour hitherto obtaining in shutting out evidence which could not be produced in time, and which would be very

relevant for proper determination of the dispute between the parties. The decisions relied on by Mr. R.S. Venkatachari do not take note of these

two essential amendments, which will have to be read along with Order 18, Rule 3, Adalat Choudhary Vs. Satan Choudhary and Others, by

taking note of Rule 17-A held that a party invoking it, has to make good cause and satisfy the court of the reasons which prevented him from

producing the same at a proper time. If the only reason which prevailed on the Court was that, it was not produced in time and that the plaintiff''s

case was closed, then such an order is liable to be set aside. Kama Ram v. Gowind Ram AIR 1980 P & H 180 also interprets Rule 17-A and

holds that, in a case where a party to a proceeding who could not produce the evidence at the time when he was leading evidence but produce

such evidence at a later stage of the hearing; it ought to have been allowed on sufficient cause being shown. Even before this amendment, in

Yasodamma v. Inderchand AIR Kar. 100 by relying upon Order 16, Rule 1, C.P.C. it was held that, even in a case where evidence on both sides

is closed and the matter is set down for arguments, because a petition was presented at a later stage seeking permission to adduce further

evidence, it ought not to have rejected in a case where good reasons are shown.

In S. Chandra Keerti v. Abdul Gaffar AIR 1971 Mys. 17, while dealing with the scope of Order 18, Rules 2 and 3 C.P.C., it was held that,

although the law does not prescribe a stage at which a party should apprise the court of its exercising the option under Rule 3, yet it is reasonable

that it should ;be done before it begins to adduce it''s evidence and in any case before the other party begins it''s evidence, so that the other party

may bear in mind that the party beginning has not closed his evidence, and that if the defendant did not exercise his option to produce rebuttal

evidence at any one of the above stages, he cannot avail himself of Rule 3.

As held, this view can no longer be sustained in such of those cases where sufficient reasons are given for failure to abide by Order 18, Rules 1

to 3, C.P.C., and in all such cases, even after closure of the case and before arguments, the evidence which would be relevant for the proper

determination of the suit could be adduced by any party to a proceeding.

In the instant case, till first defendant steps into the witness box, plaintiff was not aware of the evidence which is now relied upon regarding

non-availability of stamp papers or about the party who is now claimed to give provided the necessary/funds. This evidence now produced would

not have been known to the plaintiff whatever be the diligence he was possessed of. Therefore, in the light of order 18 Rules 2(4) and 17A,

C.P.C. plaintiff is enabled to maintain the petitions filed in the trial Court, and hence, these revision petitions are allowed. No Costs.