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Puny Kalu and anr. Vs. Sankar Kalu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 362 of 1960
Judge
Reported inAIR1961MP348
ActsCode of Civil Procedure (CPC) , 1908 - Order 11, Rule 14
AppellantPuny Kalu and anr.
RespondentSankar Kalu
Advocates:S.L. Dubey, Adv.
DispositionApplication dismissed
Excerpt:
.....for good reasons of the kind mentioned in the approoriate provisions themselves. for the judge to sit on as an umpire without moving a finger to help, and if necessary even to prompt, either party to produce what may be best in its interest, can be a very serious injustice indeed......to sit on as an umpire without moving a finger to help, and if necessary even to prompt, either party to produce what may be best in its interest, can be a very serious injustice indeed.3. but that certainly does not mean that the judge can act arbitrarily or do something which in effect places one party at an unconscionable disadvantage. if one of the parties has already acquired an interest by limitation or otherwise, the court is helpless. again the court may not by its actions either allow a party to produce on the record any dubious material or let it have its way ex parts without opponent having full opportunity to cross examine, counter and comment.if it is oral evidence, or material of patently doubtful nature coming into existence after the commencement of the dispute, then.....
Judgment:
ORDER

H.R. Krishnan, J.

1. This is an application by the defendant in a suit in which at the stage of preparing the judgment, the Civil Judge has suo motu ordered that 'the plaintiff would suffer injustice, if certain evidence consisting of preexisting public documents were not brought on record'. Accordingly the judgment wag stayed and the plaintiff was permitted to produce them into evidence. Obviously the defendant should get 'an opportunity to amend his written statement, recall and cross examine the plaintiffs witnesses in regard to the new material and adduce evidence of his own, to counter what has been permitted to be brought on the record at this stage by the plaintiff. He is going to get this opportunity and in any case it is not his grievance here. The grievance is that at this late stage, the Civil Judge should not, acting suo motu, have permitted this new material to come into the record.

2. Some rulings have been cited following the well known principle that parties to litigation-should file their documents and adduce their evidence at the appropriate stage laid down in the Code and should only be allowed to do so at the later stages for good reasons of the kind mentioned in the approoriate provisions themselves. It is unnecessary to discuss those rulings because their validity is beyound doubt, and they govern cases when further evidence is sought in at the instance of the party concerned. They have no application to a case where the judge, finding that he cannot do justice to the parties unless certain material whose existence has been indicated in the record but which has not been exhibited in the appropriate manner, is brought into evidence and examined for what it is worth.

In this regard the Court acting suo motu has wider powers than when it acts on the invitationof the party. If it finds that to do justice to the case and to arrive at a fair and complete decision, it should permit the production, and in fact it should call the party concerned to produce what it has not already done, and what it might not on its motion be able to do at that stage. It would really be failing in its duty if it went on to dispose of the case on the materials before it which, it feels itself, are incomplete.

The old theory propounded by certain people in the last century in England that the Judge is only an umpire over the battle of wits between learned counsel on both sides, is wrong and dangerous even in that country, though there, one finds no very great disparity between the intelligence, skill and legal acumen on the sides of the parties to litigation. In our country such disparity can often be very considerable; for the Judge to sit on as an umpire without moving a finger to help, and if necessary even to prompt, either party to produce what may be best in its interest, can be a very serious injustice indeed.

3. But that certainly does not mean that the Judge can act arbitrarily or do something which in effect places one party at an unconscionable disadvantage. If one of the parties has already acquired an interest by limitation or otherwise, the Court is helpless. Again the Court may not by its actions either allow a party to produce on the record any dubious material or let it have its way ex parts without opponent having full opportunity to cross examine, counter and comment.

If it is oral evidence, or material of patently doubtful nature coming into existence after the commencement of the dispute, then the Court should not allow it to be adduced at any late stage. On the other hand, if it is prima facie non suspect, being any public document, and if it existed before the commencement of the dispute, then the Court may suo motu ask the party interested to produce it.

4. It is pointed out by learned counsel for the applicant that the Court has not ordered their production at this late stage for interest of justice or to enable it to pronounce a complete judgment, but because 'the case of the plaintiff will suffer if they are not admitted as he relies on them in support of his case.' It is almost suggested that the judge is having a soft corner for the plaintiff, but this criticism is not called for. All that it means is that the non-production of these public documents will affect the plaintiff adversely to 3 degree out of proportion to the negligence on his part to take the formal steps.

5. It is also beyond doubt that the defendant should get an opportunity already mentioned and may, in addition, seek to be compensated by special costs for the inconvenience caused to him by' the plaintiff's want of diligence and the Court's proper decision not to let him suffer for it.

6. The application is summarily dismissed.


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