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Doshei Dei and ors. Vs. Rama Routa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 338 of 1980
Judge
Reported inAIR1985Ori77; 1985(I)OLR12
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 6, Rule 2
AppellantDoshei Dei and ors.
RespondentRama Routa and ors.
Appellant AdvocateS.K. Dey, Adv.
Respondent AdvocateN.C. Pati, Adv. for ;P.K. Misra, Adv.
DispositionPetition allowed
Cases ReferredMani Dhal v. Padma Charan Dhal
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....k.p. mohapatra, j. 1. this revision is directed against the order passed by the learned munsif, puri rejecting the plaintiffs prayer to lead further evidence for proof of documents.2. in order to appreciate the point which arises for consideration, it is necessary that the facts pleaded by both parties to the suit be elucidated in brief. the suit land bears c s. khata no. 394 with an area of ac. order 27 appertaining to c. s. khata no. 1022 in village samanga with nine standing cocoanut plants acording to the plaintiffs (petitioners) the suit land previously belonged to late durga charan jagdeb ray. he sold the same in favour of late jogi pradhan predecessor-in-interest of the plaintifs by virtue of a registered saledeed executed on 26-1-44. late jogi pradhan was in possession thereof......
Judgment:

K.P. Mohapatra, J.

1. This revision is directed against the order passed by the learned Munsif, Puri rejecting the plaintiffs prayer to lead further evidence for proof of documents.

2. In order to appreciate the point which arises for consideration, it is necessary that the facts pleaded by both parties to the suit be elucidated in brief. The suit land bears C S. Khata No. 394 with an area of Ac. Order 27 appertaining to C. S. Khata No. 1022 in village Samanga with nine standing cocoanut plants Acording to the plaintiffs (petitioners) the suit land previously belonged to late Durga Charan Jagdeb Ray. He sold the same in favour of late Jogi Pradhan predecessor-in-interest of the plaintifs by virtue of a registered saledeed executed on 26-1-44. Late Jogi Pradhan was in possession thereof. After his death there was a partition amongst his sons and the suit land fell to the share of the plaintiffs' branch. The plaintiffs had been in peaceful possession thereof on the strength of their own title. The defendants (opposite parties) own the adjoining C. S. Plot No. 395 on the south of the disputed land which they use as homestead They invaded the plaintiffs' right in respect of the suit land by removing the green fence and plucking cocoanuts. On account of such action, the plaintiffs filed the suit for declaration of title in respect of the suit land, for confirmation of possession or in the alternative for recovery of possession and for permanent injunction The case of the defendants on the other hand, is that C S. Plot No. 394 has an area of Ac. 0.03. In the settlement operation of the year 1928 the suit plot was recorded in the names of Natha Pani and Dhani Pani. After their death, the widow of Nathe Pani named Kadi Bewa was in possession thereoi The defendants with the consent of Kadi Bewa possessed the suit land and in course of time they have acquired title in respect thereof by adverse possession

3. Both the parties came up to the trial and the defence evidence was closed on 6-5-80. In the meanwhile, on 25-4-80 the plaintiffs made a petition to the Court stating therein that the office copy of a notice and the reply thereto proved by Banshidhar Naik (P.W.2) had not been admitted into evidence and marked as exhibits which should be done. On 6-5-80 i.e. the date when the defendants closed their evidence, the plaintiffs filed another petition stating therein that Geura Rout, predecessor in interest of the defendants, had given a reply to the notice which contained his signature. This document could not be proved through any of the defence witnesses. Therefore, opportunity should be given to the plaintiffs to adduce further evidence in order to prove the reply to the notice given by Goura Rout duly signed by him The defendants raised objection mainly on the ground that the contents of the reply given by Goura Rout in response to the notice were not pleaded in the plaint and so the plaintiffs cannot adduce evidence to prove a fact not pleaded. Accordingly, examination of further witnesses for proof of the reply given by Goura Rout is impermissible under law. The learned Munsif observed in the impugned order that notice was issued to Goura Rout in the year 1961 andthe alleged reply was of the year 1968. The suit was instituted in the year 1976. As the reply of Goura Raut contained an admission to the effect that he had no right title or interest over the disputed land, it was a material piece of document and so the fact should have been specifically pleaded in the plaint As it was not done, the plaintiffs cannot be allowed to adduce evidence to the aforesaid effect Further, the plaintiffs had produced the document which was on record when they adduced evidence. They did not take special care to prove the same. Therefore, failure to do so cannot be condoned and they cannot be permitted to adduce evidence for proof of the said document at the fag end of the trial of the suit accordingly he rejected the petition.

4. The following two points arise for consideration in this case :

1) Whether the 'Civil ' Revision is maintainable in view of the provisions of sub-section (1) of Section 115 of the Civil Procedure Code?

2) Whether in the facts and circumstances of the case the contents of a document containing an admission should have specifically found place in the pleadings and absence thereof precluded the party, namely, the plaintiffs from adducing evidence to prove the document?

5. Mr. N. C. Pati, learned counsel appearing for the opposite parties, raised a preliminary objection and contended that the Civil Revision is not maintainable in view of the provisions contained in Sub-section (1) of Section 115 of the Code as amended in 1976, in so far as, rejection of the plaintiffs prayer to examine witnesses to prove documents was not a 'case decided' within the meaning of the explanation contained in the aforesaid section. Mr. S. K. Dey, learned counsel appearing for the petitioners, on the other hand urged that whenever by an impugned order of the trial court there has been failure of justice, the revisional jurisdiction under Section 115 of the Code ought to be exercised It is, therefore necessary to consider as to what is the meaning and import of the expression a 'case decided'' and whether the scope and ambit of Section 115 of the Code after the amendment of the year 1976 have been narrowed down or widened In AIR 1964 SC 497 Major S. S. Khanna v. Brig. F. J. Dillon, it was observed as under:

'The expression 'case' is a word of comprehensive import : it includes civil proceedings other than suits, and is not restricted by anything contained in the Section to the entirety of the proceeding in a Civil Court To interpret the expression 'case' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of power of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice.'

In AIR 1970 SC 406, Baldevdas Shivlal v. Filmistan Distributors (India) Pvt Ltd the following important observation was made:

'The expression 'case' is not limited in its import to the entirety of the matter in dispute in an action. This Court observed in Major S. S. Khanna v. Brig F. J. Dillon( 1964) 4 SCR 409 : AIR 1964 SC 497, that the expression ' case' is a word of comprehensive import; it includes a civil proceeding and is not restricted by any thing contained in Section 115 of the Code to the entirety of the proceeding in a Civil Court To interpret the expression' case' as an entire proceeding only and not a part of the proceeding imposes 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 it was not decided in Major S. S. Khanna's case, (1964) 4 SCR 409 : AIR 1964 SC 497 (supra) that every order of the Court in the course of a suit amounts 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 of the Code of Civil Procedure.'

In (1978) 45 Cut LT75 : (AIR 1978 Orissa58), Alakh Pradhan v. Bhramar Pal Acharya,J. while interpreting Order 8, Rules 2 and 4 ofthe Code and deciding that the Court has the. power and jurisdiction to direct or permit anyparty to examine any witness at any stage hadoccasion to further consider the question ofmaintainability of the civil revision accordingto amended Section 115 of the Code. Thelearned Judge relied upon the Supreme Courtdecision reported in AIR 1970 SC 4061 supra) and held that every order of the Court in course of a suit does not amount to a 'case decided'. Only those orders which decided upon any right or obligation of parties, are deemed to be cases decided In another decision reported in (1978) 45 Cut LT 421 : (AIR 1978 Orissa 179), Tata Iron & Steel Co. Ltd v. Rajarishi Exports (PI Ltd Acharya, J. held that the revisional power of this Court is circumscribed by the provisions of Section 115 of the Code. It is well settled that the special and extraordinary revisional jurisdiction of this Court is exercised only to promote justice, and that power should not be exercised unless it is found that the party approaching the Court under Section 115 of the Code has no other remedy in law open to him to set at right his grievance, if any. Moreover, as provided in Clause (b) of the proviso to Section 115 of the Code the Court shall not exercise its revisional jurisdiction if it is not shown that the impugned order if allowed to stand would occasion a failure of justice or cause irreparable injury against whom it was made. The scope and ambit of Sectional 15 of the Code was thus widened In AIR 1978 J & K 78, Sri Ram v. Ashwani Kumar, a Division Bench considered the question as to whether an interlocutory order issuing a commission for examination * of witness amounts to a 'case decided'. The Court answered the question in the affiramative and while doing so, examined the scope and ambit of the jurisdiction conferred by Section 115 of the Code as amended Relying upon AIR 1964 SC 497 (supra) it was held that whether a particular order amounts to a 'case decided' or not would depend upon the facts and circumstances of each case and it is neither desirable nor possible to lay down a genera! formula as to when an interlocutory order may amount to a 'case decided'. One such instance when an interlocutory order can be said to amount to a 'case' decided would be when the, controversy settled by the interlocutory order is such that it cannot be reagitated either in appeal against the final order or otherwise. Thus, their Lordships of the Jammu & Kashmir High Court widened the scope and ambit of Section 115 of the Code. In a Division Blench decision of the Calcutta High Court reported in AIR 1978 Cal 264, Food Corporation of India v. Birendra Nath Dhar, reference' was made to the principle laid down in the case reported in AIR 1970 SC 406 (supra) and it was held that an orderdirecting production of documents is a case decided With regard to the scope and ambit of Section 115 of the Code, it was held that the explanation to the amended Section 115 of the Code clearly lays down that any order that may be passed by a Court subordinate to the High Court in course of a suit or other proceeding is a case decided Further, though by an order, a case may be said to be decided yet it would not be revisable unless there is a question of jurisdiction within the meaning of Clause (a), (b) or (c) of Sub-section (1) of Section 115 of the Code and unless it is an order as contemplated by Clause (a) or Clause (b) of the proviso. There is also a further restriction to the effect that in exercise of revisional jurisdiction the High Court shall not vary or reverse any decree or order against which an appeal lies either to the High-Court or to any Court subordinate thereto. A party can also move the High Court to exercise its revisional jurisdiction if an order has occasioned a failure of justice and/or has caused irreparable injury to him Though not expressly, by implication the scope and ambit of Section 115 of 'the Code has been widened In (1979) 47 Cut LT 266: (AIR 1979 Orissa 140), Sabitri Debi v. Baikuntha Das, P. K. Mohanti, J., had occasion to examine the question whether an order refusing to send a document for experts examination was one within the ambit of a 'case which has been decided'. , While deciding the question in the negative' because no right or obligation of any of the parties was determined by the impugned order of refusal, the learned Judge relied upon the decision reported in AIR 1970 SC 406 (supra) and making a reference to AIR 1978 SC 47, Madhu Limaye v. State of Maharashtra, hold as follows:

'No doubt, under the Explanation to the amended Section 115, Civil Procedure Code, the expression ' any case which has been decided' includes any order made, or any order deciding an issue- in the course of the suit or other proceeding That does not mean that every interlocutory order passed during the' progress of the suit is to be regarded as a case decided within the meaning of Section 115, Civil Procedure Code. An interlocutory order-can be said to be a case decided if it determines some right or obligation of the parties for the purpose of the suit. In case every interlocutory order is held to be revisable by the High Court the very purpose of enacting the provisions of Section 115. Civil Procedure Code will befrustrated'

Thus the scope and ambit of Section 115 of theCode was narrowed In the case reported in AIR 1979 Andh Pra 8, Orugunati Ranga-nayakamma v. Maduri Lakshminarasamma, a petition under Order 26, Rule 4 of the Code for examination of a witness on commission was allowed The aggrieved party challenged the order in revision. One of the questions that arose for consideration was whether the Court should exercise its jurisdiction under Section 115 of the Code. The learned single Judge held that under the amended Code, if a point can be raised by way of appeal the same cannot be raised by way of revision. But if there will be positive miscarriage of justice as in that case, an order passed. in erroneous exercise of discretion which can be equated to a material irregularity resulting in miscarriage of justice can be revised under Section 115 of the Code without leaving the matter to be decided in an appeal preferred ultimately against the decision in the suit. Emphasis in' this case was on miscarriage of justice which extends the scope for exercise of revisional powers under Section 115 of the Code. In the decision reported in (1979) 47 Cut LT 303, Nagendranath Roy v. Ramaprasad Panda, Acharya, J. held as follows:

' By the amendment of the Civil Procedure Code in 1976, Section 115, of the Code has been amended by the addition of a proviso to the main section, Sub-section (2) thereto, and an explanation of the expression'vany case which has been decided'. By addition the aforesaid explanation to Section 115, the scope and ambit of a revision to this court have been widened, and the limitation which was pur on the expression 'any case which has been decided' in the old Section 115, Civil Procedure Code, as per the decision reported in Baldevdas v. Filmistan Distributors, which was based on the unam.ended Section 115, no longer holds good in view of the amended provision of this Section'

Apart from the fact that a,distinction was drawn with regard to the principle laid down in AIR 1970 SC 406 (supra) the learned Judge held that the scope and ambit of revisional jurisdiction under the amended Section 115 of the Code have been widened In a decision reported in AIR 1981 Gau 93. Mangal Chand Chauhan v. Ratan Lal Nahata the question that arose for consideration was whether rejection of an adjournment petition for production of witnesses during trial of a suit amounted to a 'case decided within the meaning of the explanation to Section 115 of theCode. Reference was made to AIR 1964 SC 497 and AIR 1970 SC 406 (supra) and it was held by a learned single Judge that the order rejecting the adjournment petition referred to above amounted to a 'case decided'. In this case reference was made to a decision reported in AIR 1979 Punj & Har 76, Smt Harvinder Kaur v. Godha Ram, in which a Division Bench did not accept the argument that the explanation below Section 115 of the Code widened the scope of the expression 'case decided' and held that revision Would lie against an interlocutory order only if it determines or adjudicates some rights or obligations of the party in controversy. The learned single Judge subscribed to the aforesaid view because of the restriction imposed by the proviso which narrows the scope and ambit of Section 115 of the Code. In AIR 1982 Raj 77, Harish v. SomNath, the question that came up for consideration before a learned single Judge was whether an order dismissing an application to frame an additional issue under Order 14, Rule 5 of the Code amounts to a 'case decided'. While holding that dismissal of such an application thereby refusing to frame additional issues would certainly be an adjudication in the course of a suit of some right or obligation of the parties in controversyand would fall within the expression 'case decided', he relied upon the decisions reported in AIR 1964 SC 497 and AIR 1970 SC 406 (supra) with regard to the scope and ambit of Section 115 of the Code and further held that the expression 'any case which has been decided' includes an order made in a suit or other proceeding. In AIR 1983 Pat 35, Mahanth Som Prakash Das v. Sri Udasin Panchayati Akhara Bara, a learned single Judge in a lucid judgment while considering the legality and propriety of an order refusing to entertain certain documents on the record held that a civil revision will be maintainable against any order which determines the rights and obligations of the parties in controversy. If the impugned order is allowed to stand and will occasion a failure of justice or cause irreparable injury to the party against whom it was made, then a revision against such order will lie. A civil revision will also lie if no appeal can be preferred against the order impugned in revision. Applying the principle laid down in AIR 1970 SC 406 (supra) the learned Judge observed that the meaning of the expression 'case decided' has been widened by virtue of the explanation to sub- Section (l) of Section 115 and the said decision ofSupreme Court is still good law despite the amendment to Section 115 of the Code. Ultimately the learned Judge held that to file a document under Order 13, Rules 1 and 2 of the Code is a right of a party in a suit. If that valuable right is denied, then that amounts to a decision in a case within the meaning of Section 115 of the Code. In a decision reported in (1984) 58 Cut LT 311 : (AIR 1983 NOC 62), S. N. Dash v. Bijaya Ketan Mohanty, Behera, J., examined the scope of amended Section 115 with reference to the report of the Joint Committee and clause 45 of the Code of Civil Procedure (Amendment) Bill, 1974 and held that the High Court is debarred to vary and reverse any order passed in the course of a suit unless it finds that the said order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made. The second part of the finding gives the impression that the scope and ambit of Section 115 of the Code is wide enough for the High Court to interfere with an order in its revisional jurisdiction which if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it is made. In a very recent decision of this Court, on a review of the decisions of the Supreme Court and different High Courts D. P. Mohapatra, J. in a lucid judgment reported in (1984) 1 Orissa LR '967, Ramesh Lal Shantuka v. Suresh Lal Shantuka, held as follows : --

'From the observations made by different Courts in the case referred to above, it is clear that the meaning of the term 'case decided' has been widened after the amendment introducing the explanation to Sub-section (2) of Section 115, C.P.C. But in spite of this extended meaning the Courts have held that any and every order passed in the course of a suit does not amount to a 'case decided' and the order must relate to adjudication of some right or obligation of the parties in controversy for this purpose. It is further apparent from the decisions that even if an orde amounts to a 'case decided' and there is a question of jurisdiction within the meaning of Clauses (a), (b) and (c) of Sub-section (1) of Section 115, still it must satisfy Clauses (a) and Clause (b) of the Proviso of Section 115(1), i.e., the order, if it had been made in favour of the party applying for the revision, would have finally disposed of the suit or other proceeding, or the order, if allowed to stand,would occasion a failure of justice or cause irreparable injury to the part against whom it is made. It is pertinent to mention here that this proviso has also been added by amendment.'

6. It will not be out of place to quote the 'Objects and Reasos' behind the amendment of Section 115 by the Code of Civil Procedure (Amendment Act) (104 of 1976) :-

'By clause 45 of the Bill, Section 115 of the Code was proposed to be omitted. The question whether it is at all necessary to retain Section 115 was carefully considered by the Committee. The Law Commission has expressed the view, that in view of Article 227 of the Constitution Section 115 of the Code is no longer necessary. The Committee, however, fill that the remedy provided by Article 227 of the Constitution is likely to cause more delay and involve more expenditure. The remedy provided in Section 115 is, on the other hand, cheap and easy. The Committee, therefore, felt that Section 115, which serves a useful purpose, need not be altogether omitted, particularly on the ground that an alternative remedy is available under Art. 227 of the Constitution.

The Committee, however, feel that, in addition to the restrictions contained in Section 115, an overall restriction on the scope of application for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty-seventh Reports, the Committee recommended that Section 115 of the Code should be retained subject to the modification that no revision application should lie against an interlocutory order unless either of the following conditions is satisfied, namely : --

(i) That if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceedings : or

(ii) that if the order, if allowed to stand, is likely to occasion failure of justice or cause an irreparable injury.

The Committee feel that the expression 'case decided' should be defined so that the doubt as to whether Section 115 applies to an interlocutory order may be set at rest. Accordingly, the Committee have added a Proviso and an Explanation to Section 115.'

7. On a conspectus of the principles enunciated by this Court and other High Courtsand the objectives behind the legislative change, the law with regard to the scope and ambit of Section 115 of the Code as amended in 1976 seems to be fairly well settled. The meaning of the expression 'case decided' has been widened rather than being narrowed. Every order passed by a Court in the course of a suit or proceeding 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 or proceeding some right or obligation of the parties in controversy. Where a subordinate Court exercises ajurisdiction not vested in it, or has failed to exercise a jurisdiction so vested, or has exercised its jurisdiction illegally or with material irregularity, a revision will lie. Where an order passed by a Court if allowed to stand would occasion a failure of justice and/or cause irreparable injury to a party against whom it is made, the revisional jurisdiction can be invoked. If an order that has been made in favour of the party applying for revision would have finally disposed of the suit or other proceeding then also a revision would be maintainable. Further, if no appeal lies against an order either to the High Court or to any Court subordinate thereto, a revision will lie. Unless the scope and ambit of Section 115 is widened in terms of the provisions thereof, parties will suffer and justice will be denied to them when erring courts pass illegal orders in suits and proceedings', in so far as, they will be left there is no provision of appeal against such illegal orders. In my considered opinion this is precisely the mandate of the provisions of Section 115 of the Code.

8. Mr. S. K. Dey, learned counsel appearing for the petitioner, contended that the trial Court took an absolutely wrong view when he observed in the impugned order that facts relating to issuance of the notice and the reply thereto containing an admission that Goura Raut, father of defendant No. 2 had neither title nor possession in respect of the suit land should have been pleaded in the plaint. Mr. N. C. Pati, learned counsel appearing for the opposite parties, on the other hand, urged that such important facts having a vital bearing of the main question in controversy in the suit i.e. title and possession to the suit land ought to have been pleaded. When such important facts were omitted from the pleadings, no evidence in support of such facts could be adduced. Therefore, the petitions filed by the plaintiffs were rightly rejected. The documentssought to be proved by the plaintiffs are a notice issued by the predecessor-in-interest of the plaintiffs to Goura Raut, father of defendant No. 2, postal receipt, postal A. D. and the reply alleged to have been sent by Goura Raut to the predecessor-in-interest of the plaintiffs declaring therein as a fact of admission that he had no title nor possession in respect of the suit land. The facts alleged in the plaint would reveal that the suit is based on a sale-deed dated 26-1-1944 and a subsequent partition and not on the basis of the alleged admission made by Goura Raut, father of defendant No. 2. In order to prove their title and possession in respect of the suit Jand and the further fact that the predecessor-in-interest of the defendants, namely Goura Raul admitted that he had no claim in respect thereof, the plaintiffs sought to prove the documents as pieces of evidence. It is, therefore, amply clear that the documents sought to be proved through witnesses were pieces of evidence in support of the plaintiffs' claim of title and possession in respect of the suit land. According to Order 6, Rule 2 of the Code, every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not evidence by which they are to be proved. In view of this provision it was not necessary for the plaintiffs to introduce evidence in the plaint and state about the notice and the admission. The trial court did not obviously take notice of this important provision. In a case reported in AIR 1925 Pat 410, Thakur Prasad Sahu v. Mohammed Musa, a Division Bench strictly took the same view as contained in Order 6, Rule 2 of the Code. In another case reported in AIR 1967 SC 1124, Girijanandini Devi v. Bijendra Narain Choudhary, their Lordships of the Supreme Court had occasion to examine the scope and ambit of Order 6, Rules 2 and 17 of the Code. They made the following important observation :

'Whether evidence in support of a party's case is reliable may be raised by the other party without incorporating the contention relating thereto in his pleading. If the rule suggested by counsel for the appellants were to be followed, trial of suits would be highly inconvenient, if not impossible, because at every stage whether a party contends that the evidence relied upon by the other side is unreliable he would in the first instance be required to amend his pleading and to set upthat case. The Code of Civil Procedure does not contemplate any such procedure and in practice it would, if insisted upon be extremely cumbersome and would lead to great delay and in some cases to serious injustice.'

Thus, having regard to the provisions of Order 6, Rule 2 of the Code and the decisions referred to above, I am clearly of the opinion that it was not necessary for the plaintiffs to specifically state in the plaint about issuance of the notice and the reply thereto which were matters of evidence. Therefore, the trial Court committe an illegality and exercised its jurisdiction with material irregularity in coming to the conclusion that such evidence should have been pleaded in the plaint. Such a view cannot be supported.

9. The plaintiffs sought to prove the notice given by their predecessor-in-interest to Goura Raut, father of defendant No. 2 and the reply given by the latter in favour of the former admitting that he had no title and possession in respect of the suit land through P. W. 2 who could not prove the same and consequently the documents could not be admitted into evidence. If P. W. 2 could prove the documents when he was examined on 6-5-1980, the plaintiffs would not have faced any difficulty for admission of these documents because, it is found from the evidence of P. W. 2 that no objection was raised by the defendants while questions were put to P. W. 2 regarding these documents. It is only when he could not prove the documents and the plaintiffs wanted to examine other witnesses and filed petitions therefor that objection was raised by the defendants. It is thus apparent that the plaintiffs made efforts, to prove the documents being material evidence in support of their case at the right time, but did not succeed to get them admitted into evidence because P. W. 2 could not prove the same and defendant No. 2 did not admit the reply of the notice said to have been sent by his father late Goura Raut. According to Order 18 Rule 2(4) of the Code which was brought to the statute book by way of amendment in the year 1976, any Court in exercise of its judicial discretion and after recording reasons is competent to direct or permit any party to examine any witness at any stage. This new provision seems to have been introduced for final adjudication of adispute between parties to the suit after giving full opportunity to them to adduce evidence, both oral and documentary, for proof of their respective cases. In a recent decision reported in (1984) 57 Cut LT 546 : (AIR 1984 Orissa 169), Mani Dhal v. Padma Charan Dhal, R. C. Patnaik, J. took the view that the amendment is in furtherance of the cause of justice and for preventing miscarriage of justice. It confers a discretional jurisdiction on the Court to be invoked at a stage where a party cannot adduce evidence as of right having regard to the sequence of recording of evidence. Being a discretionary jurisdiction, however, it has to be exercised cautiously and with circumspection. Where the attempt is mala fide, different considerations will arise because, mala fides forfeit entitlement to discretion. Where the conduct is bona fide, the doors of discretion are ajar. I am in complete agreement with this view. Learned counsel for the opposite parties drew my attention to an unreported decision of this Court in Civil Revision No. 93 of 1976 disposed of on 27-1-1977 in which R. N. Misra, J. (as he then was) upheld the trial Court's order refusing to recall P. W. 4, a handwriting expert so as to examine him in detail and held that the order did not amount to a case decided as explained in AIR 1970 SC 406 (supra). The case was decided on the facts of its own and the dictum is inapplicable to the present case.

10. In the present case the plaintiffs produced the documents and sought to prove the same at the right moment through P. W. 2 allowing sufficient time to the defendants to adduce rebuttal evidence, if any. Their action was bona fide. If the documents are real, they could be proved through witnesses if produced by the plaintiffs. The defendants can also produce further evidence of rebuttal if the documents were fabricated. There is no reason to shut material evidence which the plaintiffs intend to introduce by way of proof. If the impugned order is allowed to stand, there shall be failure of justice preventing fair and final adjudication of the controversy between the parties. Therefore, it is a fit case in which the plaintiffs should be given one more opportunity to prove the documents in which . case the defendants should also be given opportunity to adduce evidence or rebuttal. In refusing the plaintiffs' prayer the trial Court committeed an illegality and exercised its jurisdiction with material irregularity Theimpugned order, therefore, cannot be sustained.

11. In the result, the Civil Revision is allowed and the impugned order is set aside subject to the observations made. Parties shall bear their own costs.


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